Paul Tatham

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Paul Tatham

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 Paul Tatham received on September 13, 2001 via e-mail

Subject: Consultation Paper on Digital Copyright Issues

Response to The Consultation Paper on Digital Copyright Issues

September 11, 2001

To: the Department of Canadian Heritage, Industry Canada and the Intellectual Property Policy Directorate:

As a concerned citizen, a consumer of technology and as an observer of the technology industries, I have read the Consultation Paper on Digital Copyright Issues as well as the Framework for Copyright Reform. There are points of such seriousness that I feel obliged to express my concerns.

While I understand that the government of Canada has obligations under international agreements into which it has entered, I believe that caution must be exercised so as to enact legislation that does not take the restrictive positions of the Digital Millenium Copyright Act (DMCA) as enacted in the United States.

Prevention of Circumvention

As has already been noted in the CPDCI, prevention of circumvention of copyright protection may extend beyond current copyright and must be considered carefully. In particular, the methods used by copyright holders such as full encryption may be ill-defined as copy protection. It is important to understand that encryption may be used effectively for prevention of access to content, even for those who have legally-obtained and authorized copies of copyrighted works. It is far less clear that encryption can be used to be prevent unauthorized reproduction or piracy of copyighted works. In some cases copies can be produced without decryption.

The difficulty is that those who have authorized copies may lack the means to access content. An example of this might be an individual who rents a DVD from a local video shop to play on his computer at home. If he has a Windows-based PC he can play his movie; but if he has a Linux-based PC he may not be able to access his content without circumvention software. Another buyer of DVD movies in North America cannot bring his own collection with him to Europe and access them there because the players are zone specific. Allowing legal means for rights holders to enforce this reduces the rights of users to access materials they have legally obtained.

Fair Use Provisions

There are other problems that have also been alluded to in the CPDCI. Fair use provisions for individuals, schools, libraries, museums and archives are put in jeapardy with DMCA style legislation. And we have already seen how scholarly activities and security research that is important to the broader community can be severely inhibited by overly restrictive laws. Even web links pointing to research become problematic; this surely violates constitutional provisions for freedom of speech.

There is clearly a problem with a law that leads to the arrest of a Russian programmer, who, acting legally in his own country, finds himself before the US courts without having committed any acts of piracy, unauthorized copying or illegal distribution of copyrighted materials. This action by US authorities has come under intense criticism along with the DMCA itself. It should be noted that Adobe, whose technology was circumvented by Mr. Skylurov, condemned his arrest. Many individuals and organizations have spoken and acted in his defense including the Electronic Frontier Foundation. Nevertheless, prosecutors seem bent on making an example of him. Many observers also question whose interests have been served by US legislators with respect to the DMCA.

Obligations and Liability of ISP's

A further issue exists with some of the proposals suggested relating to Internet Service Providers. It seems unfair to place liability on them for transmission of unauthorized material. Can we also make Canada Post liable for unauthorized material sent through the mail system?

Allowing rights holders to charge ISP's for presumed transmissions of copyrighted material also seems unworkable. Royalties paid on a per subscriber basis assumes that all subscribers acquire unauthorized works in equal amounts through the ISP channel. Of course this will never be the case; and those subscribers who do not acquire such works are penalized for acts they did not commit. A similar issue exists with the notion of charging royalties on the basis of gross profits of the ISP. In fact, such schemes use the presumption of guilt without verification.

Summary

We have seen that there have been several undesirable effects of the DMCA as enacted in the US. A Norwegian teenager was arrested and prosecuted for learning the encrytion algorithm (CSS) for DVD movies. Many web sites were threatened with legal action for, not publishing the the DeCSS code, but simply saying that information about it could be found on another web site. Scholars and researchers studying encryption and computer security have received similar threats. Content consumers will not have full access in traditional rights of fair use, and for ISP's and others, the presumption of innocence no longer holds.

There are many who believe that some of the proposals for digital media copyright protection favour the distribution companies at the expense of consumers. At the same time, content creators are at the mercy of those who control distribution and the new proposals will do little to remedy this. I sincerely hope that we in Canada, noted for our sense of reasoned fairness to all, will be able to find a better balance.

by Paul Tatham
(Address removed)

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