Information Technology Association of Canada (ITAC)
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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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.
Submission from the Information Technology Association of Canada received on September 21, 2001 via e-mail
Subject: ITAC comments on Consultation Paper on Digital Copyright IssuesPDF Version
Consultation Paper on Digital Copyright Issues
ITAC Comments - September 2001
Canada's competitive advantage in sustaining a knowledge-based economy will be based on our ability to develop advanced information products, thereby encouraging further creation and growth. For this to take place, creators of the products and services must receive fair compensation based on the utility and popularity of their efforts.
Government and industry must work together to assure creators and copyright owners of fair compensation for use of their works - over the internet as in other forms. The growth of the internet as a cultural, entertainment and information medium depends upon the development of systems that adequately protect and compensate content creators and intellectual property rights owners while ensuring that Canadians have reasonable, legal access to copyright works.
1. Legal Protection of Technological Measures
Clearly, rights holders will hesitate to make works available online if their rights cannot be protected - and consumers will, as a result, have fewer choices available to them. ITAC is therefore of the view that the Copyright Act should be amended to make it an infringing act to circumvent measures intended to limit reproduction, public performance, or communication to the public of a copyright work (where the rights owner has the legal right to limit).
However, ITAC in not convinced that the manufacture, importation or distribution of circumvention devices need be made an infringing act. Canadian law has rarely imposed total restrictions on classes of articles, and any restriction on an unknown class of devices, most of which have not yet been invented, risks stifling innovation and inhibiting research and development.
Any restriction on circumvention devices should be very carefully crafted to ensure that it does not include protections for devices that serve to expand the restrictions on the use of copyright material beyond that contemplated in the Copyright Act. Furthermore, equipment manufacturers should not be put in a position where they are compelled by copyright owners to design or alter products to recognize and respond to any or all protective measures.
In addition, such legislation should not constrain research and development in the fields of encryption and technological protection, even if devices and methods for overcoming this protection are developed in the course of such research. Manufacturing, importing, buying, or using circumvention devices for legitimate purposes such as during research and development, or testing to identify product weaknesses should not be prohibited. Without this safeguard it would be difficult to develop and improve protection in the future.
1.1 Given the limited information currently available regarding the impact of technological measures on control over and access to copyright protected material, what factors suggest legislative intervention at this time?
The most effective protection of digitally delivered material will rely on the use of technological protection measures and rights management information, backed by legal safeguards to protect such measures and information from unlawful circumvention. ITAC therefore supports amending the Copyright Act to provide rights holders with protection against the circumvention of technological measures and rights management information used by them to secure and identify their works.
1.2 Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors should be considered determinative in deciding whether circumvention and/or related activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?
ITAC believes that restrictions should, to the greatest extent possible, be limited to the protection of copyright. The WIPO treaties and Canada’s other international obligations do not require that protection be extended to technological measures that protect non-copyright works, or to uses that are permitted by copyright law. As a result, it would be appropriate that such restrictions be included in the Copyright Act. ITAC notes that there may be constitutional restrictions on the federal government implementing restrictions relating to technological measures intended to protect non-copyright material.
1.3 If the government were to adopt provisions relating to technological measures, in which respects should such provisions be subject to exceptions or other limitations?
As suggested above, the provisions should not apply where the rights owner does not have the legal right to limit reproduction, public performance, or communication to the public. Otherwise, technological protection measures could potentially be used to prevent all access to and dealing with copyright works without the permission of the copyright owner, even contrary to a permitted act provided under the Copyright Act. (Parties must also be prevented from claiming rights without justification and then adopting technological measures to restrict access.)
Generally, in order to maintain the balance between owners and users, any existing limitation or exception to a copyright in a work, such as the fair-dealing provisions, should also apply to the circumvention of technological measures, and to the alteration or removal of rights-management information.
1.4 Are there non-copyright issues, e.g., privacy, that need to be taken into account when addressing technological measures?
Some of the technologies employed to protect copyright may require end-users to identify themselves, even though this is not done in some forms of distribution today. In addition, it is possible that, in certain situations, both technological protection measures and rights-management systems might infringe an individual’s right to privacy by tracking their consumption patterns and recording online behaviour. In ITAC’s view, the collection of user data involving digital technologies should be no different than that done by sellers of other online goods or services - and should therefore be subject to the same privacy laws.
Canada recently enacted the Personal Information Protection and Electronic Documents Act (the PIPED Act), a technology-neutral law of general application that applies to the private sector's collection, use and disclosure of personal information in the course of commercial activities. Unless the Copyright Act is amended to override it, the PIPED Act should ensure that the privacy rights of individuals are applied consistently, and that a balance is maintained between personal privacy and the needs of rights holders to protect and manage their works.
2. Legal Protection of Rights Management Information
2.1 What information should be protected under the Copyright Act? Given that information may cease to be accurate over time, should information relating to, for example, the owner of copyright and to terms and conditions of use be protected?
ITAC favours Option A, as presented in the Consultation Paper. Under this option, the Copyright Act should define "rights management information" to be consistent with the WIPO Treaties. The terms used in the definition of "rights management information", e.g., name of the author, should be interpreted according to their meaning in the Copyright Act. The protection of such information should not be construed as confirming the legal validity in Canada of the information.
Any legislative provisions should be generic and broad enough to cover descriptions not yet in existence. If protection is granted and it becomes illegal to tamper with rights management information, this must extend to the information that creates the economic wealth – information relating to ownership, restrictions on use, licensees, etc.
2.2 Certain terms and conditions may not be legally valid in Canada if they are contrary to public policy. In light of this, what limitations should there be on the protection of such information? Is a provision required that specifies that the protection of such information does not imply its legal validity in Canada?
Current public-policy limitations in the Copyright Act should cover any limits to the protection granted copyright management information. The Copyright Board could be vested with the ability to adjudicate issues that may arise in the future.
2.3 Given the fact that some technologies serve a dual purpose, i.e., reflect rights-management information and protect a work against infringement, how should provisions concerning rights-management information take into account provisions regarding technological measures?
Tampering with rights information may be achieved by tampering with the technology used to protect it. Conceivably, it may also be achieved by alteration of the rights data in a low-tech environment before it is connected, input, linked, accessed by the technology. Therefore, ITAC’s view is that tampering must be made a distinct and separate offence or cause of action.
2.4 If the Act were amended to protect rights-management information, does the fact that some technologies may be used both to set out rights-management information and protect a work against infringement mean that duplicate or overlapping sanctions could result in some cases?
The sanctions may also be cumulative where damages occur due to both the circumvention of the technology and the tampering (alteration, deletion, or fraudulent creation) of rights information. ITAC suggests that having both provisions would provide the courts with greater flexibility.
2.5 Are there non-copyright issues, e.g., privacy, that need to be taken into account when addressing rights-management information?
Federal privacy legislation and upcoming provincial legislation does or will deal adequately with abuses of personal information privacy. Any copyright-management information system instituted to facilitate trade in copyright works would be subject to the same rules as every other online commercial enterprise -and would treat users of copyrighted works accordingly.
From the perspective of a rights owner’s privacy, if works are placed online for the purpose of trade and one of the contributing rights owners wishes to remain anonymous, there will likely be technological means available to protect such a
party. It is difficult to see how an end-user would be harmed by the desire of certain authors or rights owners to remain anonymous.
3. Liability of Network Intermediaries
ITAC agrees that an internet service provider (ISP) should not be held liable when a third party uses the ISP’s facilities to disseminate copyright-protected material, whether such dissemination constitutes a communication to the public (through a network transmission process) or a reproduction (e.g., caching or website hosting).
However, ITAC is of the view that the compulsory notice-and-takedown regime contemplated in the Consultation Paper should not be implemented. The consequences of taking down a customer’s site include harm to the customer’s business, the resulting ire of the customer, and possible exposure of the ISP to litigation. Because of the potentially serious consequences of a takedown, consideration should be given to having the notice come through a judicial, administrative, or regulatory authority after the complainant has provided sufficient information for its claim. This would more effectively protect the ISP and might reduce the potential of frivolous claims.
3.1 Do the current provisions of the Copyright Act already adequately address ISP concerns?
ITAC believes that the current provisions are not adequate in a number of ways.
First, the current provisions are ambiguous and attempts at clarification through legal proceedings (most notably the Tariff 22 proceedings) have been costly to the industry. The ambiguity exists in part due to the lack of clear definition of the term "ISP" since it is used to mean widely different things.
Second, there appears to be a lack of clear understanding of current technology and the ability to control, monitor, and ensure that content is removed or blocked or that particular (unauthorized) parties are denied access (e.g., based on national laws).
Third, the many rights granted to owners in the Copyright Act were largely designed with pre-internet industrial uses in mind. As a result, there is considerable uncertainty about their application to internet activities such as webcasting, caching and hosting. Clarification of these issues is critical to avoid unnecessary future litigation.
3.2 What other intermediary functions that have not been discussed in this section, but that are nonetheless being carried out by ISPs, ought to be considered when developing a policy regarding ISP liability?
In ITAC’s view, internet intermediaries should not be liable for any failure in the functionality of a copyright protection system (either technology or content) that operates on their systems. Intermediaries must respect privacy legislation and so should not have to divulge customer details unless provided with adequate proof of infringing or illegal content or conduct (preferably in the form of a court order). Intermediaries should not be required to seek out content that may be infringing.
3.3 To the extent that a notice and takedown system is being contemplated, how would such a system affect the framework in Canada for the collective management of copyright? What alternative proposals should be considered? Under what conditions would a compulsory licensing system be appropriate?
In ITAC’s view, a requirement for ISP registration is unnecessary. To the extent that a (notice-) notice-and-takedown system would exempt ISPs from liability so long as they complied with the notices, there would be no need for any additional licensing regime since no additional rights would be created.
Copyright owners generally need to address the issue of appropriate forms of notice for instances where infringement occurs. This notice should not be in a form that requires internet intermediaries to assess its validity, or to judge the notice against competing claims. Instead, ITAC supports the adoption of a regime for limited ISP liability in Canada, whereby an ISP would not be liable for copyright infringement for content it hosted or cached on its own servers unless it failed to take appropriate action consistent with legislative requirements.
ITAC’s preferred alternative to a notice-and-takedown system is a notice-notice-and-takedown regime, which would include three steps: notice to service provider; notice to subscriber; and takedown by ISP.
Notice to service provider - A rights holder or interested party elects to forward a "proper" notice to the ISP. An "interested party" could be a person or organization that has a connection to the material, e.g., an agent of the copyright holder or a copyright collective that represents the copyright holder. Consistent with fair information practices contained in privacy legislation, under no circumstances should a service provider be required at this stage to divulge subscriber details to the complaining party.
Notice to subscriber - Upon receiving a proper notice, the ISP forwards it to its subscriber, outlining details of the complaint, including the contact details of the complainant. However, an ISP should not be obliged to monitor whether voluntary takedown takes place. Furthermore, an ISP should not be obliged to screen or actively monitor content provided by, and stored at the request of, a recipient of its service, nor be required to seek facts or circumstances indicating infringing activity
Takedown by ISP - Upon being presented with a court order, and only then, would an ISP remove the infringing content, thereby eliminating the need to introduce awkward and cumbersome "putback" procedures.
3.5 To the extent that issues surrounding the scope and application of the reproduction right are being examined in relation to Internet-based communications, are there reasons why this examination should be restricted to the question of ISP liability?
There is little technical analysis of what constitutes "reproduction in a material form" in the online environment. For instance, it is unclear whether routers and other intermediary equipment operating as part of the internet create such reproductions in the course of their normal operations. This should be clarified. If it is determined that the ephemeral-copies analogy from the broadcast context should be extended to automated forwarding, encoding and caching functions, then there would have to be a collective collection system put into place to minimize the transaction costs involved with such a system.
ITAC does not believe, however, that it would be appropriate at this time to extend liability to such internet activities. There may also be concerns emerging about liability for remote storage of content where there is no public access (the technical equivalent of holding content in escrow), or about private copying or fair dealing exemptions, when occurring in a website context rather than through other media.
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