ARCHIVED — Coridon Henshaw

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 Coridon Henshaw received on September 14, 2001 via e-mail

Subject: Submission on Copyright Reform

I am writing to express my opposition to a set of proposals issued by Industry Canada to outlaw the manipulation of digital rights management (DRM) information and the use of copy protection circumvention tools. The implementation of these proposals would be a mistake that would erode consumer rights, prevent the availability of a record of Canadian culture for future generations, and adversely effect Canada's ability to educate its population to the standards necessary to compete in the global marketplace.

DRM technologies as they are utilized by the content publishing industries are not 'magic bullets' which prevent the illegal duplication of copyrighted works but have no other adverse effects. Current DRM technologies, rather than being highly directed, are very much indiscriminate tools which prevent even legal forms of copying and are frequently used to enforce rights which has no basis in Canadian copyright law. In many cases, the restrictions imposed on digital media by DRM technologies extend far beyond existing restrictions on non-digital media.

In Canada, consumer intellectual property goods are, in principle, subject to what is frequently called a first sale doctrine. Once a physical item containing intellectual property, such as a book, audio CD or video tape has been sold, the end user may, at his/her discretion, physically move, resell, lend or annotate (e.g. write notes in the margins of a book) the item. Indeed, the owner can do nearly anything to the item, short of produce additional copies or violate the creator's moral rights.

In addition to first sale rights, the copyright act also grants specific rights to duplicate copyrighted materials under specific conditions. Portions of copyrighted works may be duplicated for review or educational purposes. Audio recordings may be freely duplicated for personal use as royalties are included in the price of blank media.

Unfortunately, most DRM technologies used by content providers for digital content do not fully respect either first sale or fair dealing rights. While DRM technologies used on content delivered to the end user on physical media (such as CDS and DVDs) generally allow media to be resold, it is quite uncommon to encounter physical media DRM which allow any exercise of fair dealing rights. For example, in order to extract a portion of a DVD movie for use in a review, it is necessary to use either a DVD player which has been modified to disable copy protection or a computer-based DVD drive and computer software which circumvents the DVD copy protection scheme. Similarly, with the increasing deployment of copy protected audio CDS it may become necessary to use a circumvention tool to exercise the right to make duplications of audio recordings for personal use.

The anti fair dealing/first sale restrictions imposed by DRM technologies are not a matter of the limitations of DRM technology but a case of content providers unilaterally deciding that fair dealing/first sale provisions do not apply to their works. Even when DRM schemes have the option of supporting first sale and/or fair dealing, content providers rarely enable the applicable 'rights' for their content. For example, while many of the DRM schemes used for ebook management have the option of allowing excerpt copying, annotation, lending and the transfer of ebooks at the discretion of the ebook publisher, most ebook publishers specifically disable first sale or fair dealing rights.

Since it is necessary to use circumvention tools to exercise fair dealing/first sale rights with most protected content, the outlaw of circumvention tools would effectively render null and void fair dealing rights on virtually all copy protected media available today. Unless it is the intention of the Government of Canada to overturn--or at least severely curtail--the fair dealing provisions in Canadian copyright law, it is imperative that circumvention tools and digital rights manipulation for the purpose of exercising legally protected copying rights remains legal.

While the outlaw of circumvention tools used against physically distributed content would only prevent the to exercise of legal copying rights, the outlaw of circumvention tools used against content delivered via the Internet and stored on computers (as opposed to content streamed via the Internet and not stored) would have profound and devastating implications for Canada. The handling and lifespan of Internet delivered content is vastly different from other content delivery methods as Internet delivered content is impermanent. Unlike physically delivered content, where the delivery medium has a considerable lifespan, content delivered via the Internet is incorporeal. Its lifespan is determined not by the resilience of its media but by the useful life of the equipment used to access it.

In most cases, personal computers used to access digital content delivered via the Internet are a rapidly evolving technology and quickly becomes obsolete. The typical usable lifespan of a personal computer between the time it is purchased and the time it is obsolete is between two and three years. Many if not most computer users significantly upgrade or replace their computers on this schedule.

Internet DRM technologies, however, frequently ties content to a specific computer system configuration and a specific installation of an operating system. Content installed on one computer system cannot be transferred to another and will cease to function should a computer be upgraded or modified beyond the highly restrictive limits set by content providers.

In terms of nondigital media, the impermanence of Internet-delivered content would be best analogized by a book (digital content) which turned to dust should the book's owner attempt to store the book on a set of new bookshelves (computer). Quite clearly, the concept of conventional books turning to dust when moved from one set of bookshelves to another is quite preposterous, but unfortunately it is the current reality of digital rights management for media delivered over the Internet.

Since copy protected content delivered via the Internet is tied to one hardware configuration, it will become necessary for users of Internet-delivered content to repurchase all such content, in all likelihood at no price discount, each time they upgrade or replace their computers. Further, at each step in the upgrade cycle, there is no guarantee that content which is sold today will still be sold three, nine or fifty years into the future. Due to the fact that computers have limited lifespans, copy protected content delivered via the Internet is exceedingly expensive for the end user and, for all intents and purposes, is only available for use while it is still being sold.

In the absence of legislation requiring content providers to ensure that their content will remain accessible to end users even after hardware upgrades or routine replacement of failed computer components, the only option available to users who wish to ensure that they retain access to content which they have purchased will be to use circumvention tools. While circumvention tools are by no means an ideal solution for end users to defend their rights against digital rights management, they are, to date, the only available option for end users who wish to protect their access to Internet-delivered content over the long term.

Failure to allow end users the legal right to protect their content against loss due to the short lifespan of computers will have profoundly negative implications for the preservation of a record of Canadian culture for future generations and on Canada's ability to maintain its position in the global marketplace. Much of the record of Canada's culture has been preserved by private individuals who keep and pass through the generations cultural items, such as books. If the digitally-delivered books of tomorrow remain accessible only for, on average, 1.5 years, Canadians will find themselves unable to pass key components of our culture down to their children and as such, Canadian culture will suffer.

Similarly, with an increasing number of technical publications being distributed only in (Internet-delivered) ebook form, it is vitally important that the educators, students, and professionals who use this information retain the right to use whatever circumvention tools are necessary to preserve the right to access this information over the long term. Failure to ensure this right could seriously hamper the Canadian economy--in the long term--by preventing the distribution and storage of knowledge necessary for professionals and educators to do their jobs to the level of effectiveness required for Canada to maintain its status in the global marketplace.

Given that circumvention technologies must be used to exercise legally protected end-user rights, the unconditional outlaw of the circumvention tools necessary to exercise these rights would constitute the effective revocation of fair dealing and other associated end user rights for digital content. If the Government of Canada wishes to repeal fair dealing rights, at minimum such an action should be performed by specific legislation to repeal fair use rather than by the back-door method of outlawing the tools which have become necessary to exercise fair dealing rights over a rapidly increasing expanse of copyrighted content.

A potential compromise between the demands of content providers that all circumvention tools be outlawed and the needs of society to retain the right to store and use copyrighted information over the long term would be to treat circumvention tools in the same way other potentially dangerous technologies (such as cars, bolt cutters, and firearms) are treated. Instead of outlawing circumvention technologies completely, a much more balanced approach would outlaw the use of circumvention tools for illegal purposes, in much the same way that, while the simple possession of a car is legal, the use of a car as a weapon is a crime.

At its inception, copyright was viewed as a balance between the needs of content providers to be paid for their works and the freedom of the public to benefit from such works. As copyright legislation has evolved over the past few decades, the balance has tilted in favor of content providers and against the public. The balance has already been tilted too far in the favor of content providers. While this balance must be restored, at some point in the future, in part through legislation to ensure that fair dealing remains relevant and that long-term data storage remains effectively legal, at this juncture, the Government of Canada should not take any steps which will irrecoverably tilt the copyright balance further away from society and towards content providers.

Coridon Henshaw
(Address removed)

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