ARCHIVED — Darren Best

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submission from Darren Best received on September 16, 2001 via e-mail

Subject: Copyright reform comments

PDF Version

Darren Best
(address removed)
September 15, 2001


Intellectual Property Policy Directorate
Industry Canada
235 Queen Street, 5th Floor West
Ottawa, ON
K1A 0H5

Re: Comments - Government of Canada Copyright Reform


To the members of the departments:

I would like to offer my opinion on your Consultation Papers on Copyright Reform, published June 22, 2001. Specifically, my comments focus on the document entitled “Consultation Paper on Digital Copyright Reform”

I have divided up my comments into two sections: one section for the document found on your website, located at:
http://strategis.ic.gc.ca/SSG/rp01100e.html
and one for my consolidated comment on copyright law in Canada.

Thank you for the opportunity to comment, and I hope that one person’s opinion can make a difference.

Yours truly,




Darren Best


Consultation Paper on Digital Copyright Issues

Introduction

In the Introduction, the departments raise fundamental and interrelated questions near the end of the section. These (paraphrased) questions include:
• abWhat are the appropriate balances in the digitally networked environment? Do new technologies upset these balances? If so, does it impede legitimate dissemination online? If so, what would restore the balances?
• abDo challanges to copyright represent challenges to copyright principles or challenges to existing business models?
• abWhen is legislative intervention appropriate, given the unknown nature of future technologies and business models?

The departments ask:

.... , do the approaches suggested in this paper contribute to a copyright framework which promotes Canadian public policy objectives?

My response:

In many places in the document, the departments to not explicitly say what their recommendations are. But in regards to their initial list of questions, I would say that:

• abThe balances between rights holders, intermediaries, and users are not “upset” by a digitally networked environment. The fundamental protections of the content’s distribution and use are already set in current copyright law. The methods by which content is created, distributed, and used may change, but the rights attached to all parties should not. I would argue that many past attempts to balance these rights through copyright law have already been eroding the rights to users unnecessarily.

• abThe “challenges” to copyright are absolutely challenges to current business and distribution models, not challenges to core copyright issues. Copyright in its ideological state has survived for hundreds of years, despite many new technologies which have emerged in the meantime. Content providers have always battled to move protections in their own favour (and have succeeded, slowly and surely). The difference now is that the rights holders are larger and more influential.

• abLegislative intervention is an appropriate response when a new technology makes it impossible to enforce the rights of copyright holder, intermediary, or user. To that end, there should be protections available to content providers so that they can exercise their right to copyright. By the same token, there should be protections to users and society to ensure their rights under the spirit of copyright. Any reforms to legislation must not be to the benefit of one side at the expense of the other. In fact, there may be opportunity to restore rights to users that have been lost over time (such as the reduction in time for protection of certain types of content to a more reasonable period of time), but I realize the futility of such a suggestion.

The Proposals



Making Available

The departments suggest the granting of performers and sound recording makers a right of “making available” the content in an on-demand format in an online environment. They ask:

1) How would a “making available” right affect the balances among the various copyright interests?

My response:

Certainly the copyright rights holders have the right to determine how their works are to be publicly distributed. If they do not wish to make their content available online, I believe that they have that right. Therefore, someone publicly distributing content (for a fee or otherwise) on the Internet should not be permitted unless granted that right by whomever holds the copyright.

2) In which respects might such a right require limitations or be subject to exceptions?

My response:

The sticking point with this is how the information being “available” online is defined. For example, I do not think that it is against my fair use of a copyrighted work to store digitized versions of my CD collection on a secure server, so that I can listen to them over the Internet while I am at work. In this scenario, the content would be used by anyone other than myself. The work is “available”, it is not, however, “publicly available”.

If the intent of this provision is to give rights holders a hammer with which to universally declare that all copies of a work on the Internet is “illegal”, then I would object.

My other concern would arise from what definition is used for the term “online”. Certainly a public repository such as an FTP site qualifies. Peer-to-Peer networks (such as Napster and Gnutella) also qualify, in my opinion. What about wireless networks? New paradigms of information sharing we haven’t even conceived of yet?

Finally, the prescribed response to infringement of this right must be against the perpetrators, not the technology. This relates to the “Technological Measures” section below.

3) In which respects do existing rights ... fail to provide a measure of control which is comparable to a distinct “making available” right?

My response:

I am not clear on specific rights currently given to rights holders in the recording industry (where this provision seems to be specifically aimed). Therefore, I have no comment to this question.



Legal Protection of Technological Measures

This section deals with the most controversial part of copyright reform. Tellingly, the departments in the paper have outlined many of the arguments for and against legislating the protection of technological measures, but have not reached any suggestions (or are not disclosing their opinions at this time). Therefore, I would expect and demand that there should be another call for public input when the departments actually make a proposal that addresses this issue.

That said, they ask:

1) .... , what factors suggest legislative intervention at this time?

My response:

The only factor suggesting legislative intervention of this sort is the desire of media corporations locked into existing business models not wanting to adapt to new technologies. Further, it gives them a weapon they never had in the analogue world to restrict current rights to information.

The question should read “.... , what factors suggest no legislative intervention at this time?” To which a few answers would be:
• abencourage better technology for copy protection;
• abencourage technological research without fear of legal proceedings;
• abensure that devices that have infringing and non-infringing uses are not caught in legal limbo;
• abensure that content is able to return to the public domain, as is required by copyright.

On top of all this, the industry that would benefit from this legislation is not even suffering as a consequence of not having technological measures protection. Media corporations are stronger and more profitable than ever. It is not as if thousands of jobs are on the line here: this is not an industry that needs additional protection to ensure its survival.

2) .... , what factors should be considered determinative in deciding whether circumvention .... ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?

My response:

Devices do not, in my opinion, have any place in the Copyright Act, for the stated reason that a device that can be used to infringe on copyright can always also be used for non-copyrighted works. The device may also be used for an entirely different purpose. An example of this is a CD-ROM burner. It can be used for copying the new album from the latest “boy band”, for copying a recording of me playing a Mozart piece on piano, or for backing up my data files for archival storage: why should the recording industry benefit from all these uses? (As you can see, I am not in favour of a certain provision passed in the Copyright Act in 1997.)

I understand that there is precedent for devices being restricted in some manner (the above CD-R levy, the restrictions placed on DAT, etc.), but I have always found the attitude of “you wouldn’t be using this device except for illegal purposes, so we won’t let you have it” attitude to be an unjustifiable one, especially when the potential “crime” is a minor, cerebral one as opposed to, for example, the crime that could be committed by a gun owner (ie. murder).

3) ...., in which respects should (provisions relating to technological measures) be subject to exceptions or other limitations?

My response:

Since my argument is that there should be no protections for technological measures, there are therefore no need for exceptions. However, since you are looking for specific examples outside of the general public, I will humour this question and provide the following people and organizations should never be restricted by technological measures:
• ablibraries;
• abtechnology research labs;
• abscientific journals;
• abanyone doing legal activities that requires use of technology that could conceivably be used for copyright infringement.

4) Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing technological measures?

My response:

Absolutely. A few that come to mind:

• abHow would privacy be maintained, when user-authentication systems become ubiquitous? If the technology behind these systems becomes illegal to try to hack, all content providers will quickly move to these systems because it guarantees them a revenue stream. We will have no choice but to be tracked as to our content preferences and usage, if we want any access to such content. This is disturbing enough for a single company to be tracking: what if this information is sold or stolen? Who is liable, and what consequences are there? Currently, the answer is either “Too bad, so sad,” or “Oops!”

• abHow would libraries function? The whole concept of public libraries is the opposite to the desires of the media corporations: that someone can purchase one copy of a work, and permit everyone to use the work for free. If libraries are not able to procure content that can be shared, they will have no new content at all.

• abWhat would happen when a device determined to be “infringing” by the definition of copyright law is overly broad? The most effective copyright infringement device available right now is the personal computer. Will this “device” be banned?

Don’t misunderstand me on one point: I am all in favour of content providers implementing “something” that would prevent illegal copying of copyrighted materials. It is just that any technology which restricts illegal copying invariably also restricts fair use rights: this is already going on today, and is bad enough. I suppose that if the public chooses to consume content that makes it difficult to exercise their rights over, that is their prerogative. What I am vehemently opposed to is the notion that I cannot create, possess, or receive something that will permit me to reclaim those rights. If someone is found to be using this device for purposes beyond fair use, then fine: use the tools available granted under the Copyright Act to punish this person or group.



Legal Protection of Rights Management Information

The text of the Consultation Paper is correct: rights management information and technological measures to prevent copying will be one and the same thing. It would be pointless for the media to create a method to authenticate the rights of a person to use a work and not prevent unauthorized users at the same time. But I will go along with the supposition that they are separate issues.

The departments suggest two options, which seem to be extremely similar proposals with the only difference being what information of copyright is deemed to be protected by legal means.

1) What information should be protected under the Copyright Act? ...(examples)

My response:

I agree that it is important to preserve the names of the original copyright owners and authors if it is possible, and that it be preserved in digital copies of copyrighted works.

2) .... , what limitations should there be on the protection of (terms and conditions (governing information) that is not legally valid in Canada)?

My response:

If the terns and conditions are not legally valid in Canada, there is no worries as to what they stipulate: they could not be enforced. If the protected copyright information is not relevant, it can be ignored by content consumers in Canada.

3) .... , how should provisions concerning rights management information take into account provisions regarding technological measures?

My response:

Any rights management information technology which is also a technological measure to prevent copying should not be legally protected by copyright law, as per my arguments from the previous section.

4) .... , does the fact that some technologies may be used both to set out rights management information and protect a work from infringement mean that duplicate or overlapping sanctions could result in some cases?

My response:

See above.

5) Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing rights management information?

My response:

Privacy is the most obvious. It is likely that any attempt to enforce rights management information will involve tracking of a users habits. See also this similar question from the previous section.




My Comments

In the second part of the document “A Framework for Copyright Reform”, under the heading “What is copyright”, the authors have made three points:
• abcopyright is granted so that rights holders can control their creations and can benefit from them;
• absome uses of copyrighted work are permitted without the rights holder’s consent; and
• abcopyright exists for only a limited time.

I believe that these conventions were implemented because knowledge, unlike physical assets, is not property.

Knowledge cannot, should not, be “possessed” by anyone, at any time. Unlike actual (physical) property, there is no actual loss of anything when knowledge is transferred from one person to another: the provider does not “lose” knowledge when the receiver gains. Copyright was created so to provide creators of knowledge with a fair means to benefit from their works, without actually “owning” the work: they only hold limited rights to its distribution and use, and only for a period of time. After this time period is up, the knowledge is intended to be released into the public domain. This system has worked satisfactorily for centuries now.

However, I have noticed increasingly that the intent of copyright appears to be under attack, with various treaties and laws being implemented here and elsewhere around the world which are eating away at users’ rights to fair use and to the expiration of copyright protection. This has been coming at the convergence of two events:
• abthe increase in size and influence of corporations whose primary business is creation, distribution, and control of content; and
• abthe emergence of technology available to a large section of the population which enables content creation and copying.

It is my belief that the corporate rights holders are using the “threat” of new technology to lobby for changes to copyright which benefit them at the expense of the general public and its historical right to use of the knowledge. And the unfortunate truth is that these changes in the copyright laws will never actually limit the genuinely illegal activities being committed by large-scale copyright violators. The rights holders know this: they simply desire to maintain (or increase) their economic benefit from the virtual “ownership” of knowledge, selling content to consumers when historically many uses of the content have been free.

I do not begrudge corporate rights holders for their intent: they answer to their shareholders who demand as profitable a venture as possible. They know that this is a golden opportunity to seize control of knowledge, turning it into “property” in the same manner as a physical item. Should these efforts be successful, it won’t be written as such in law texts, but in practice it will end up the same. I see a great risk of this scenario in the proposals for copyright reform. It is up to those who enact law to be responsible to the spirit of the intent of copyright, not to respond to the demands of industry which seeks to reclaim consumers’ rights to knowledge for profit.

My wish is that copyright reform is given a less draconian, more democratic treatment than our neighbours to the south have endured. The DMCA (Digital Millennium Copyright Act) (and its recently proposed successor, the SSSCA (Security Systems Standards and Certification Act)) are examples of exactly the kind of laws I am talking about. In protecting the rights of the content rights holders, the law aggressively removes actual and practical rights to use of content by consumers. I will be very disappointed if a similar law is passed here in Canada.