ARCHIVED — Thomas Dzubin

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 Thomas Dzubin received on September 13, 2001 via e-mail

Subject: Re: Comments on Government of Canada Copyright Reform

This letter is in response to a call for comments on the Industry Canada Internet web site. Although I realize that the current Copyright Act (C-42) needs to be updated in response to the World Intellectual Property Organization (WIPO) Copyright Treaty, there is a range of possible updates which would fulfill our obligations under the Treaty, and I am concerned that some of the proposals go significantly beyond these obligations and may even conflict with rights enumerated in Part 1 of the Canadian Constitution Act, 1982 known as the Canadian Charter of Rights and Freedoms.

I am concerned that, in the Copyright Reform Process presently taking place, consideration is being given to preventing the circumvention of technologies used to protect copyright material as well as prohibiting tampering with rights management information.

The rights of the creator of any copyrighted work in Canada are not absolute. There are a number of exemptions in the current Act as well as the concept of "fair dealing" which allows for other legal uses of a copyrighted work for private study, research, criticism, or news reporting. Other countries (United Kingdom, France, Germany, Australia, New Zealand, etc.) have also seen fit to include a similar principle in their copyright law, most notably in the United States of America where it is called "fair use".

Because so many other countries have similar fair dealing exemptions, it can be assumed that these exemptions have been explicitly allowed because of some "social good". Indeed, as an example, if news reporting were to be hampered because of fear of copyright infringement, it could be argued that one of the most important checks and balances in a free and democratic society, the operation of an independent news media, would be damaged.

It is likely that in the future, more and more copyrighted works will be in digital form and be protected with encryption or other technologies to dissuade casual copyright infringement and obviously, that is the right of the work's creator. However, there are both valid non-infringing and infringing (fair dealing) uses of copyrighted works which may be hampered by this.

I oppose any copyright reform, which would make it illegal to circumvent any encryption or technology used to protect copyright material. I oppose this reform because it is likely that this would completely nullify the fair dealing exemptions of the Act and thus nullify the social good that these exemptions provide. Creators of copyrighted works in encrypted digital form are likely to only include methods of using (reading, playback) the works that are a SUBSET of valid, legal uses. There may be other valid, legal uses of the works [software backup, conversion to a form usable to blind or hearing-impaired people] which the creator of the copyrighted work does not wish to allow, but are still legal. Use of other methods to use the works in valid, legal ways may be necessary and may involve circumvention of encryption or other protective technologies.

A current example is the use of certain Digital Video Disk (DVD) works/movies that do not allow the skipping of commercials at the beginning of movies. This may seem like a small item, but if someone produces a device that does allow skipping of commercials at the beginning of a movie, I do not want the production (or possession) of such a device to be illegal. Also, please consider the far future when important digital works may be protected in some technological way and the original playback mechanism has been discontinued, lost, or forgotten. Libraries or archivists may need to be able to circumvent the protection. Outlawing such circumvention or even outlawing possession of programs or equipment which may allow for circumvention should be avoided at all costs.

It is important to note that the current Canadian Copyright Act is not as open-ended as other countries with regards to exceptions to the acts of copyright infringement. In some countries, for example, parody is also considered a fair-use non-infringement of a copyrighted work, but not in Canada. In Finland, some rights to copy are given to certain institutions such as hospitals or prisons. In Canada, the exceptions are exhaustively and completely listed as a closed set in section 27 of the Act. The Canadian Copyright Act is already quite strict and additional protection that limit valid uses and limit fair dealings exemptions is not necessary.

In the Canadian Charter of Rights and Freedoms, one of the fundamental freedoms guaranteed is the "freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication". In the future, when a large amount of communication and expression will be in digital form, we must be sure that we update the laws of our country to deal with this, but we also must be sure that we do not infringe on rights and freedoms already guaranteed. Outlawing "circumvention of technologies" would also outlaw valid, fair dealing usage of copyrighted works and might be considered a violation of a fundamental freedom.

Thank you for considering my comments.

Thomas Dzubin
(Address removed)