Thomas J. Kelly
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Copyright Refor Process
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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Submission from Thomas J. Kelly received on September 11, 2001 via e-mail
Subject: Comments on CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES (HTML format)
To: Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
235 Queen Street
5th Floor West
Ottawa, Ontario K1A 0H5 Canada
fax: (613) 941-8151
Date: 11 September 2001
Re: Comments on CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES
I am commenting in particular on section 4.2 "Legal Protection of Technological Measures". I urge you not to adopt restrictions on circumvention devices such as appear in the U.S. DMCA, and other legislative measures. I believe that adopting these provisions would infringe on the rights of Canadians, would chill legitimate scientific research and would ultimately be unworkable.
As someone who develops software for a living, my livelihood depends in some measure on being able to control copies of my work. I am therefore aware of the issues surrounding infringment, and understand the desire of a copyright holder to control copying.
Recent events in the United States regarding DMCA-based threats to legitimate security research should give Canadian policy makers pause. One effect of these prohibitions would make it illegal to study the effectiveness of such provisions. This can harm copyright holders who might trust in an anti-circumvention technique in the mistaken belief that it was effective. If research had been permitted, the weaknesses would have at least been known, and possibly corrected.
Such provisions would, in my view, infringe on basic rights of Canadians such as freedom of expression, as well as interfering with rights granted to them under the copyright act, or rights they may have paid for. Devices and software that can be used for circumvention often have legitimate uses. Circumvention to exercise a legal right should not be prohibited, since it puts control over exercising that right in the hands of the copyright holder, effectively removing the right. The discussion paper actually points out such problems. It is unreasonable to ban something useful and lawful simply because it might be used in an unlawful way.
The notion that the copyright holder should be under a "positive obligation to provide access to a person whose use falls within an exception to or limitation on copyright set out in the Act? " is, I think, unworkable in practice. The copyright holders that are most interested in this kind of protection are large media corporations - an individual citizen would likely find it a daunting and expensive operation to obtain his or her rights under the act if the prohibition on anti-circumvention measures is adopted, especially since many of these corporations are not based in Canada.
It is already unlawful to make unauthorised copies of copyrighted works. Circumventing a technological protection measure to make an unauthorised copy doesn't make it more wrong. Commercial-scale infringement is unlikely to be deterred by such a prohibition. Circumventing a technological protection measure to exercise legitimate rights shouldn't make the exercise of those legitimate rights wrong. It is the infringing act that should be addressed, not the circumvention. Attempting to prohibit circumvention devices will cast too wide a net, chilling the exercise of legitimate rights on the part of the public and tipping the balance too far in the direction of the copyright holder.
Although Canada is right to encourage the development of digitally encoded works, copyright holders' rights should not come at the expense of others' rights. If a copyright holder believes that the risk of digital publication of a particular work outweighs the potential benefit, they are free to refrain from such publication and to use existing means of expression.
I urge you not to propose prohibitions on circumvention measures.
Thomas J. Kelly
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