ARCHIVED — Andrew Hay

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 Andrew Hay received on September 14, 2001 via e-mail

Subject: Feedback for the Copyright reform process

Comments - Government of Canada Copyright Reform

c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street
5^th floor West
Ottawa, Ontario
K1A 0H5

September 9, 2001

Re: Copyright reform process

Dear Sir or Madam:

I am responding to your request for feedback on the reform of the Canadian Copyright reform process. I'll organize this letter into two sections:

guidelines for what I feel Copyright laws should accomplish; and,

three examples of the application of the law in the issue of fair use of products.

I. Guidelines of what Copyright laws should accomplish (theory)

I believe that the reforms of Canadian Copyright laws should seek to:

achieve appropriate balance of rights among all involved;

achieve appropriate implementation and/or enforcement of laws; and,

not compromise economic strengths generated by new technologies.

Balancing the rights

Appropriate rights should be given to:

the Copyright holder;

the purchaser of the product; and,

any company or individual that provides a means to participate in the illegal copying of the product (e.g. Internet Service Provider, copy-shop, photo-copying machine manufacturers).

Generally speaking, I've seen a disturbing trend toward increasing the rights of the Copyright holder at the expense of the rights of the purchaser. I disagree with this trend, and will discuss this in more detail in the application of laws in the area of fair use.

I believe that the DMCA has gone too far to granting rights to the Copyright holders, at the expense of person who actually buys the product. The Canadian Copyright Act should take note of how the DMCA has been applied in recent media and consider the fair application of laws to both corporations and consumers.

Implementation of the rights

In Canada, maintaining Copyright is encouraged by placing warnings at photo-copy or other duplicating machines, cautioning about the fair use of copying material. However, copying of digital material is treated differently; in the case of write-able CD's, a small levy is added to the price of each disc. This levy is given back to the music industry as compensation for the possibility that these CD's will be used to illegally copy music.

As someone who would use CD's only to back-up his computer, I object to paying this levy.

Furthermore if this logic is applied, it should also be applied to other media that potentially allowing copying Copyrighted material; this includes: copy paper, blank audio cassettes, hard drives, etc.. It is interesting to note that such levies were not put into place when other technology challenges--such as blank audio cassettes for copying music from LP record, radio, or CD; or video tapes which make recording of TV signals.

Trends of technology

The increased accessibility to high bandwidth and sharing ideas helps to build a multinational community where people can take the best aspects of everything online. Rather than poor enforcement with easily broken encryption water-marks, another approach would be two-step: (1) encourage public awareness of the situation, and allow the morals of society to determine the appropriate law, and (2) facilitate the ability for consumers to reward intellectual property directly; i.e. consumers giving money to the original artists, without paying middle-men (store owners and distribution companies).

As the Internet grows in popularity and bandwidth makes content more accessible, I believe that we should

encourage innovation;

reward the sharing of ideas; and,

encourage direct-to-market to reduce the price to consumers, thus increasing disposable income and allowing investment in truly value-added services and products.

II. Three applications of fair use of products (practice)

Based on the guidelines stated above, I've expanded on the theme that I feel has been ignored so far with other Copyright reforms; that is, the rights of the purchaser to have "fair use" of the product that he has paid for.

Fair use of CDs / The music industry

While I do not participate in the illegal exchange of music files--such as the trading of mp3 files traded on Napster and similar--I do agree with the public opinions expressed in that behavior; i.e. that the pricing of CDs is ridiculous. Consider: roughly $1 for raw materials, $3 for intellectual property (to the author of lyrics as well as performance royalties to the performer), and the remaining $16 of non-value added administration and mark-up to arrive at the cost of a $20 CD.

I understand consumers not wanting to pay a $20, for what feels like a $4 value. Therefore I understand the backlash against the music industry.

I believe that the solution to this is a reform of an out-of-date industry and not the current initiative to deliberately reduce the quality of a product by introducing limitations of its use (e.g. we're seeing music CD's shipped with limitations that either (1) prevents copying or (2) reduces quality with the introduction of loud popping sounds if converted to mp3 format. While these limitations may not be heard when played in a basic audio CD player, they are artificially imposed decreases in quality.) I disagree with these implementations because they impair my rightful and fair use of the product if I want to (1) create a backup copy to guard against scratching or (2) convert to mp3 format and use that in preference to the CD.

Therefore rather than continuing a perpetual "technology arms-race" between the industry and the pirates that only has the effect of hampering the legitimate and fair use of the products, I would rather see the industry realize that their market has changed over the years, and encourage them to change their business practices rather than relying on legislation that hampers the logical progression of technology. To refer to my initial thought, one solution that I would offer is the fair pricing of CD format, which would then reduce the incentive to pirates.

Fair use of DVDs / The movie industry

If I purchase a DVD, I feel that I should have the right to enjoy the content on any device that I want. This includes when I am visiting a friend over-seas and using his DVD player, or also if I want to watch the movie on my computer, under any operating system.

Currently there is region-specific encoding in place that restricts a DVD made in a particular region (e.g. North America) to only being playable on a machine also made in that region. In my opinion this is one deliberate decrease in quality of the data since it interferes with what I consider to be fair use.

For several years, DVD software players were written for Windows but not for Linux. By way of reverse engineering, Linux programmers were able to code a DVD player so that they too could watch the movie on their computers. Using the DMCA, the movie industry was able to take them to court. In my opinion, creating your own player--including programming a software DVD player--is fair use and should not be restricted by Copyright laws.

I feel that the product that I am purchasing is data which makes up a movie, and I should be able to access that data without restriction. I disagree with the idea that we are purchasing data which is bound to particular DVD players.

Fair use of software / The software industry

If I purchase software, I feel that I should have the right to do whatever I want with it. This includes using only portions of the product, or reverse-engineering it to determine how it works. For example, if I purchase new office productivity software, I may wish to reverse-engineer the data file format so that I can create a conversion tool to translate my old data files into the new data file format.

I believe that allowing this sort of reverse-engineering promotes innovation. I believe that artificially restricting this type of engineering by legislation stifles growth.

In closing

I have tried to present some of the goals that I feel that a reform of the Copyright Act should accomplish, and examples of the important issue of fair use. I commend the Canadian government for inviting comments and deliberating on this issue before updating the Copyright Act. I hope that this initiative on the government web site has successfully encouraged feedback from members of different communities in Canada, so that in the end you have a representative cross-section of community opinion to create appropriate laws. With the creation of new laws, citizens often fear that larger companies and special interest groups can afford lobbying which seems to make their opinion more strongly heard in the ears of the creators of laws. I hope that this exercise of using the Internet makes for a more representative set of feedback. Good luck.

Yours very truly,

Andrew Hay
(Address removed)

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