ARCHIVED — Gordon Haverland
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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 Gordon Haverland received on September 14, 2001 via e-mail
Subject: Copyright Comment
To: Industry Canada
and
Department of Canadian Heritage
copyright-droitdauteur@ic.gc.ca
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Introduction
I think that if you are going to change copyright legislation; which is but one instance of intellectual property, you need to reconcile all of the intellectual laws. For each one has problems; something which is easily seen if you observe writings of those who actually would benefit the most, the creators.
Intellectual property laws were enacted originally to protect people who "created" intellectual property. However, things have evolved to the point where intellectual property is very much involved in marketing. And the marketing of ideas and properties in a monopoly environment is a very much different thing than marketing in an open environment. A point which has very much warped the existing intellectual property universe worldwide. Can Canada hope to start correcting the imbalance?
The Current State of Intellectual Property in Canada
I am a little concerned that Canada's hands are slightly tied up in this, or that this consultation may not actually have much weight. It seems that there pressure is being applied from multiple directions for Canada to adopt a DMCA style copyright law. I guess we have a need to start arresting subversives who investigate encryption too! The latest news I have seen on the 'Canadian version of a DMCA' front comes from the Free Trade Area of the Americas negotiations.
To the best of my knowledge, the world operates with 3 kinds of intellectual property: copyright, patent and trade mark. We (Canada) have this fourth category of industrial design. Although I agree with the principles behind this industrial design protection, I do not believe it has any place in a global economy where most of our trading partners do not abide by it.
I could ask "Where do you want to go today with trademarks?", or some similar contrived text and run afoul of trademark legislation because various governments have allowed companies to trademark words and phrases in common usage. Another trademark recently seen in the OpenSource world is the use of the word "Illustrator" for a program used for working with graphics. I can see a case for trademarks where a companies use of a word or phrase predates its use in the language, but in the instances of either Microsoft or Adobe pointed out above, these companies have successfully usurped common usage as a trademark. This is absurd. It is well accepted that a company must protect its trademark from being absorbed into common usage, cases in point are "xerox" and "aspirin". One successful and one not successful.
You initiated this dialogue, by asking for comments on proposed changes to the Copyright legislation in Canada. This suggests that the powers that be think the current legislation is not working as intended. Above, I have pointed out two other aspects of intellectual property that need review in Canada. It should not surprise you that I am going to suggest that you review ALL forms of intellectual property in Canada.
In Canada, and throughout the world, we have two groups who are interested in intellectual property rights: creators and marketers. I suspect that most of the impetus for seeking changes to the intellectual property laws (in this instance, copyright) comes from the marketing segment of society, and not the creators. Reaching a satisfactory solution to a problem where one party (the marketers) is inherently greedy is difficult at the best of times. This marketing segment has an interest in producing the best return on investment for their employers and/or shareholders that they can, not in producing legislation which is best for the creators of the works (in this instance, I mean ALL intellectual property, not just copyright). I believe the correct solution is to go back to first principles, and examine what intellectual property laws were meant to protect, and why these laws were enacted.
What is Copyright?
Copyright was initially set up to protect the TREMENDOUS cost involved in publishing a work in an environment where any single, well educated, person was capable of understanding most of society's knowledge. Today, we live in an environment where nobody is capable of understanding even a minor fraction of society's knowledge, and the cost of publishing one's work is TRIVIAL! Furthermore, the overwhelming beneficiary of today's copyright protection is not the creator, but rather some commercial enterprise who's only "real contribution" is marketing. The reason for copyright has almost completely disappeared, as has its benefit. Another compnent that has changed, is that various kinds of copyrightable works have "half-lives" which are quite short. (I use the term "half-life" since information is always useful, but its "worth" does tend to decrease with time. This makes it somewhat analogous to radioactivity.)
As we all know, the original publication of works was done entirely by hand. To produce a copy of a work, involved a huge cost. Even with early mechanization, authors typically did not own the means of reproducing their works. The duplication engines were extremely expensive, and hence publication houses came into being. I suppose in a parallel universe it might have been possible for authors to create a co-operative to set up a duplicating shop for the purposes of more widely disbursing their works. That didn't happen, instead we got the formation of publication houses. Today, I can sit down with a used personal computer running some form of Linux (or one of the BSD UNIX distributions) and generate high quality postscript, which can be printed at a neighborhood copy shop for pennies a page. The computer may easily have been free, and the software may be obtained for free. The only "cost" is my time. While this argument is slanted towards text (books, magazine articles, and so forth), it may be extended just as easily towards graphical images (art), music, ...
In the example of text describing technology (predominantly books and magazine articles), the information contained may have a very short half life. Often far less than 20 years. Many areas of technology see information go from cutting edge to novice within 5 years. The duration of intellectual protection should reflect this. One area which interacts with the half life of information, is that of the process of enforcing one's right to a particular work. While the half-life of many types of information has shrunk drastically, the time it takes to reach a verdict through litigation has not! It is not inconceivable for an entity with 'deep pockets' to copy someone's work, knowing that by the time any possible litigation has ended the information has lost nearly all of its value.
The marketing engines which litter the landscape of copyright do have a vested interest in seeing certain changes in copyright legislation. After all, every one has grown up in this environment and has become quite good at producing a good return on investment for their shareholders. And if we happen to change legislation to give them a good chance at even better return on investment, things are even better. Being the nimble enterprises that they are; if changes in legislation make it more difficult for them to return a profit, they shall have to change their methods of doing business to avoid bankruptcy. Do not confuse the rights of their shareholders with the rights of the creators of the works. Even if only 50% of the benefit of copyright goes to the marketing engine, who are we protecting?
Another thing which is starting to appear "in the market", is that the size of the market sometimes is very large: that someone may create a copyrightable work and pursue its sale in some intended market; while a "pirate" may pursue the sale of copies in a related market, with little or no effect on the original creators sales. An argument may be made that since the "pirating" had no effect on the creators efforts, that a case of "no harm - no foul" is present. I don't know if this is the correct point of view to take, but this example shall become more prevalent as the size of the total market continues to increase.
While I think that copyright is an important intellectual property, I now believe that it has become a very complex issue. The lifetime of the work depends on the kind of work, and the size of the market. I do not believe that copyright should be worded to have any benefit to the various marketing engines "out there" that seek to make a profit by purchasing copyrights or by obtaining rights to a copyrightable work. No matter what rights are obtained for the creator, these commercial interests shall be able to make a profit in some way. I do not agree with the idea that a copyright can be sold in whole or in part to a non-creator, or that it can be owned by a non-human (i.e.: that companies can own copyrights). A company is a virtual entity, it is not capable of creating a copyrightable work. At some point, computers and artificial intelligence shall seek to create a copyrightable work. Or rather, some human or company which represents a "computer intelligence" shall seek to obtain a copyright for a work not created by a human. What happens in this instance is a question I leave to you to ponder. I do not think it is that far away.
Copy Prevention Technologies
Another aspect of this field, is the idea that we need to enact legislation to prevent the error free duplication of digital works. If I buy a book, song, image, or any other work protected under copyright legislation; I deserve the right to enjoy this work anywhere I happen to be. I also deserve the right to make copies of this work for the purposes of backup. legitimate reasons exist to allow for the error free duplication of works!
Currently, I have 6 computers in my single person household. If I have a copyrightable work on my main server, does this mean I cannot enjoy this work on a laptop if I leave my house?
As mentioned above, I deserve the right to make a copy of any copyrightable work, in anticipation of the event that something happens where by I lose my "active" copy. Another situation that I am involved with, revolves around information and software formats. I do not run Microsoft products if I may avoid it, most of my work is done under Linux. If a copyrightable work is only commercially available with Microsoft "support", I may find myself "breaking" an encryption format just to allow my own use of the work. Much the same as if I purchased a book written in German and had it translated into English for my own use.
Many people in the computing community believe that no encryption technique is perfect: what is impractical to break today, may be trivially broken in the (near) future. With the Skylaroff arrest, we have the ridiculous example that one of the encryption techniques used is a trivial "rotation" of the alphabet by 13 characters. Another instance involved a barcode reader that employed an encryption involving the XOR of data with a constant. There have been cases where people have hoped to protect things with strong encryption, to later find their method had flaws vulnerable to attack. At one point, RC-2/40 encryption was considered a reasonable level of encryption for web based data. These days, it is not proof against any sort of intelligent attack. I had a hard time convincing the Alberta Government that employee pay information deserved more protection than RC-2/40 provided to that information. (Other people may have also been arguing to disallow RC-2/40 access to pay information at the same time). Don't disallow cryptographic attacks on encoded information! If the information is important and has a long lifetime; the interested party should use the best encryption technology that is available, knowing that the information is not safe from attack forever. If the information is near useless, let them use useless encryption.
Patents
Patents are another area of intellectual property which are also in need of being re-examined to see if they are anywhere near close to fulfilling their original intentions. I do not believe that they are. Patents have also picked up a rather, I think unsavory, property; in that the general public has been led to believe that the granting of a patent somehow verifies usefulness, fitness and/or value.
I believe the original purpose of patents was to provide an incentive to creators to disclose revolutionary advances in technology to society in exchange for temporary, exclusive rights to control its usage. An important concept underlying this statement is that the application for patent protection must be "reduced to practice". Today we see far too many patents granted for evolutionary advances. We also see patents being granted for ideas which had been in use in other areas (for example, business process ideas now showing up in various software issues). We are also seeing patents issued for compositions of matter: alloying and genetics predominantly.
The original intent of patents has been sidetracked in the interests of marketing and corporate profits, just as with copyrights. If we correct this, I believe we shall go a long ways towards correcting how patents serve to protect intellectual property.
Lastly, the ownership of a patent is effectively just a right to sue someone if the creator/owner discovers that they are using the technology without a license. These days, if the infringer is someone with "deep pockets", it may not be possible to effectively seek remedies. Consequently, many patentable ideas are never disclosed.
Marketing
First, I think it should be made illegal to mention whether a product or process is patented, in any form of marketing or advertising. This shall go a long ways towards correcting this idea that has been fostered in the general public that patenting somehow confers worth, or applicability for service.
Evolution versus Revolution
If patents could be pursued only for revolutionary advances in technology, I think the first effect would be that the volume of applications seen by the patent office would decrease drastically. This in itself may be enough to allow the patent office to operate closer to its mandate. Instead it has far too much work to allow it the luxury of devoting as much time as is necessary to properly assess a patent application.
Patent Ownership
As with copyright, I think that patents should be only owned by individuals; by the creator(s). Today, we have companies with no research and/or development function, whose incomes are largely (or even solely) derived from the ownership of patents. This discourages creators from publising their inventions.
One consequence of allowing only creators to "own" patents would be an incentive to employers (or "investors") to arrange conditions conducive to producing patentable ideas.
Patent Lifetime
Patents, just as with copyrights; have useful lifetimes (or half-lives) that are determined by what area of the economy and/or society is involved. For example, in electronics it is unlikely that a new idea shall be useful anywhere near as long the current lifetime of a patent.
Cross Market Patents
If a process of some kind develops in one area, whether patented or not, somehow becomes useful in another area; this should NOT be a reason to grant a patent. It is by definition an evolutionary advance. The biggest example of this instance of patent system abuse is the migration of traditional business processes into "e-commerce".
Compositions of Matter
Nature, through a long period of juggling various kinds of atoms and molecules in a variety of environments has managed to create such things as complex as DNA and life. Through an inherently random set of processes. How then may someone patent a lifeform? Or an alloy? These are just new cases of a process already "owned" by nature.
It may be that some composition of matter was designed in an unusual way, perhaps even a revolutionary way. However, I think the test that should be applied is that if that composition of matter could be obtained by a purely random, or mechanical, process involving no intellegent direction; it NOT be eligible for patent protection! In the field of materials design, the development of thermomechanical treatments to alter or improve certain properties should also be subject to this type of test.
Closing Remarks
All intellectual property law has had its emphasis shifted towards the benefit of marketing. I am not advocating that marketers not be allowed to participate in the profits which intellectual property can bring. Rather, the presence or absence of marketing, venture capital, and so on; not have any influence at all on the goals and mechanisms surrounding the development and protection of intellectual property. If there is money to be made, they will find a way regardless of whether intellectual property laws aid them or not.
Gordon Haverland, B.Sc., M.Eng., P.Eng.
(address removed)
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