ARCHIVED — Ryan Kelln

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 Ryan Kelln received on September 14, 2001 via e-mail

Subject: Comments of Copyright Reform

Freedom of Thought

It is odd that after striving for freedom of expression for so long most North Americans have ignored or forgotten about freedom of thought. Freedom of thought is both the parent and child of freedom of expression, for what is expression, but the communication of thoughts and ideas. Both of these freedoms rely on access to information, thus requiring freedom of information. The Canadian government has an (http://www.infocom.gc.ca/acts/default-e.asp) Access to Information Act, [www.infocom.gc.ca], but it currently only applies to information generated by the government. Ideas, inventions, techniques, methods and processes, collectively called intellectual property (IP), are not free to distribute. Instead, intellectual property is handled under a number of different laws including copyright [laws.justice.gc.ca], patents [laws.justice.gc.ca], trademarks [www.cbsc.org], and trade secrets. All of these laws treat intellectual expression as property that can be owned and controlled. The purpose of this document is threefold; to raise awareness and importance of intellectual property issues, investigate and question the rights granted by these laws, and finally to start a discussion on alternative copyright laws for digital media.

History of Copyright and Intellectual Property

The world's first modern copyright law was passed by the British parliament in 1710. Thus, great artists such as da Vinci, Michelangelo, Shakespeare, Newton, and Bach created extraordinary works without the framework of copyright law.⁽¹⁾ This is not to suggest that they did not deal with the same issues, but to acknowledge that ownership of IP has not always been a right. Canada's (http://strategis.ic.gc.ca/sc_mrksv/cipo/learn/history/history-e.html) first copyright laws were passed in 1832, and have undergone many changes to reflect the advent of new technology such as photocopiers and VCRs.

Copyright laws were created to deal with expression of ideas. Their express purpose is to recognize, promote and protect intellectual expression, as well as encourage dissemination of and enable access to such expression.⁽²⁾ Copyright's main tool to promote the underlying goals of intellectual expression is the grant of ownership to the creator or author of the work. Copyright acknowledges that IP produced by the public is not irreversibly privately owned and after the loan of rights expires the work returns to the public domain. The length of this lease has gradually been increased since the inception of copyright law and currently stands at the lifetime of the author plus 50 years (in the US this is extend up to 90 years for companies).

It is important to realize that ownership of physical property such as land, houses and clothes is different from ownership of ideas and expressions of those ideas. The owner of physical property is deprived of the physical commodity if they give ownership to someone else. Intellectual property, especially ideas that can be expressed digitally, can be given to another resulting in the both the receiver and the original owner possessing a perfect copy. More than one person can use an expressed idea, whether it is a song, letter, or mathematical formula, and generally the more people that use it the more it's value increases. This is fundamentally different from physical property and should be treated as such.

Current Developments in Intellectual Property

There are many organizations, artists, companies and lobbyists that have ideas on how the IP laws should be changed. The United States recent passed the Digital Millennium Copyright Act (DMCA) (http://www.eff.org/ip/DMCA/hr2281_dmca_law_19981020_pl105-304.html) that is being used to prosecute Dimitri Skylarov (http://freesklyarov.org/), a Russian programmer. The DMCA, supported by the Motion Picture Association of America (MPAA) (http://www.mpaa.org) and the Recording Industry Association of America (RIAA)(http://www.riaa.org/), disallows the construction of tools that circumvent copyright protection technology. The Consultation Paper on Digital Copyright Issues [strategis.ic.gc.ca] notes that this may extend copyright law into areas beyond its scope. However, both the MPAA and the RIAA support the DMCA because it enhances that ability to control the distribution of intellectual property, which they believe reduces piracy, which prevents lost profit. The DMCA is an implementation of some of the agreed upon provisions of World Intellectual Property Organization (WIPO) (http://www.wipo.org/) treaty (http://www.wipo.int/treaties/ip/copyright/copyright.html) that states there must be "legal protection and effective legal remedies against the circumvention of effective technological measures", that protect author's granted rights.

Other organizations are trying to reduce the amount of control artists and distributors have over their work. The Electronic Frontier Foundation (EFF) (http://www.eff.org) supports the Open Audio License (OAL) (http://www.eff.org/IP/Open_licenses/eff_oal.html) that guarantees the recognition of authorship but ensures that anyone may "freely access, copy, distribute, modify, create derivative works from, and publicly perform" (for both commercial and non-commercial purposes) the music.

Computer software has a number of licenses that promote the distribution and sharing of information. Organizations like the Free Software Foundation (FSF) (http://www.fsf.org/) promote the GNU General Public License (http://www.fsf.org/licenses/gpl.html) that guarantees "the users' freedom to run, copy, distribute, study, change and improve the software". Access to the source code of the software has many advantages including increasing the quantity and quality of available code for other programmers to learn from.

For writing and publishing the OpenContent License (OPL) (http://opencontent.org/opl.shtml) provides similar freedom of distribution and modification, although the OPL states that "you must cause the modified content to carry prominent notices stating that you changed it, the exact nature and content of the changes, and the date of any change." Licenses such as the OAL, GNU GPL, and OPL acknowledge current distribution systems such as the Internet and promote the free flow of information and ideas over an author's granted right to control the use and distribution of their work.

The Principles of Copyright and Distinction Between Ideas and Expression

The key to copyright is that facts, ideas and news are public and cannot be owned, but expressions of those ideas can. For example, rights are granted to control the distribution of the words of a poem, but the idea expressed by the poem is free to be further disseminated. The actual form in which the idea is subsequently distributed must however be different enough from the poem to avoid plagiarism (so none of the original author's rights are infringed upon). This raises the question of whether that same idea can be communicated by a different expression. A compromise, managed by IP law, exists between the free distribution of ideas and the controlled distribution of expression of ideas. In other words, IP law balances freedom of information with freedom of expression. Two principles guide this compromise ⁽²⁾:

• Recognize, promote and protect intellectual expression
• Encourage dissemination of and enable access to such expression

Our society is founded on the first principle (freedom of expression) and develops because of the last (freedom of information). The importance of these principles cannot be understated.

Currently, to promote and protect intellectual expression, the government grants ownership it. This includes the rights to ^{(2) (3)}:

• Publish, produce, translate or reproduce the work
• Perform in public or communicate a work to the public by telecommunication
• Authorize the above acts
• Protect the integrity of the work
• Ensure that they are properly remunerated and recognized

The consideration given to rights holders is thus balanced with the level of access and (government promoted) dissemination of the work. In practice, rights holders, with exclusive control over the distribution of their work, can deny access and dissemination. This balance is maintained because of two important reasons, it:

• Reduces the governments ability to promote one expression over another
• Encourages rights holders to continue producing intellectual expression

The reason that authors require encouragement in the form of publishing and distribution rights lies in the distinction between ideas and their expression. The distinction relies on the notion that there is a difference of value between the IP and the idea it expresses. Ideas are seen as free (valueless), common, and easy to generate - while creating the intellectual property is difficult and thus a highly valued skill. This and the ridiculousness of trying to copyright an idea creates the justification for the current system of IP law. Thus it is believed that the creator is using free resources and investing value to them. This value must be protected and remunerated or no one will want to continue producing IP. However, the value judgements of ideas and IP are not constant, but change with time, as the ideas and the nature of the IP themselves evolve.

The current system rewards an author as "a solitary individual" who creates "original" and "transformative" work independent of the influence of other expression.⁽⁴⁾ The notion that the author is adding to society, and thus gains the right to control the addition, is archaic and romantic. It is more correct to perceive expression as an extension of the influences of the creator. The inspiration that forms the basis of "original" IP is based both on the ideas and the IP previously experienced. Moreover, learning how to an express an idea is just as valuable as expressing the idea, especially as technology and techniques of expression become more specialized. Thus the value to the author in creating the IP is achieving parity with the value to the audience.

A number of factors are increasing the value of an idea. The generation of ideas can require vast resources and time. Fields of study such as genetics produce new facts and ideas, but at a high cost. Since facts and ideas are free to distribute (and must be distributed for freedom of information) this, in theory, allows anyone to create IP based on this new information. However, it is not possible to understand this information without cost. This implies ideas of differing values. A general trend towards specialization increases the number of highly valued ideas, which in turn furthers specialization.

Since ideas may have value and expression has value parity between author and audience, encouragement, by granting distribution and use rights, is not required. Instead, having an awareness and understanding of highly valued information, ideas and other intellectual expressions rewards the author. Indeed, by increasing access and dissemination the government can reward authors more than by granting them control. The notion that new IP will not be created because of the loss of invested value is no longer valid. Incentives that do not affect access can be used to encourage further IP. For instance, an author may receive recognition and remuneration for their work.

Fair is Fair

Current copyright laws already include "fair dealing" and exceptions that are intended to protect the rights of the people who use the work and increase access to the work. Private study, research, criticism, review or news reporting all fall under "fair dealing" ⁽⁵⁾. However, even "fair dealing" is circumvented (http://www.eff.org/IP/DMCA/US_v_Sklyarov/us_v_sklyarov_faq.html) by new technological measures by the private sector and recently proposed rights by the WIPO. The failure of "fair dealing" is that it difficult to enforce and restrictive in practice. Since the government does not police copyright laws but leaves enforcement to the copyright holders, ensuring legally "fair" use of the materials is very difficult (http://www.riaa.com/Protect-Campaign-3.cfm). However, legitimate uses are discouraged beca use of the perceived illegality of unfamiliar "fair dealing" laws. In practice, because enforcement of copyright is expensive and difficult only wealthy and legally able copyright holders benefit. There even exist German law firms that write cease and desist letters (http://www.theregister.co.uk/content/4/20431.html) to businesses they think are infringing another company's trademarks, without being employed by the latter, and demand payment from the company on the receiving end of the letter. The practical failure of "fair dealing" has spurred private sector technology (http://www.technologyreview.com/web/roush/roush083001.asp) and lawsuits (http://abcnews.go.com/sections/tech/DailyNews/mp3_index.html) (and lawsuits (http://www.mp3.com/news/533.html) and more lawsuits (http://www.wired.com/news/politics/0,1283,35394,00.html) that have reduced the access to large amounts of digital intellectual property. Regardless of merit, these lawsuits point towards a trend in the private sector to increase distribution control and decrease general access, while the public desires more access and freer distribution. The popular solution to make "fair dealing" simple for users and easy to enforce for authors is remove the rights of authors to control who can publish, produce, translate or reproduce their work.

The OAL, GNU GPL and OPL licenses are evidence for the growing support for increased access and dissemination. All of the licenses still provide the right for the author to be recognized and some cover remuneration. These licenses rebalance the two principles of intellectual property by reducing the rights of the IP owners, and increasing access and dissemination. In effect, these licenses restore the publics right to disseminate the work as if the work was in the public domain. Giving the general public rights of use and access to work that has been presented to them is much simpler and more effective then the complex "fair dealing" rights and copyright exceptions in current law.

New Rights and Goals

The principles of copyright law are not flawed, so as technology and society transform, it is the granted rights that need to be questioned. As dissemination and distribution becomes cheaper, easier and more customary for individuals in our society these rights in particular should be examined. It is not necessary to encourage intellectual expression by granting exclusive control of distribution to rights holders. "Fair dealing" clauses and exceptions in current law are too complex, ineffective and unfamiliar for both rights holders and the general public. A new set of rights must be identified.

A good candidate for a new set of rights is digital content. More than any other form of expression, digital content has the most opportunity for copyright reform. An effective, primary framework for digital content should have the following goals:

• Freedom to distribute, reproduce and publish
• Diversity and quality
• Recognition and remuneration for authors

Secondary goals have been identified by the Intellectual Property Policy Directorate ⁽²⁾:

• Promote Canadian values
• The rules should be clear and allow easy, transparent access and use
• Promote a vibrant and competitive electronic commerce in Canada
• Global context

Given these frameworks it is possible to discuss possible rights. The spirit of which can be described here:

(1) Grant the public the right to freely access, copy, distribute, modify, create derivative works from, and publicly perform the work either gratis or charging a fee for distribution. Distribution fees must not include author remuneration unless the author grants permission.

This would allow for easy, transparent access to mass distributed work. It also allows distributors to charge for additional services such as content selection and community infrastructure. Since fees may not include author remuneration fees this would lower access costs, with lower access costs the work may be experienced by (and hopefully empower) a wider audience. Barlow (http://www.eff.org/%7Ebarlow/barlow.html) pointed out the extreme case: "Imagine the challenge of trying to write a song if you'd never heard one." ⁽¹⁾ Access can empower those who need it most. As a side benefit, business and other copyright holders will have less litigation.

(2) Acknowledge current and previous author(s). All authors may choose to be designated as "anonymous".
(2a) All authors have right to determine who receives their remuneration; this can be determined at any time after the instantiation of the copyright.

Recognition is critical to encourage intellectual property development. Mandatory acknowledgement of previous authors helps promote all authors and prevents abuses with minor changes of derivative work. It may be necessary or practical to create a system that gradually removed previous author recognition from continually modified work, perhaps a maximum of 9 previous authors. It is also important to allow for anonymous authors. The best system would have technology that would allow authors to be designated as anonymous yet still receive remuneration. Technology that gives access to the previous authors versions would be extremely useful in addition to just recognition. Although (2a) is not as critical, it allows authors to work collectively or for another, such as a company. It also allows authors to change the beneficiary of the remuneration, for example if they leave the fore mentioned company.

(3) Previous authors' names may not be used to assert or imply endorsement of derivative works without the previous authors' permission.

These are the equivalent to current "moral rights"⁽⁵⁾. This acknowledges that the work is public, but the author's endorsement is not. Anyone can modify the work, but it has no relation to the original unless permission is given. This reduces the current protection of the integrity of the work, but only if the work is viewed as a static entity, which these new rights make no distinction of. If the author wishes to protect the integrity of their work they should not release it to the public. This unfortunately may reduce the total IP released, but generally the benefits of recognition and remuneration should reduce the amount of unreleased IP. Any work that is not released by one individual is soon to be released in a similar form by another because of increased freedom of information and wider dissemination of other ideas.

(4) Provide a means for remuneration of the author(s) that must be distributed with the work. At minimum an address or other information leading to a remuneration system*, at best, a transparent, easy to use technology with similar requirements to those needed to access the work itself.**
(4a) Total funds received, average or mean donation, and total cost of work must be included in remuneration information (other fanancial, evironmental, or relevant information is encouraged).

* Example: Weblink to a remuneration service or email address.
** Example: If work was downloaded through the Internet then remuneration should be possible over the Internet as well.
It is important to note that although a means of remuneration must be provided, the remuneration itself is not mandatory. Work that is of high quality will receive a great deal more remuneration then is currently possible because of the wider distribution. This system increases the bond between author and audience, promotes quality and openness (together with available financial info), and gives consumers more power to make informed decisions and to influence the market of intellectual expression.

For software the following must also be guaranteed:
(5) Freedom to execute (run) the program, for any purpose.
(6) Freedom to study how the program works, and adapt it to your needs. Access to the source code is a precondition for this.

These freedoms allow for derivative works to be made and executed (run). It is important to treat software both as the text and executable as it exists as both as far as intellectual property is concerned.

Implications and Implementations

These recommended rights require major changes to the copyright law in Canada, and possibly an even larger changes to The Canadian Intellectual Property Office (CIPO). The optimal system requires a large investment in new technology, including an author tracking system, integrated remuneration system, and possibly a database of Canadian intellectual property. Any payment system would require assistance from and integration with financial institutions or private companies such as PayPal (www.paypal.com). Fortunately, this isn't as hard as it sounds. Digital works are suited to being archived in a database, with corresponding data about the work, author, and remuneration. Technology is much easier to create and manage compared to creating and managing equitable copyright laws. CIPO and the government could be fully responsible for the technology or work with private sector partners. In addition, any sort of accessible lib rary of information and intellectual property will encourage new development and innovation.

Terms of protection could either remain the same, apply to remuneration only, or terms could be extended permanently, but be practically limited by the remuneration strategy. A number different remuneration strategies are outlined below:

1. All remuneration goes to latest author.
• simple, easiest to implement
2. Current author contribution based on percentage of difference from previous version, remuneration broken up by percent, recursively.
• requires information theory based determination of percentage
• difficult to implement but promotes intellectual property the most
• rewards diversity and originality
3. Current author receives a fixed percent of remuneration; previous author gets the remainder, recursively.
• simpler than (2) but still requires accurate tracking of authors
• promotes quality and evolution of IP

All systems will require an electronic micro-payment system that makes the payment and receipt of the remuneration transparent and easy for both author and audience. Rights management technology may require laws making tampering with or circumventing it illegal. However, these clauses must be sure not to prevent the free distribution of the work. In most cases it will be easiest to get IP from trusted sources, mitigating the need for excessive development of rights management technology.

This remuneration strategy has been described elsewhere as a gift-based or tip-based system. In any case the ability to access content at a low cost and then reward the creators creates an economic system that rewards quality, promotes author/audience relationships, and allows for intelligent consumer decisions. Money becomes a means of promoting expression in a very real sense, changing the common perception of money as a commodity to money as a reward or gift. Although this is clearly outside the mandate of the copyright laws, it is a worthwhile goal and certainly not possible without changes to the concept of intellectual property. Copyright law does not need to be just a system of protection and promotion of ideas; it can advance a variety of positive social changes.

Conclusion

Current technological, artistic and scientific developments have forced intellectual property laws to change. After the long struggle for freedom of expression it is necessary to continue to fight for freedom of information and thought. This fight concerns consumers, artists and multi-national businesses alike. Current trends in intellectual property law are in opposition to current freedoms and create an atmosphere that restricts the development of any further freedoms. Many existing copyright holders would argue the economic advantage of more protective laws, but history has shown that openness and freedom increase overall prosperity more than restrictive control. The opportunity to begin a reform of copyright has never been better then with the advent of recent digital technology. It is critical for Canada to show global leadership and be the frontrunner for change that will have as great an impact as the civil rights movement.

Inspiration:
Against Intellectual Property (http://www.uow.edu.au/arts/sts/bmartin/pubs/98il/il03.html), Chapter 3 of Information Liberation by Brian Martin (http://www.uow.edu.au/arts/sts/bmartin/)
The Cathedral & the Bazaar (http://www.tuxedo.org/~esr/writings/cathedral-bazaar/) by Eric S. Raymond (http://tuxedo.org/~esr/)

Notes and References:
⁽²⁾"The Next Economy Of Ideas" (http://www.wired.com/wired/archive/8.10/download_pr.html) by John Perry Barlow (http://www.eff.org/%7Ebarlow/barlow.html) {Return to main text}

⁽²⁾Consultation Paper on Digital Copyright Issues [strategis.ic.gc.ca] {Return to main text}

⁽³⁾"A Framework for Copyright Reform" [strategis.ic.gc.ca] {Return to main text}

⁽⁴⁾"The Author-ization of Information" (http://english.ttu.edu/kairos/3.1/reviews/amore/boyle.html), by Paul Amore [english.ttu.edu/kairos/3.1/reviews/amore] {Return to main text}

⁽⁵⁾"A GUIDE TO COPYRIGHTS", PDF format [strategis.ic.gc.ca] {Return to main text}

Other Resources:
The Canadian Intellectual Property Office [strategis.ic.gc.ca/sc_mrksv/cipo/]
CIPO's Canadian Patent Database [patents1.ic.gc.ca]
(strategis.ic.gc.ca/cgi-bin/sc_consu/trade-marks/search_e.pl) CIPO's Canadian Trade-marks Database [strategis.ic.gc.ca/sc_mrksv/cipo/]

Ryan Kelln

---