ARCHIVED — William G. McGrath

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 William G. McGrath received on September 15, 2001 via e-mail

Subject: Consultation Paper on Digital Copyright Issues

(Address removed)

September 15, 2001
Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street
5th Floor West
Ottawa, Ontario, K1A 0H5 Canada
Industry Canada
Department of Canadian Heritage
Intellectual Property Policy Directorate
Other concerned agencies of the Canadian Government:
Dear Sir or Madam:

I am writing to you today to express my most serious, personal concerns on the subject of intellectual property as addressed by the Consultation Paper on Digital Copyright Issues (CPCDI).

The ideas suggested in this paper seek to imitate the Digital Millennium Copyright Act of the United States, a law which is proving to be mistaken in its conceptualization, its implementation and its execution. Simply put, the CPCDI gives a disproportionate amount of power and control of information to publishers and their agents at the expense of the rights of individuals and consumers.

Let me be clear. I am not championing the interests of crackers, black-marketeers, or teenagers who want to download their music without paying for it. Moreover, I see the need for government intervention, in the form of law, in cyberspace. (Privacy concerns are one area where such action will be most welcome, in my opinion.) Rather, I am writing as a mature, tax-paying, concerned citizen. I am also a member of the free software community and member of a Linux user group. The proposed legislation will significantly impair my ability to utilize information technology in both these capacities.

On this copyright issue, I wish to draw to your attention to some of the problems with the basic concept as it has been implemented in the United States. I see no reason why Canada should make the same mistakes.

Firstly, the DCMA is already under legal challenge in the U.S. court system. Secondly, the DCMA has negatively impacted scientists' and computer security researchers' ability to travel and express themselves both at home and around the world for fear of retaliatory prosecution by the United States government. Thirdly, the DCMA has resulted in the arrest of a Russian programmer who travelled to the United States. Make no mistake about it, the ideas expressed in the CPCDI are just as draconian and wide ranging and serve the interests of few, other than, the mainly American, corporate copyright interests. Freedom should not have a price tag.

Let me be specific. The measures suggested in the CPCDI not only violate the basic, general principles expressed in and guaranteed by the UN Universal Declaration of Human Rights, but also the Canadian Charter of Rights and Freedoms guarantee of freedom of speech in multiple ways. Simply, it seeks to outlaw lawful exercises of this freedom such as fair use, reverse engineering, computer security research and quite probably many others. In this I believe the Canadian government is being played as a pawn in a much larger copyright centred scheme.

Among the more objectionable proposals of the CPCDI are those which would change the Canadian Copyright Act in such a way as to outlaw, with few exceptions, all tools, software or otherwise, which permit the bypassing of copy prevention schemes. Many people have legitimate reasons to use such tools, and such a ban is therefore, a violation of their right to freedom of speech, as defined under the Canadian Charter of Rights and Freedoms, as well as, the UN Universal Declaration of Human Rights.

I therefore request that you order the relevant sections of the CPCDI to be rewritten such that fair use, reverse engineering, computer security research and other legitimate uses of such tools can be actioned without legal consequence, or fear of legal consequence, in Canada.

To this end I shall address six topics which I feel are affected by the CPCDI and its related issues. These are:

1. Copyright.
2. Suggestions regarding definitions of different markets.
3. Suggestions regarding grey-market freedoms.
4. Economics and patterns of consumption.
5. Open Source software and the freedom to reverse engineer.
6. Copyright and the public interest.

1. Copyright

From the beginning, let me state that I am generally in support of the principles of copyright and intellectual property. It is clear that content creators require protection from uncompensated exploitation. I believe this is the original intention of copyright law, and clearly, content creators should be secured in their ability to benefit financially from their work and have it protected from unauthorized reproduction.

In the previous industrial era, a clear distinction was possible between consumers and manufacturers. The copyright interests of content creators were synonymous with those of manufacturers and publishers because information was purely a physical commodity. This group exercised exclusive, industry-wide control over the methods of content reproduction.

In the modern information era, the old distinction still applies, but new technologies allow consumers to produce and reproduce information content - both copyrighted and uncopyrighted. This creates a new grey' area where consumers participate in the legitimate fabrication of content, both copyrighted and uncopyrighted, such as photos, videos, CDs, books, etc.

It is important to recognize the significance of this empowerment to the new economy. Simply put, the ability to reproduce content is central to the information revolution. Just as the Gutenberg revolution, centuries ago, empowered the literate people of Europe, so today, the information revolution empowers all kinds of information consumers.

This modern revolution requires the re-purposing and updating of copyright legislation. Old concepts simply do not fit modern capabilities. Nevertheless, it is important to preserve the original intentions of copyright law. However, we should be very wary of trying to retro-fit new technologies to old business models. The new technology makes new methods of information production and distribution possible. It is therefore, necessary for manufacturers to adapt or face extinction. For example, photocopiers have replaced carbon paper. We should be very wary of trying to restrict new technologies in order to prop up old methods of business. Such an approach would retard the development of the information economy and new forms of business.

Rather, the approach I advocate is to clearly define the new technologies and markets, and then adapt existing legislation accordingly. For example, we should clearly define what we mean by black-market activity and make it illegal.

Secondly, we should explicitly define traditional, legitimate white-market activity such as author/publisher relationships, musician/recording company relationships, and so on. We should also take care to define the secondary, after- market rights of content producers to enter into additional relationships with additional commercial interests. For example, a musician, in addition to producing a CD, may also wish to sell his music on-line, or an author may wish to publish his book in paperback or downloadable form with another company. We should not allow traditional relationships to prevent new market relationships from developing.

Thirdly, we should define the new information economy capabilities of consumers as a grey-market, in which they can cooperate with content creators to fabricate copies of a work for purposes of limited, personal consumption. It should be treated as distinct from black-market and traditional, white-market manufacturing. Such definitions should make a point of not restricting consumers freedom of speech or patterns of personal usage. The purpose of copyright law is to ensure that content creators profit from their endeavours rather than to guarantee old style manufacturing and industry profitability or to limit patterns of personal consumption. Still it appears that certain vested interests are prioritizing their profitability over and above the interests of content creators. This deception should not be permitted.

Simply put, we have to distinguish profitability from the theft of intellectual property. Content creators are not middlemen. Rather they are often under contract to publishers and record companies and we hear little from large numbers of content creators one way or another on this issue. This is unfortunate, because copyright issues concern them the most. It is important to ensure that content creators and copyright holders continue to receive compensation for their work. However, this should not be construed as an industry-wide guarantee of profitability in the face of technological change. If anything, it should drag the industrial era, kicking and screaming, into the new information era.

In one sense, new technology has created a conflict between old economy interests and newer information economy interests, especially those of consumers. Both are business interests and both seek to benefit content creators and consumers. But, industrial era thinking seeks to retro-fit emerging technologies to existing structures of economic power and control rather than evolve or allow new forms of business to emerge. This is nothing less than the fear of change and a reaction against modernity that seeks to disempower consumers and indirectly exercise censorship over the availability of, and access to, ideas and products.

We should be very careful to preserve consumers access to information independent of commercial fees, regulations and copy protection schemes such as encryption. It is especially important to address the manner and extent to which vested interests intend to adapt new technology to old copyright relationships.

For example, one suggestion, by old economy interests, has been to redesign new hardware such that it lacks record/copy/and reproduction capabilities. Tape recorders, home video cameras, VCRs, CDS, DVDs, floppy disks, photocopiers, CD burners and so on will all be redesigned. Legitimate, personal, and non-commercial copying of photos, movies (home, amateur, educational), data, brochures, web pages, email, books, backups of software, and time-shifting of TV programs using a VCR, will all be prevented in this vision of the future. It is important to recognize that all information should not be treated as copyrighted, nor should copyright control be extended to hardware design. Yet this seems to be the intent of the pro-encryption forces.

Other types of business models should be encouraged to develop and flourish. For example, the open source software operating system, Linux utilizes a different business model than its competitors. Instead of leasing programs, or licensing seats, or depending upon a upgrade cycle, it uses a Value-Added-Retailer Customer-Satisfaction business model. The software itself, although copyrighted, is non-commercial software. Manufacturers make their profits not from the software, but from the sale of training, support, tutorials, documentation and packaged media.

Although Linux is copyrighted software, it can be freely copied and distributed to others, as long as they observe the terms of the original licence(s). It is quite possible that some new encryption schemes would seek to prevent this sort of distribution, even though it is specifically intended and permitted by the holders of the copyright. Whatever new kinds of legislation are enacted, they should be equally fair to all copyright holders.

2. Suggestions regarding definitions of different markets.

As I've already mentioned, I believe that there are three copyright markets. Firstly there is the traditional white-market. In this, regular media - tapes, books, CDs and so on are conceived by content creators, then fabricated and sold to consumers by large or small corporations. This should also be regarded as including new methods of distribution which allow consumers to download content over the internet and pay for it on-line by credit card. This market can be defined both in terms of large-scale reproduction and as a for-profit activity. Note however, that, in its online version, it requires the participation of the consumer to fabricate the physical copy of the work.

Secondly, there is the black-market. This market engages in the illegal, creator uncompensated, large-scale reproduction of copyrighted works for commercial purposes. One example of this is Napster, and similar web-sites, that allowed uncompensated duplication of CDs. In my opinion, this amounts to theft from content creators.

Finally, the grey-market can be defined as the small, limited-scale copying of a copyrighted work for personal use by the legal owner of an original copy. For example, a CD owner may wish to make a copy of a CD for use in their car or their spouse's car, or at the cottage. It seems to me that making a copy for backup purposes is also a legitimate endeavour - as is the making a compilation CD of personal favourites. This market can be defined as the small-scale, non-profit, copying of works for personal use. There are also other forms of copying which could be defined as belonging to this category. Such examples, might include archival copying, public or private library collection copying, or copying for educational purposes.

Many of these freedoms are currently enjoyed, and it is important to try and preserve them in the face of new legislation. Realistically, it is not possible outlaw small scale copying and then enforce it. The costs of prosecuting tens of thousands of teenagers who downloaded music from Napster or its future equivalent would be astronomical. I believe that it makes more sense to go after agencies who facilitate illegal copyright evasion. By properly defining small-scale, personal copying, and distinguishing it from illegal, large-scale, for-profit, law- breaking, we clearly differentiate the legal from the illegal and enable realistic law enforcement. This would both preserve freedom of speech and enable us to properly protect copyright. The important thing is that such copying be allowed and that no copy protection schemes be permitted to prevent it.

3. Suggestions regarding grey-market freedoms.

To preserve these grey-market freedoms, I suggest that four issues be considered. Firstly, to what extent should an owner be allowed to backup his CDs, books, video, tapes, software etc? One way of addressing this is to specify the maximum number of copies that are permitted. This will clearly separate the personal from for-profit black-market activities. In this regard, I recommend a maximum figure of 10-12 copies for personal use. This may seem excessive, but I cannot conceive of a situation where this figure would need to be exceeded. Thus, it clearly would separate the legal from the illegal.

Secondly, I would recommend preserving the right to make extra copies of a work for personal use in other locations or times. For example, extra copies for the cottage, the car and so on should be permitted. Were this outlawed, it would encourage the breaking of the law and diminish its value in consumers eyes. Moreover, it would drive some consumers into the black-market. If anything we want to reduce the opportunities for illegal, black- market activities. Naturally, these copies would be part of the 10-12 maximum figure.

Thirdly, I believe we should recognize that consumers often loan their property to one another and copyrighted works are no different in this regard. I believe we have to continue to allow this and should probably extend it to cover a small number of copies, say one or two, in order to prevent larger scale, illegal copying and distribution among groups of friends, such as a high school class. The trick here is to limit the number of loanable copies to a very low number such as one or two. Of course, outright gifts of copies should be prohibited.

Finally, I believe we have to allow copying and recombining of works into unique compilations and collections for personal use. This is simply a different manner of consumption.

4. Economics and patterns of consumption.

It will be claimed that grey-area copying represents and enormous loss of profits. This is largely a myth. It is simply the fact that consumption patterns of copyrighted works are constrained by time and money. For example, with Napster and its imitators, all the teenagers who downloaded music via the internet would never be able to afford original copies of all those works. They simply lack sufficient funds to purchase them at their market price. Hence, there is no loss of profit on a sale that could not take place. In my estimation, the average consumer's monthly information acquisition budget does not exceed $100.00. Similarly, consumers are limited in the amount of time they have to use copyrighted works such as CDS, books, videos etc. This amounts to no more than 50 hours per week once you subtract time for sleep, work, school, and so on. It is rather pointless to copy more works that you have time to read, or listen to or otherwise use. Taken together, these two constraints restrict the loss of sales depending upon price and time available and cannot be exceeded. However, I suspect that, were the price for a given CD lowered - by legal online downloading - the total consumption and acquisition of units would increase. Hence, it is inaccurate to claim that every copy is a lost sale. Rather, such claims will be exaggerated in order to try and justify excessive measures designed to deal with such problems.

5. Open Source software and the freedom to reverse-engineer.

Regardless of the final form of copyright solutions, it is important to ask whether or not it will restrict independent parties ability to reverse-engineer existing products. Reverse- engineering is a fact of life in industry, and the reason why so many products fulfil identically similar functions. One product is designed to imitate another.

This is especially true with Open Source development. Linux, and the GPL are an innovative example of the creative use of copyright law to create a complete, alternative operating system. However, the ability to do so depends completely upon the freedom to reverse-engineer existing products and adapt them to new uses and efforts.

In the history of Linux, many, many manufacturers did not, and still do not, support the Linux operating system. It was up to individual programmers to write their own drivers and create their own support for these products. Gradually, this support came to be shared around the globe despite manufacturer's efforts.

Were programs restricted in the machines that they could run on, or machines restricted in the programs they would run, this kind of international development could not occur. For example, one vision of future hardware design involves tying a particular machine to a particular postal code and country. Programs, DVDs, CDS and tapes have to be manufactured specifically for machines in that area. Moreover, any attempt to circumvent this kind of security and encryption would then be considered illegal in this view and prosecuted accordingly.

This is one example of encryption-based attempts to secure copyrighted content that is excessive and repressive and prevents legitimate research, development and use from taking place. Only legal limitations upon the use of encryption, and, more importantly, legal guarantees concerning users and owners freedom, will forestall such constraints.

Taking this further, as the owners of BSD, Beos, or Aethos operating systems might, we can see how such strategies could be used as part of a strategy to prop up dominant monopolies. Without drivers, or the ability to legally reverse-engineer a product and write their own, consumers will be effectively prevented from developing or using alternative operating systems and other products. In this sense, it deprives the market of some alternative products and, users of alternative systems, and of access to certain products. As well, if access to recording technology of various kinds, video, audio, etc., is restricted, then the market will be deprived of certain kinds of content. Indeed such restriction also amounts to a kind of censorship since it attempts to limit what an owner may, or may not do, with his property.

It is understandable that industrialists believe that such encryption based strategies will deter black-market activity. But if anyone has the means and resources to crack and circumvent security it is the black-market - not the ordinary user. Compared to independent technicians, who merely want to use a different operating system, the ability of the black-market to circumvent most, if not all, protection strategies, is well proven. Moreover, once a strategy is cracked by one gang, the method will be shared with others. So let us not underestimate the criminal element. Such approaches to the problem will not work in the long term. They will only end up hurting the consumer - not the criminal. Indeed, criminal interests may even welcome such actions as a form of black-market enrichment.'

Please do not misunderstand me. I do not in any way, support the interests of the black-market. I am merely stating facts. Whatever form our new legislation takes, we ought not to throw the baby out with the bath-water. We want to stop crime, not deprive consumers of their freedom of choice or freedom of thought. We have to be very careful to do one without doing the other.

6. Copyright and the public interest.

A submission on the subject of copyright would not be complete unless it broached the subject of the public interest. Specifically, I will interpret that to mean the state of freedom in Canada for ultimately, the two are clearly related.

It is all very well for Canada to consider new copyright legislation. Let us not forget the effect of such legislation upon the freedoms currently enjoyed by the ordinary Canadian consumer as well as those of us who are not so ordinary. If we restrict the copying of information, what happens to freedom of speech in this country? We take access to ideas for granted. Others do not. Let us never forget that in the former Soviet Union, every photocopier came equipped with its own armed guard. We should beware of imitating that - even symbolically.

Firstly, we should recognize the purpose of copyright law. The protection of our innovators and our desire to let them profit from their ideas and their efforts have to be paramount in our minds. Secondly, we should prevent them from being exploited in other ways unconducive to this. Finally, we need to ensure the exclusivity of their ideas and that credit is received where credit is due.

Next we need to consider the impact such laws will have upon our culture. We do not want to prevent or censor non-orthodox ideas from being expressed or alternative technology from being developed. We do not wish to prevent the use of equipment for invention, investigation, discovery, or experimentation simply because its inventor or manufacturer does not authorize, permit, or allow such use. It is not the place of manufacturers or inventors or content creators to make or exercise such judgements.

We do not wish to see a climate of fear created with respect the discussion of ideas related to encryption or technology that uses or circumvents encryption. Many people, scientists, inventors, programmers, theorists, journalists, etc. have a legitimate interest in this subject. Their right to discuss it with others should not be affected by copyright law. There is a significant difference between discussing a subject and committing a crime. Such individuals ought to enjoy freedom of speech the same as other members of society.

Yet it is precisely this climate of fear that the Digital Millennium Copyright Act (DMCA) has created south of the border. A Russian programmer, while breaking no laws in his own country, and against the wishes of Adobe, the copyright owners, was charged, when he visited the USA, for breaking their encryption laws. It has created quite an uproar in high tech circles. I do not believe we wish to repeat this mistake in Canada.

We do not wish to see encryption based upon copyright law used in any way that restricts the usage of a medium or prevents competition. Once a product is sold, the owner ought to be free to do whatever he wishes with his property and the ideas it embodies.

In general, free access to ideas and information is to be preferred over all forms of restriction. While information may be copyrighted, provision should be made for limited public access to the ideas it contains. Quotation, paraphrasing, library and internet access are all such methods of contemporary access to ideas other than outright purchase or acquisition. Similar methods ought to be considered in the high tech arena. Open Source software is certainly one step in this direction.

There is no doubt that Canadian culture is bettered by such availability. It is simply a matter of recognizing that the public interest cannot be defined as the aggregate of individual interests. Rather, over and above such a total, we must also consider the common good, in which all share equally: both copyright owners and ordinary users.

Ultimately, it is this common good which permits the free, unrestricted exchange of ideas and thoughts. It is the common good that creates an environment, both economic and technical, that is conducive to research, development, innovation and progress. It is this common good which gives Canada its freedom and makes Canadian society the envy of most of the world. Let's not break that.

The DMCA is already an international controversy and embarrassment to the United States government. We do not need to repeat the same mistakes here in Canada. Please act at your earliest opportunity to preserve the freedom of speech that Canadians currently enjoy.

Yours sincerely,

William G. McGrath
(Address removed)