ARCHIVED — Mark J. McCutcheon

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 Mark J. McCutcheon received on September 14, 2001 via e-mail

Subject: Response to Consultation Paper on Digital Copyright Issues

Response to Consultation Paper on Digital Copyright Issues Mark J. McCutcheon, 14 September 2001

The Consultation Paper on Digital Copyright Issues is a useful and fairly balanced document, and asks important questions, the answers to which impact greatly on our judgement of what changes to Canadian copyright law are desireable and which are dangerous. In this response, I intend to concentrate on two sections of that Paper, Section 4.2 (Legal Protection of Technological Measures) and to a lesser extent, Section 4.3 (Legal Protection of Rights Management Information).

One of the more important questions occurs late in the Introduction: "Do the challenges to copyright truly represent challenges to core copyright principles or are they primarily challenges to existing business and distribution models?" Based on my reading of the Consultation Paper, and taking into account my knowledge of and experience with digital content technologies, I believe that the proponents of copyright legislation that would outlaw techniques and/or devices that can abridge technological methods of controlling use (so-called "anti-circumvention" legislation) have not made a convincing business case that it is required.

Proactive legislation is always a mistake, and never more so than in respect of new or emerging technologies. The idea that there is a wonderful new world of commerce "out there" if only the right legislation were in place to guarantee enough profit to those who would create it, is a delusion. Laws should respond to the manifest needs of society, NOT anticipate them. Those that claim there is a wonderful future in digital content, if only there were enough laws to protect their investment in intellectual property, must be required to prove that they cannot develop it otherwise. The can provide that proof only by trying. We must demand that they show there is no other means of protecting their investment than to create a new and more restrictive body of law, before we grant them that benefit. And they have not done so.

As a security engineer with the Canadian branch of a major electronic security firm, I know from my personal experience that there are many ways to safeguard digital content that have not been tapped by those content vendors who have lobbied for and supported major changes to our copyright legislation, based on the WIPO Copyright Treaty. They may not have done so because more effective means of protection are somewhat more complicated to use than trivially-defeated methods. Those ways are perhaps somewhat more expensive to implement than the inadequate schemes that the vendors support. But is saving money for digital content purveyors a reason to write new legislation? Is cost-cutting a justification for outlawing research and investigative tools on which security researchers depend? This is something that Canadians should ask themselves. The only forum for the Government of Canada to hear that reply is likely to be through the current consultation process, so I sincerely hope that you will convey this res ponse to the Minister and the Government.

It is not the business of the Canadian government to ameliorate commercial risk. The essence of an entrepreneurial business sector is the willingness to assume risk that other businesses will not, in pursuit of reward. They need to show an inclination to develop technologies to deal with perceived risk, not cry to government to indemnify them against losses they might have anticipated but do not wish to take their own measures to preclude.

The Consultation Paper on Digital Copyright Issues section entitled "Government Rationale" states that "changes to the policy framework for copyright should not operate to hinder the development of the full potential of the Internet and other digital platforms". I believe that anti-circumvention provisions in Canadian copyright law will do just that. Making bad laws to protect bad technology is not the way to encourage our society to recognize the full potential of the Internet. There is now - and has been for many years - a continuing dialectic between the developers and the abusers of digital computer and communications technologies. In regard to rights protection, to safeguarding digital content, progress is made when current means no longer suffice. Laws that prevent attempts to challenge current technologies lead only to stagnation. Worse, they lead to a false sense of security that impedes the dialectic, with the result that when technically weak but legally protected technological measures are final ly breached, as eventually they will be, the results are more catastrophic to the rightsholders than anything that might have happened in a more open environment.

What I fear most as a possible outcome of the proposed revision of Canadian copyright law is the creation of something like the US Digital Millenium Copyright Act (DMCA). In particular, the anti-circumvention provisions of this act have been applied by industry to suppress publication of engineering research, attempt to restrict the distribution of software engineering tools which have legitimate purposes but which might be used to circumvent some copyright protections, and in general punish anyone who observes that "The Emporer has no clothing" with respect to the recording and publishing industries' technological protection and rights management measures. They have implemented pitifully weak encryption and non-professionally designed watermarking algorithms, then depended on draconian legal penalties and threat of lawsuits to suppress public knowledge of this ineptitude.

However, I am encouraged by statements in the "Proposals" subsection of Section 4.2 (Legal Protection of Technological Measures) that question whether it is possible to legislate against so-called "circumvention devices" without fundamentally shifting the balance of Canadian copyright law. I would additionally point out that prohibition against circumvention devices, which may as stated above include legitimate software engineering tools, has implications far beyond copyright law. Banning any act of circumvention, even when undertaken as scientific or engineering research, rapidly extends into the suppression of freedom of speech.

Finally, I believe it is a serious question whether the use of truly effective technological protections does not endanger the rights to fair use of copyrighted materials that have been part of our society since the introduction of copyright legislation. This aspect is clearly recognized in the "Proposals" subsection discussion of the exceptions provisions of current Canadian copyright law, which serve public policy objectives and which could easily be rendered moot by such means.

Specific Responses to Questions Posed

1. Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over and access to copyright protected material, what factors suggest legislative intervention at this time?

As stated in my general response above, I believe that proactive legislation is not appropriate. Laws written to prevent anticipated losses, when it has not been demonstrated that such losses will actually materialize, and no serious non-legislative approaches have had a chance to develop, can only distort the market for digital content.

2. Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors should be considered determinative in deciding whether circumvention and/or related activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?

I do not believe that there should be legislation controlling so-called "circumvention devices" in any context of legislation. Such devices in this field are generally software code, not physical devices. Frequently such programs are written for other purposes entirely even if used by some individual to defeat technological protection of copyrighted material. While the act of circumvention may be illegal, the tool used should not be, any more than automobiles should be banned because they are frequently used to escape the consequences of bank robbery.

3. If the government were to adopt provisions relating to technological measures, in which respects should such provisions be subject to exceptions of other limitations?

The fact that technological measures to protect copyrighted material almost inevitably abrogate long-established fair-use rights of that material is a very serious strike against their recognition in copyright law. I would urge that Canadian copyright law give no legal protection to any technological measure that does not provide a means for persons to exercise rights to the material that they would have absent that technology.

4. Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing technological measures?

There are clear non-copyright issues surrounding the notion of enshrining protection for technological measures in copyright law. A number of them have been discussed above. Privacy issues may arise if a person who has a legitimate right (under copyright law) to access protected material must prove his or her identity to the rights holder before being permitted that access. However, since no specific proposals for fair-use limitations of technological measures have been presented, this is speculative.
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