ARCHIVED — Mike Warren

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 Mike Warren received on September 14, 2001 via e-mail

Subject: re: Call For Comments regarding Copyright Act revisions

Re: Call For Comments regarding Copyright Act revisions.

Industry Canada, Heritage Canada and the Government of Canada,

I write responding to consultation papers published [1] by Industry Canada. These papers discuss possible revisions to the Canadian Copyright Act.

COPYRIGHT IS A NEED?

The June 22, 2001 paper makes a number of unsupported assertions. The first of these is the claim that, ``[c]ultural and other industries, such as the software industry, consider copyright to be a key factor in generating the return needed to stimulate the creation and marketing of a wide range of new content.''

This is most certainly not universially true, as a number of players in the software industry specifically deny most of their copyright privileges by using the GNU General Public License (GPL) [2] .

While it is almost certainly true that many corporations and people in the software industry would very much like as many copyright privileges as they can get, it is certainly not clear that this industry (indeed, any industry) needs copyright privileges in order to exist and thrive.

The paper makes a further and more grievous error when stating, ``... the analysis reflected in this paper has proceeded on the basis that the Copyright Act has already developed into a flexible instrument that is capable of responding to many of the challenges of the digitally networked environment.'' This is a poor presumption. As is pointed out later in this letter (and be previous letters by myself), Industry Canada has failed to provide any evidence that the Copyright Act is a good bargain between the Canadian public and Canadian and foreign content producers. If it's not a good bargain now, it follows it wont be a good bargain in a future, more digital, world.

Industry Canada offers no research indicating why they feel content producing industries would collapse (or even suffer) if there were no copyright privileges conferred in Canada. Indeed, in the early 1970's the Government's own task force on copyright and patents expressed doubt that copyright did anything to further Canadian expressive industries. This was due mostly to the fact that, of all Canadian copyrights, most were not held by Canadians.

If Industry Canada could offer any of the data they used to arrive at the conclusion that copyright is necessary to support the software and other ``cultural'' industries this might be more convincing. Merely stating the desires of those who stand to gain from stronger copyright privilege is entirely unconvincing.

GENERAL IGNORANCE

It is not clear that Industry Canada is aware of the history of copyright. Copyright is not intended to generate revenue nor to recognize some ``right'' of producers of art.

Copyright is a bargain between the public and producers of copyrightable material: the public gives up their right to make copies for a specified period of time in the hopes that there will eventually be more artistic works to draw from.

While Industry Canada is busy asking how the Copyright Act should be strengthened, they neglect the more important issue of whether it is already too strong. Instead of looking for new ways to make copyright law tougher and more convoluted, Industry Canada should be continually presenting data showing that the public is getting a good deal out of the bargain which we call copyright.

No such data is offered, and no questions asking about the diminishing of copyright's reach are offered.

PROBLEMATIC PHRASES

Industry Canada reveals a strong bias towards the strengthening of copyright -- and towards copyright holders in general --- through the use of phrases such as:

``copyright protection'': This implies that the existence of copyright is a necessary and desirable thing; copyright privileges are not necessarily the best way (and certainly not the only way) to achieve the goals of recognition for authors and bountiful art for the public.

``exposes the work to infringements'': this implies, for example, that people should be prevented from sharing a work with their friends since sharing a digital work implies making a copy of it (for example via email). There is nothing inherently wrong with copying works, as this phrase wrongly implies. The text also refers to activities typically considered ``fair use'' (i.e. sharing) even under current copyright systems as a ``problem'' to be solved.

WHAT DOES THE COPYRIGHT ACT DO?

Industry Canada claims, ``The Copyright Act serves to recognize, promote and protect intellectual expression, as well as encourage and enable access to and dissemination of such expression.''

It does no such thing. It merely gives exclusive copying privileges to certain people (or legal people, in the case of corporations) by first taking away rights from the citizens of Canada (namely, their rights to copy and share). The hope, of course, is that this encourages more artistic expression by Canadians and the eventual emergence of this expression into the public domain. Again, Industry Canada offers no evidence that this happens.

ISSUES

Industry Canada identifies a number of issues to be decided. Among these are:

``Whether or not legislative measures are needed to deter the circumvention of technological measures that are used by rights holders to protect their rights;''

On the contrary, there should be legislative measures enacted to ensure that any encrypted digital content covered by copyright will be unencrypted at such time as the copyright expires, to ensure that the public gets their half of the copyright bargain: public domain content.

Consider the case if such encryption technology as now exists were available in Shakespeare's time. Pretend further that whichever person or corporation owned the decryption keys to Shakespeare's plays died or went bankrupt before revealing the keys. We might still be unable to enjoy any of his work.

The same could easily be true for modern work. Indeed, if we look to the US for counter-examples of how to deal with copyright issues, we can see that Congress' two retroactive extensions of copyright terms mean that almost no US content has entered the public domain in the last century. Certainly this represents a bad deal for the public.

``Whether or not legislative measures are needed to deter tampering with rights management information;''

On the contrary, there may be considerable privacy concerns depending on the scheme used for ``rights'' management. (``Rights'' is not the correct term here, since copyright is a privilege.) It may be necessary to implement legislation protecting the privacy of the public, although the Freedom of Information and Protection of Privacy Act may be sufficient.

There are more important concerns, however: currently, one is legally allowed to make private copies for archival or backup purposes; one may re-sell content (such as a book or videotape) to others; one may loan their book or videotape to their friend. Legislation may be required to preserve these abilities for the public. Copyright should not cover content which people are not allowed to use in such manners.

``Whether or not legislative measures are needed to address the liability of network intermediaries in relation to copyright protected materials over digital networks.''

People who run networks solely for the sake of communication should not be responsible for how people use them. Phone companies are not culpable if I plan a bank robbery via telephone. Similarly, the post office is not liable if I perform fraud by sending letters to people. Such matters are between the parties involved.

For example, suppose I contract to an ISP to provide me with Web space. That ISP should not be responsible for determining whether I am legally entitled to publish whatever it is I am publishing; if a court order is obtained instructing the ISP to remove my content, that is the time for action.

Although the text touches on the anti-circumvention provisions of the DMCA in the US, it fails to mention the most prominent cases where these provision were used. Roger Felton, a professor, was effectively prevented from presenting a paper on the robustness of a particular encryption technique due to threats of litigation from the recording industry (RIAA) [3] ; 2600 Magazine has been locked in litigation for almost two years for publishing links to information about the Content Scrambling System (CSS) used to encrypt DVD movies [4] ; Dimtry Skylarov, a Russian citizen, was arrested and imprisoned for presenting an academic paper on particular encryption techniques for electronic books [5] .

Clearly, these anti-circumvention clauses have had a chilling effect on the dissemination of academic information in the US. Many groups are calling for boycotts of US academic conferences; some professors are worried about arrest or litigation and are not participating. These effects are exactly contrary to the stated goals of the Canadian copyright system. Adopting anti-circumvention legislation in any way similar to the DMCA will presumably have a similar effect on Canadian academic and professional proceedings.

Industry Canada misses the issue of whether or not any changes (or even the current Act) will be used to quell unpopular speech (whether counter to corporate, government or individual interests). The examples outlined above -- especially the DeCSS DVD case brought against 2600 Magazine -- are of special concern; they are examples of American copyright law being used to quell the unpopular free speech of academics and private citizens who are acting contrary to (in the above cases) corporate interests. Any Copyright Act changes must be very carefully scrutinized to ensure that all speech is still free, even (especially?) unpopular thoughts.

THE INTERNET

Industry Canada correctly identifies the Internet as a jurisdiction-spanning instant communications network. They do not, however, reach the obvious conclusion that regulating what is communicated thereon is tantamount to regulating what one person may say to another on the street or over the phone. While one can think of a few cases where speech may be considered harmful (death threats, for example), it is silly to consider separate legislation for ``digital'' data; we already have ample civil precedent to deal with any such harmful communication.

Besides, as Industry Canada points out, one can move information nearly anywhere on the Internet; does it make sense to drive people and business out of Canada merely because they have unpopular ideas?

It may seem premature to say that ``unpopular ideas'' will be prosecuted under new copyright legislation, but that is precisely what has happened in the US since the adoption of the DMCA, despite reassurances prior to the law being passed that such would not happen.

OBJECTIVES

Industry Canada identifies some objectives of the copyright framework. ``The framework rules must promote Canadian values.'' Do Canadians value invasive, Draconian and convoluted rules which change depending on the type of content being viewed? Not in my experience, but that is the framework we currently have. Industry Canada seems to be suggesting that the framework might be made more Draconian (preventing people from making or using ``circumvention devices'') and more convoluted (more exceptions and differences between types of content).

In a digital world, all content is exactly the same: a series of bits. Differentiating music from literature from movies from encrypted text from simple numbers is essentially impossible; making the rules different for different interpretations of bit-streams is problematic at best.

Outlawing ``circumvention devices'' is ludicrous: the goal of the copyright system is to prodivde the Canadian public (eventually) with more public-domain works. If works can be enjoy copyright privilege even while they're encrypted, then these works might never become public domain for the simple reason that the owner of the copyright (and presumably also the owner of the decryption keys) may never release the keys.

An especially puzzling goal is, ``[t]he proposals should promote a vibrant and competitive electronic commerce in Canada.'' There is no reason why the goals of a copyright system should concern themselves with the well-being of any part of the economy, and especially not one as nebulous and undefined as ``electronic commerce''.

CONCLUSION

Industry Canada has not demonstrated that the current copyright system is working towards any sort of desirable goal. Until this is established, it is folly to embark on a course making the Copyright Act stronger. Indeed, this appears to be in direct opposition to a course encouraging free thinking, discussion and development of art via global communications media such as the Internet.

Furthermore, Industry Canada points out that the Internet is a reasonably young phenomenon; when the producers and controllers of copyrightable material don't yet have a consistent idea of how to distribute and produce content on-line, it seems especially premature to consider legislation. It is also disquieting to note that the papers at Industry Canada's Web site do not even so much as mention some of the alternatives to copyright, nor any of the distribution and renumeration schemes currently deployed on the Internet.

With such a superficial reading of the current content-production landscape, I am especially skeptical that solid policy can be developed.

I eagerly await Industry Canada's data on the effectiveness of the current copyright system; this will allow one to make better conclusions concerning the future course of the Copyright Act.

I strongly oppose any anti-circumvention measures.

I strongly oppose treating digital content differently from any other content, and especially oppose treating different types of content differently; if one has a strong copyright policy, it shouldn't matter what type of content one is copyrighting.

I support weakening, not strengthening, the terms and conditions of the current copyright bargain in Canada.

Sincerely,

Mike Warren
(address removed)

Footnotes:

[1] Found on the Internet at http://strategis.ic.gc.ca/SSG/rp01100e.html

[2] This software license can be read at http://www.gnu.org

[3] The actual letter can be read at http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010409_riaa_sdmi_letter.html

[4] More information about the case can be obtained from http://www.2600.com/dvd/docs/

[5] More information about this case can be obtained at http://www.eff.org/IP/DRM/DMCA/US_v_Sklyarov/