Eric R. Smith

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Eric R. Smith



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Submission from Eric R. Smith received on September 14, 2001 via e-mail

Subject: Consultation Paper on Digital Copyright Issues

Comments on the Consultation Paper on Digital Copyright Issues

Eric R. Smith, Ph.D.

Sept. 14, 2001


Thank you for the opportunity to respond to the Consultation Paper on Digital Copyright Issues. As a copyright holder (computer programs and academic papers) and a user of copyrighted materials (often in the course of research) who has worked in both academia and in industry, I appreciate the need for striking a balance between the needs of authors, distributors, and users. It is heartening to see that the government is proceeding carefully and seeking input from all sides of the issue.

I would like first of all to wholeheartedly endorse the consultation paper when it says: may be that amendments made to the Act at this time could have the inadvertent effect of working against a Canadian presence if technologies develop along particular or unpredictable pathways. Despite the radical novelty of the Internet, 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.

I agree very much that Canada's current Copyright Act represents a reasonable and fair balance, and that while it may need some ``fine tuning'' to make it operate more effectively in the digital age, wholesale renovation is premature, and probably counterproductive.

Legal Protection of Technological Measures

It is certainly true, as the consultation paper notes, that technological measures are important set of tools available to copyright owners for preventing unauthorized uses of their copyrighted materials and for securing their continued ability to negotiate the terms and conditions under which such materials may be further disseminated.

It is also true that advances in technology will continue to enhance the effectiveness of such measures. In fact, there is a danger that effective technological control over the use of copyrighted works may in fact remove some rights (such as ``fair use'' rights) from users, may make it difficult for researchers and academics to make use of the works, and may ultimately remove any possibility of the works in question entering the public domain. Encryption technology thus tips the balance of power towards copyright owners and away from users.

Adding legal protection to the technological protection effectively changes ``copy'' right into ``access'' right, and thus radically changes the legal landscape. Such a far reaching change would likely have unforseen consequences. Indeed, it might actually be detrimental not only to users but to other stakeholders, who often rely upon access to copyrighted works, both directly (in the creation of derivative works or creation of performances) and indirectly (for example in the use by artists and perfomers of computer software).

There is also a grave danger that laws which seek to ban circumvention of technological controls over copyrighted content may also act to stifle research in encryption and related technologies. Indeed, a chilling effect on research has already been seen in the United States in the wake of the Digital Millenium Copyright Act (DMCA).

For this reason, I feel very strongly that a wholesale ban on the manufacture of devices which may circumvent technological access controls is inappropriate. Rather, the emphasis should be on preventing copyright infringement itself. Legislation must clearly protect the right to conduct research into encryption and related technologies. Only with such research can better technology be developed; so ultimately such freedom to inquire and to expand the frontiers of knowledge will be beneficial to all stakeholders, both copyright owners and users. If our legislative framework stifles innovation, Canada faces a real risk of falling behind other countries in key areas of science and technology.

I also believe that some trade-off must be made between technological and legislative protection of copyrighted works. For example, currently all works enter the public domain after their term of copyright expires. But if copying of the work is prevented by technological measures, the expiration of copyright term becomes effectively meaningless - the work will not be accessible to artists and others who wish to use it to create new works.


Any legislation concerning technological measures, and restricting devices which allow circumvention of such measures, should be drafted with the following concerns in mind:

  1. The focus should be upon copyright infringement. Not all access to copyrighted works is infringement.

  2. A ban on devices which permit access to material is premature, and involves a far reaching change in the nature of copyright. A ban on devices whose primary purpose is to infringe copyright may be reasonable. Drawing a distinction between these two cases is difficult. But as an example, a device which merely played a digital sound recording (with no facility for producing a copy of the recording) is certainly legal now, and should remain legal, regardless of whether or not the sound recording is protected by some technological measures.

  3. Any restriction on devices permitting access to or copying of works protected by technological methods must have a clear exemption to permit research into the technologies concerned, even where such research may reveal methods of circumventing the technology.

  4. There must be a way for works to enter the public domain. For example, copyright owners who wish to employ technological methods to protect their works might be required to either build a time limit into the protection, or to submit unprotected versions of the works concerned to a public repository from which they will be available upon expiration of copyright.

  5. The provisions of Part VIII of the Copyright Act (Private Copying) may need to be revised to take into account technological restrictions on access and copying. In particular, if private copying of a work is precluded by technological means, then the author, performer, and maker of the work should not benefit in respect of that work from the levy on blank audio recording media provided for in Part VIII of the Copyright Act.


The present Copyright Act represents a well thought out balance between the needs of copyright holders and users. Any changes to the current copyright regime should be made carefully, and should preserve this balance. Also, any such changes must permit (and indeed encourage) continued research into encryption and related technologies associated with technological access controls.

Eric R. Smith
(address removed)

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