ARCHIVED — Hight Criteria Inc.(Gordon Bennett and Konstantin Lavid)

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 Hight Criteria Inc. received on September 14, 2001 via e-mail

Subject: Consultation Paper on Digital Copyright Issues Comments

Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street
5th Floor West
Ottawa, Ontario
K1A 0H5

September 14, 2001

Dear Sir / Madame,

The Government of Canada, through initiatives of both Industry Canada and the Department of Canadian Heritage, has launched a review of Canadian copyright legislation. Particular emphasis in this review will be paid to how advances in communication technology have impacted the existing legislation and how the legislation might be changed to ensure that the copyright act remains relevant.

High Criteria Inc. is a privately held Canadian corporation that has developed considerable technical expertise in the area of digital audio recording. Our background and experience provide a unique vantage point from which to review issues of digital copyright. We would therefore like to submit the following comments regarding possible amendments to the Copyright Act with respect to the issues described in the Consultation Paper on Digital Copyright Issues.

We believe that implementation of the amendments, as currently envisioned, would have significant negative consequences for the Canadian technology sector, Canadian consumers and ultimately Canadian digital rights holders.

We base these objections on the following points:

It is quite common that applications with completely legitimate purposes may also be used in illegal activities. The same may also be said of everyday objects and equipment found throughout the ordinary Canadian home. We believe that legislation should ban the use of technology for illegal purposes; it should not ban the creation and development of technologies with legal, valid and useful purposes. Updates to the legislation must insure that legitimate applications are not tarred with the same brush that is applied to applications whose purpose is to circumvent, bypass or negate security technologies, for the purpose of infringing on the rights of digital rights holders.

If applied to their limit, there is a high risk that the new provisions will restrict the growth of important technologies, currently in their infancy, due to the real or imagined threat of piracy. Two well-known examples of the past include the VCR and the CD recorder. These devices have both legitimate and illegitimate uses. It is very evident now that the benefits to rights holders and to consumers from these devices far overweight the negative impact of piracy. However, this was not evident when they were introduced. One can ask about the impact on the film industry and the electronics industry, if the VCR recorder had been banned, prior to its widespread adoption and acceptance.

Another significant problem relates to interoperability. It is well known how important and how difficult issues of interoperability can become when integrating technology from different vendors. One such example is the set of tools used to convert sound from one format to another. The development of such tools may be impeded or stopped completely, based on some of the proposed provisions. Restricting the development of conversion facilities would result in a greater proliferation of incompatible technologies and a greater degree of market confusion.

We can also imagine various negative implications for consumers. There would be many negative consequences, some un-thought of at this point, if the consumer's ability to make copies for personal use under the current "fair-use" doctrine is withdrawn. Many consumers would simply boycott any goods incorporating protection technology. Others would refrain from buying new high tech devices fearing new limitations

Suggestions:

1. It is questionable whether the time is right for updates to the copyright act. Currently, there are few examples of successful business models that rely on technological protection measures. It would be better to await the results of other such initiatives and be in a position to review these results, both positive and negative. One such initiative that will be highly instructive is the DMCA in the United States.

2. DMCA initiative is very broad and one-sided. Evidence continues to mount that the DMCA is unwieldy and may be unworkable, in practical terms.

3. We believe that legislation should only prohibit the act of circumvention, for infringing purposes, of technological protection measures. We feel that it is very important to specify, "for infringing purposes". The DMCA lacks this clarity and is open to numerous interpretations.

4. It is very important to specify the criteria that will define a technology that is to be considered a valid "Technological Measure" used to protect copyright materials. Without specific benchmarks for the Technological Measures, proprietary "protection" technology of no commercial significance may be used to prohibit other technological advances. We believe that one of these criteria must be that the technology be widely adopted with a significant installation base. Additionally, without proper identification, developers would have no way of knowing whether their applications were circumventing a valid "Technological Measure".

5. Devices, software and technologies having significant legitimate use should be allowed, provided that they do not isolate and target for circumvention, specific technological protection measures. Particularly all the generic copying/recording devices and software not utilising any special technology to defeat a particular technological protection measure(s) should be allowed.

6. No device, software or technology shall be prohibited on the basis that they circumvent a particular technological protection measure, if such a measure was introduced after the device, software or technology was first introduced.

7. Based on the existing DMCA practice, a very clear exception should be made if circumvention (including breaking of encryption) is done for the purpose of research. Lack of such an exception would discourage people from publishing their findings related to security holes (which are numerous in today's software) and over time, would substantially weaken computer security.

8. Protection of privacy is very important. Some technological protection measures result in personal information being transmitted to a content owner or being embedded into the downloadable content. A customer should have the right to legally investigate such information even if it's encrypted and might be a part of digital rights management information.

9. The fair use doctrine should be clearly defined. It might be reasonable to mandate that some activities be recognised as fair use. For example the right to make a backup copy and the right to review the transmitted material at a later time (time-shifting) should be allowed by all technological protection measures.

These are our comments and suggestions. They are based on our experiences with digital recording applications and the Internet in general. We would be happy to respond to questions on these issues.

Sincerely,

Gordon Bennett
and Konstantin Iavid
(address removed)