ARCHIVED — Adam Mills

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 Adam Mills received on September 13, 2001 via e-mail

Subject: Re: CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES

The following document is in response to the Consultation Paper on Digital Copyright Issues released by Industry Canada and Canadian Heritage. It includes responses to a variety of specific issues, as well as some items intended to provide a broader perspective on copyright issues.

To Begin: A Fundamental Error

The consultation paper repeatedly refers to rights holders, which from the context can be construed to refer to holders of copyrights. The general public are referred to as users. This fundamental error of language ignores the fact that the public also has rights, such as the right of fair use while a work is protected by copyright, and the right to make any desired use of a work once its copyright has expired. The Canadian government and its agents would do well to remember this at all times.

Internet Service Providers

The networks of Internet service providers (ISPs) carry very large volumes of data, which ISPs cannot be expected to examine and police. Indeed, given that much of that data may be of a sensitive and personal nature, they should not be permitted to examine it in any more detail than is strictly necessary to maintain their networks. Additionally, ISPs cannot be expected to have expertise in determining whether any given piece of content passing over their network constitutes a copyright violation. Thus, ISPs should have no responsibility in law to monitor content on their networks for copyright violations, unless that content is provided by the ISP itself.

Further, ISPs should have no responsibility in law to terminate access to a machine or user when presented with claims of copyright violations involving that machine or user, unless presented with a court order to do so. Copyright holders may find this requirement onerous, but it is necessary to ensure that the rights of Canadians are respected at all times, and not violated at the whim of others. By contrast, a "notice and takedown" approach does nothing to guarantee the rights of the end-using citizen, concerning itself solely with protection of the copyright holder and the network intermediary. Additionally, in any legal proceeding in which such an order is sought, the individual or organization against which such an order is sought must have a guaranteed right of reply, before the order is made. Such proceedings must be open to public scrutiny, with a guarantee in law that any information provided in such a forum may be disseminated without restrictions of any kind. Without these guarantees, Canadians may be subject to extra-judicial attacks on their rights by malicious or incompetent corporations or other organizations.

Fair Use

No extension of the rights of copyright holders is permissible, if it violates the right of Canadians to fair use. To prevent avoidance of the right of fair use by technical means, it will almost certainly be necessary to explicitly provide for fair use in legislation. Fair use includes: excerpting of material for critical or other artistic uses; copying of material in order to allow an authorized user of the material to use it at a time and place of their choosing; and copying of material for purposes of "backing-up" the material against inadvertent loss.

Copyright Expiration

There is significant interest among copyright holders in the use of technological means to secure their material from unauthorized copying. The means proposed generally do not include any guarantee that the material so-protected will cease to be protected once the copyright has expired. As Canadians have the right to make any use they desire of a work once its copyright has expired, such means of protection must be required by law to include a means of deactivating the protection once expiration has taken place.

It may be that copyright holders see this as irrelevant, counting on continued extensions of copyright terms to ensure that material currently copyrighted will never enter the public domain. This would be unacceptable, constituting an attack on the public policy goals served by copyright. Further copyright term extensions must be forbidden, and wide public consultation should take place to consider whether terms should be shortened.

Presumption of Innocence

It is fundamental that any legislation designed to protect copyright holders must prohibit the taking of counter actions or punitive actions against a person or organization accused of copyright violations until a judicial proceeding has established that such violations have, in fact, occured. This right is provided in law in the Canadian Charter of Rights and Freedoms, section 11.d). It is recognized that this is not the current practise of the Canadian government, as demonstrated by the tax on recordable digital media, such as recordable compact discs, which is designed to benefit copyright holders. Whatever excuses may be made for this policy, it is clearly predicated on the assumption that all such media are used for the unlawful copying of copyrighted material, despite the fact that there are myriad lawful uses for such media. This amounts to an ongoing fine on Canadians who purchase such media, based on a violation of the right to presumption of innocence.

Searches and Privacy

Any legislation designed to protect copyright holders must ensure the privacy of Canadians is respected, as is their security from intrusion into their property, including computers and other digital systems. Material provided to the public through means generally accepted to be public, such as public web sites or public ftp sites, may be searched for copyright violations by any interested party, at any time. However, material which is not provided publically must not be searched unless in accord with a lawfully-obtained search warrant, and the warrant must be presented to the individual or organization whose property is being searched, at the time of the search. This is merely an extension of the principle that owners of stolen property are not permitted to forcibly search persons or premises for that property, but must have such searches conducted on their behalf by police, who may require warrants to conduct such searches.

Making Available Right

The control provided by a Making Available Right, as discussed in section 4 of the paper, is a reasonable extension of the rights of copyright holders, on face. However, it must be subordinate to the rights provided to all Canadians, such as fair use. For example, if a work is authorized for dissemination only in printed form, it must still be permitted to reproduce portions of the work in other forms for critical or artistic purposes.

Libraries

Libraries play a key role in supporting Canadian public policy goals, such as encouraging literacy and allowing citizens of limited means to access information resources they would otherwise be unable to afford. Consequently, it must be a pre-eminent goal of any modification to Canadian copyright policy to ensure that libraries retain the right to loan materials of all kinds to any citizen, without paying any additional fees beyond the original price of purchase, which must be in keeping with the price paid by other users. Given that copyright holders have publicly indicated that they regard libraries as a threat to their revenues in the digital age, it will likely be necessary to mandate such protections in law. Failure to protect libraries will lead to the failure of the above public policy goals.

Licensing v. Ownership

Copyright owners seek to turn all works into performances through "Digital Rights Management" schemes, which can only be experienced again at additional expense. This represents a major shift in policy, which would undermine the balance between the power of copyright owners and users, shifting total control of the owner-user relationship to copyright owners. Such a shift would not be acceptable to most Canadians, and must be countered by government action. The Government of Canada must re-affirm that the public policy interests of maintaining the balance between such parties greatly outweighs the value of allowing copyright owners to extort money on an ongoing basis through technological schemes. It must be made clear that once a person has paid for a copy of a work, they own that copy (though they do not own the underlying work) and are free to use it as they wish, subject only to the established limits of copyright law. Schemes whereby the copy is held hostage, and can only be used through continued payment of a fee, risk the creation of a "pay-per-view" culture, where all cultural material exists only at the whim of corporations, and access to shared Canadian heritage is limited to those willing and able to pay, continuously. Copyright owners like to call this a "subscription" model, as if this were the same as subscribing to a magazine. Yet they choose to ignore the most glaring difference: if a person chooses not to renew their Maclean's subscription, agents of the magazine will not arrive at their door to seize back issues, nor will those already-paid-for magazines spontaneously combust. Under many DRM schemes, however, this is exactly what will happen. Failure to continue paying up will result in licenses for content becoming invalid, or actively being invalidated, and legitimately purchased content will no longer be useable. Failure to prevent such schemes from becoming common will forever destroy the rights of citizens to do anything other than pay.

Technological Copy Protection in Software

It cannot be assumed that the Government of Canada will act to adequately protect its citizens from copyright bullies. Thus, the right of Canadians to act in their own defence must be assured. Whatever software schemes may be introduced to protect copyrighted material, Canadians must retain the right to break them, and to distribute the knowledge of how to break these schemes, and the tools for doing so. Each Canadian must be assured this right, so long as they use such knowledge and tools only for lawful purposes, such as exercising their right to fair use of copyrighted material, and exercising appropriate control over copies they lawfully own. Further, this defence must be assumed, such that an accuser must prove that a person using, creating or distributing such knowledge or tools has intent to do so for unlawful purposes.

Technological Copy Protection in Hardware

Given that existing software copy protections have proven to be poorly designed and implemented, many copyright owners hold out the hope of a hardware solution. Particularly, they hope to enforce the use of "secure" hardware which will guarantee that all content can only be used in the manner they authorize. This would be a total breach of both the letter and spirit of copyright law, and must be universally outlawed. A legal prohibition on such systems is needed, as if they are permitted, content providers will attempt to use market pressure to force the adoption of secure hardware. They will be aided by hardware vendors, who will see the opportunity for tremendous sales as all computer users are forced to replace all of their systems in order to use any new copyrighted material. It should be noted that copyright holders are again misusing the English language, failing to point out that such "secure" systems are only secure from their point of view, and are in fact totally insecure from the perspective of the users expected to purchase them. Given the absolutist nature of the proposal to prevent users from exercising their lawful rights to use material, only an absolutist legislative response is acceptable.

Privacy Implications of Technological Copy Protection

Many content providers also hope to include massive privacy violations in their copy protection schemes. These would include the forced requirement to authenticate oneself before obtaining access to any copyrighted material, as well as the monitoring of how users use the material. This is universally presented as being in the best interest of the user, allowing content providers to customize their experience. However, it would eradicate the traditional relationship between buyer and seller, where the buyer is permitted to retain a great deal of their privacy, and in many cases can maintain near total anonymity.

Copyrights of Individuals

It is often forgotten that individuals, who are not generally regarded as part of the copyright-holding classes, also hold copyright to their own creations, including emails, text messages, personal web pages, etc., regardless of whether these creations have any broad artistic, cultural or economic merit. Yet there have been several publicized cases of communications intermediaries, including the Microsoft Network, designing user agreements for their services such that use of their services entails surrender of all rights to material traversing their networks to the network owner. Such clauses are typically hidden deep within agreements that are usually unread by users, and are couched in legalese which makes it unlikely most users would understand their implications if they were read. The only effective response to such "click-through" agreements is legislation which expressly states that copyright can only be surrendered through a negotiated and signed legal instrument, and not through such quasi-legal subterfuge. Properly, the rights of individuals to own copyright should extend to the personal information collected about them by corporations and governments. Individuals have a right to own this information, and to near total control over how it is stored and used.

Permanent and Transient Copies of Copyrighted Works

There is much discussion on the subjects of copyrights concerning what should constitute a copy of a work for copyright purposes. This discussion has been largely led by those who seek to impose a tariff on each and every party who may be involved in the transmission or perception of a work. The principle argument seems to be whether bits in transmission or stored in temporary memory (typically Random Access Memory) should constitute a copy. They should not. It is generally accepted in the computing industry that material has not been copied in any long-term sense unless it has been written to a permanent storage medium, such as a hard drive, compact disc, Flash memory, etc. A transient "copy" in volatile storage such as RAM should not be treated as a copy for copyright purposes.

International Treaties and the Rights of Canadians

In recent years, the Canadian government has demonstrated a disturbing trend to surrender the rights of Canadians, and its own ability to pursue public policy goals, to entities who do not share these goals, by means of international treaties. In implementing international treaties concerning copyright, all elements of the Canadian government must keep in mind at all times that their principle responsibility is to safeguard the rights of Canadian citizens, and protect the ability of the government to pursue public policy goals. As the only legitimate reason any government has to exist is to protect the freedom of its citizens, failure to achieve this goal will serve to damage the legitimacy of the Canadian government in the eyes of its citizens.

The Relative Importance of Copyright and Content

There is a common belief, promulgated by the content-creating industries, that industry-created content is the key to the survival and growth of the Internet. This is not true. The most important function of the Internet is as a medium for communication amongst individuals. This communication takes such forms as email, instant messages, chat forums, and others. The superior importance of the personal communications industry is shown by the relative revenues of the communications and content industries. In the United States, for example, the telephone industry takes in as much revenue in four weeks as the movie and music industries combined generate in a year. Like the Internet, the telephone was once mistakenly seen as a mere conduit for pre-programmed content. Now, however, it has reached a place of far greater economic and social importance by serving as a humble conduit for humans to communicate with each other directly.

The content industry often holds up the myth of the primacy of their content as evidence of why the sky will fall if their demands for total control of the Internet are not met. Clearly, this argument is misleading, at best. The Canadian government should not allow itself to be stampeded into rash action by such arguments. It would be a grave error to allow the concerns of copyright holders, however legitimate they may be, to hobble the development of a communications medium with such promise.

Deterioration of the Purpose of Copyright

It is often forgotten that the original purpose of copyright was not to allow copyright owners to become fabulously wealthy at the expense of users. It's original purpose was to encourage the creation of new works, and their wide distribution, by providing limited control of such works to their authors. In other words, it was designed to benefit the public first and foremost. Rarely is this mentioned today, where the discussion centres on the right of the rich to become richer, and the right of the rest of us to help them become richer by giving them our money.

At the heart of any discussion of reforming copyright laws must be this first principle: copyright, like any other law, is justified only in so far as it benefits the public good. When it ceases to benefit the public good, the public have every right to ignore it, and they will.

Adam Mills