ARCHIVED — Martin François Foster

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 Martin François Foster received on September 15, 2001 via e-mail

Subject: Comment - Government of Canada Copyright Reform [Internet]

15 September 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
Fax: (613) 941-8151

Industry Canada and the Department of Canadian Heritage (herein 'departments') are seeking input from the Canadian public as part a reform process of the Copyright Act. My comments relating to this process are presented to the departments in this document.

Assumptions

The Consultation Paper on Digital Copyright Issues (CPDCI) establishes a set of core principles when considering the creation of a copyright framework that encourages the dissemination of new digital content on-line for and by Canadians. The core principles are re-iterated here in order to state the assumptions that I have made when considering these principles.

· The framework rules must promote Canadian values Historically, Canadian policies have sought to equally balance the rights and privileges accorded to individuals, and those accorded to society as a whole. It is assumed that a similar balance will be sought for matters relating to the digital environment.

· The framework rules should be clear and allow easy, transparent access and use It is assumed that even as technologies evolve, the goal of the Copyright Act remains to provide the legal framework within which individual creators and rights holders are entitled to recognition, control of, and payment for, the use of their works. A corollary of this goal is to ensure the existence of certain exceptions to the Act. Specifically, I am particularly concerned the exceptions granted for Fair Dealing (sections 29.1, 29.2), Computer Programs (30.6), and Persons with Perceptual Disabilities (32.[1]) in the digital environment.

· The proposals should promote a vibrant and competitive electronic commerce in Canada Any policy the government pursues should foster the conditions that will put Canadian players on a competitive footing with their counterparts abroad. The digital environment makes viable new business models that were until now believed to be financially unsustainable. It is assumed that the framework will not seek to, or have for effect to, stifle these new business models in order to artificially allow for the survival of older or established business models that could not otherwise cope with the possibilities of the digital environment.

· The framework needs to be cast in a global context In an environment where digital content seamlessly crosses national boundaries, the departments are faced with the challenge of developing copyright policies that are consistent with and promote international standards of protection, but that continue to validate Canadian priorities, choices and values. It is impractical to establish or recognize a single regime for copyright protection worldwide. Hence it is assumed that Canada will rely upon the comity of nations to recognize the general goal of copyright law but ultimately follow its sovereign Copyright Act when determining exceptions and remedies in matters of copyright, and not bow to the wishes or laws of other states when disagreements occur.

With my assumptions pertaining to the core principles of the Framework for Copyright Reform stated, I will proceed to respond to the questions raised by the departments' proposals.

Making Available

The distinction between exiting rights and the proposed "making available" rights are not sufficiently clear in my mind. I choose not to comment on this issue.

Legal Protection of Technological Measures

As a contracting party of the 1996 WIPO treaties, Canadian legislators are faced with seemingly contradictory instructions when complementing the implementation of article 11 of the WIPO Copyright Treaty (WCT), and article 18 of the WIPO Performances and Phonograms Treaty (WPPT). It is asked that remedies be provided against the circumvention of effective technological measures put in place by authors, performers and producers to control access to copyrighted works which are not authorized by these authors or permitted by law.

In other jurisdictions, particularly the United States by way of the Digital Millennium Copyright Act (DMCA), the meaning of "effective technological measures" has been interpreted as an attempt was made to control access to the copyrighted works by technological means. Hence a technology would not have to be technically effective in the sense of its capacity to withstand circumvention, but rather demonstrate that the technology's intent is to restrict access to the copyrighted works.

It is with the American interpretation in mind, and its effects, that I discussed the issues raised by the departments.

· Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over and access to copyright protected material, what factors suggest legislative intervention at this time?

· Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors should be considered determinative in deciding whether circumvention and/or related activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?

To answer these questions, propose that technological access control methods be viewed as a mechanism to deter and not prevent infringing uses of copyrighted works. There are three reasons for this.

1. It is reasonable to assume that regardless of the legal status of circumvention technologies, there will exist at least one party that has the means and motivation to publish and distribute such technologies. As with other forms of access control, such as cryptography, some parties will see it fit to develop stronger encryption mechanisms, while others will prefer to counter such advances by developing decryption mechanisms. By using technological access control to deter infringing use, the copyright holder increases the investment in time, effort, and knowledge required to circumvent these controls. In the digital environment, when one pays the stated fees for use of copyrighted materials, the payment is not only for the content, but for the associated service, reliability, and speed provided by this payment. Regardless of the type of content, whether it be a phonogram, a literary work, or a computer program.

2. The departments have properly recognized that here are legitimate uses for the circumvention of technological measures on control over and access to copyrighted material. Furthermore, circumvention measures cannot effectively determine in and of themselves which uses are infringing and which are not. Finally, when these measures are used by a copyright holder, there is no guarantee that they will honour requests for non-infringing uses of their material.

3. Infringement of copyright, whether in the digital environment or not, remains illegal. Copyright holders will continue to have available effective legal remedies against such infringements irregardless of the existence or use of technological means of access control to the holder's copyrighted works.

It would seem that the requirements set forth in the 1996 WIPO treaties are contradictory. Legally disallowing circumvention technologies effectively prevents, or severely restricts the attainment of, uses that are permitted by law.

I believe that, for the greater good of Canadian society, the use, distribution, and creation of circumvention technologies should not be restricted but rather explicitly allowed by legislation. This would reasonably guarantee access to copyrighted material for non-infringing uses, while allowing for the copyright holder to continue to utilize and develop deterrents to infringing uses.

Specifically, legislation enacted to allow the use of circumvention technologies would protect the following at-risk exceptions to the Copyright Act:

1. Fair Dealing. For example, an independent film critic may opt to use one of the many available tools which circumvent the Digital Video Disc (DVD) Content Scrambling System (CSS) to illustrate his or her criticisms of a movie released under this format by making available to the digital environment a short segment of this movie in an unscrambled format. Certain stakeholders could argue that since the critic's material is available in other formats, such as VHS tape, there should be no non-infringing need to circumvent the technological protection measures of a DVD. While this may be at least somewhat valid in the present, there is no guarantee that an unprotected medium will always be available. This bolsters the requirement for legislative intervention protecting circumvention technologies.

2. Computer Programs. The media on which computer programs are distributed is not invulnerable to environmental wear and tear. For this reason, the Copyright Act allows one who holds a license for a computer program to make one backup copy of this program. Should a computer program be distributed in a manner that implements access controls, a licensee must be allowed to circumvent these if the exception granted to computer programs is preserved. Similar logic applies to the preservation of the exception granted to Copying for Private Use.

3. Expiry of copyright. Works are stripped of their protection under copyright law and enter the Public Domain fifty years after the death of their authors. Present technological access control measures do not currently acknowledge the expiry of copyright protection, or remove themselves at the time of expiry. There is little indication that entry into the Public Domain was even considered in the design of these technologies. The continued use, existence, and development of circumvention technologies guarantees that it will be possible for protected works to be stripped of access controls, in order to enter the Public Domain at the time of copyright expiry.

4. Persons with Perceptual Disabilities. New access control technologies, such as the security measures implemented in Adobe Acrobat 5 (p.5) can prevent copyrighted material from being converted into a format suitable for persons with perceptual disabilities, as is currently allowed in section 32.[1] of the Act. While probably not designed with this intent in mind, access control technologies can effectively discriminate against persons with perceptual disabilities. Circumvention technologies bridge the gap between intent and effect of access control technologies, by facilitating the conversion of protected material into a form which is useable by persons with perceptual disabilities.

5. Academic freedoms. Legislation which prevents the development, use and distribution of circumvention technologies places severe and unprecedented restrictions on academic freedoms. Presently, anyone with an academic interest in a given technology is permitted to reverse engineer this technology to understand its workings, perhaps allowing the technology to be improved or made more robust in the long term. Should it become illegal to develop, use, and distribute circumvention technologies, presently existing academic freedoms outside the scope of copyright law will be restricted in practice by the threat of legal and financial remedies. Since the enactment of the DMCA in the US, there have been at least two cases where academic work in the field of circumvention technologies and cryptography has resulted in the threat or application of legal recourse on behalf of a copyright owner. In the first example, researchers who were openly invited to find weaknesses in access control technologies develo ped for the Secure Digital Music Initiative (SDMI), were cautioned by the Recording Industry Association of America (RIAA) and Verance Corporation that the public disclosure of their methods, analysis, and results could be grounds for action under the DMCA. In the second example, a Russian doctorate student was arrested and charged under the DMCA in the US following a presentation that he had made regarding the design and weaknesses of the access control mechanisms implemented by the Adobe Content Server for protecting content published in the Adobe eBook format, and the dissemination of a tool which circumvented this access control.

Copyright holders, as individuals, would benefit the most from prohibitions relating to the circumvention of technological access control methods, which supposedly increases revenues extracted from copyrighted works. Society benefits both from having as much material as possible made available in the digital environment, and as demonstrated above, by legislating the protection of the existing exceptions to the Copyright Act by allowing for the development, use and distribution of circumvention technologies. Again, deterrence is a sufficient goal of technological access control methods for copyright works, as it will always remain illegal to use these works in a manner not prescribed by the exceptions of the Act.

· If the government were to adopt provisions relating to technological measures, in which respects should such provisions be subject to exceptions of other limitations?

In the event that the government chooses to adopt provisions relating to the restriction of the development, use, and distribution of circumvention technologies, it is hoped that exceptions would be made for non-infringing intent and use as defined under the presently existing act.

· Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing technological measures?

When licenses for the use copyrighted works are sold in both the digital and non-digital environments, the privacy of the licensee must be ensured, perhaps by means of the Privacy Act. A worrisome example of where the application of technological measures prevents the anonymity of a purchaser in the non-digital environment from being transposed to the digital environment is Macrovision's SafeAudio, which is intended to prevent an audio CD from being played back or extracted to mp3 format for use on other players by a personal computer. The technology incorporates a means by which the purchaser can register with the rights holder on the Internet to download an mp3 copy of the tracks on the CD. While this might seem benign, the purchaser is forced to give up his or her anonymity in order to listen to the music which they have bought in a format other than that provided at the point of sale by the copyright holder. In such a context, the use of circumvention technologies would allow the purchaser/licensee to retain anonymity when opting to listen to the CD on a personal computer.

Legal Protection of Rights Management Information

Rights Management Information could play an important role in the making available of copyrighted works in the digital environment. Furthermore, the technologies therein could permit new business models to emerge in which consumers could have the option to purchase the rights to specific portions of a copyrighted work - something that is difficult and time consuming in the non-digital environment. It is also possible that Rights Management Information could facilitate the entry of new players in a film and music publishing environment which is dominated by oligopolies.

That being said, I have objections similar to those already voiced with respect to technological circumvention measures when considering articles 12(1)(i) of the WCT and 19(1)(i) of the WPPT. These state that it should be made illegal to "remove or alter any electronic rights management information without authority". Again, if the rights management information and technologies used to accomplish this impede the entry of copyrighted material into the Public Domain at the expiry of the protection accorded by copyright, or if these technologies impede non-infringing use of copyrighted material, the above WIPO condition should be excluded from the revised Copyright Act.

· What information should be protected under the Copyright Act? Given that information may cease to be accurate over time, should information relating to, for example, the owner of copyright and to terms and conditions of use be protected?

The departments correctly identify that rights management information may cease to be relevant or accurate over time. For the purposes of revenue generation from copyrighted works, I will assume that it is important for the copyright holder to have the information relating to ownership of copyright and to terms and conditions of use protected in the time immediately following the making available of this copyrighted work. It is probably less important for this information to be protected as the time of a copyrighted work's entry into the Public Domain approaches. I propose that the revised Copyright Act include a provision by which a multi partisan governmental oversight agency would be created to assess requests from the public to relax the protection of rights management information, and balance this request by the needs of the copyright holder, if applicable.

· Certain terms and conditions may not be legally valid in Canada if they are contrary to public policy. In light of this, what limitations should there be on the protection of such information? Is a provision required that specifies that the protection of such information does not imply its legal validity in Canada?

Public policy has a far reaching scope when compared to that of the Copyright Act. Canada's sovereign nature should be the limiting factor when considering the protection of such information. It would follow that a provision is required that specifies that the protection of such information does not imply its legal validity in Canada.

· Given the fact that some technologies serve a dual purpose, i.e., reflect rights management information and protect a work against infringement, how should provisions concerning rights management information take into account provisions regarding technological measures?

My position with respect to provisions regarding technological measures has already been clearly stated. The preservation of non-infringing exceptions is paramount, hence circumvention measures should be allowed to be developed, used and distributed to ensure this. In the specific cases where such measures have for effect the removal or disabling of rights management information, there should be a legal or moral requirement to restore at least the original rights management information to the copyrighted work once one has completed his or her non-infringing use of this work.

· If the Act were amended to protect rights management information, does the fact that some technologies may be used both to set out rights management information and protect a work against infringement mean that duplicate or overlapping sanctions could result in some cases?

If the Act were amended to protect rights management information, but not the component of this same technology which would deter a work from infringing uses, it should be understood that in such cases, protecting non-infringing uses of copyrighted works is a greater good than the protection of the rights management information. Hence the protection of rights management information would be waived in these cases; sanctions could not result. This would encourage copyright holders to use different or uncoupled technologies for the protection of rights management information and the deterrence of infringing uses.

· Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing rights management information?

Since the development of the technologies used to address rights management information are still in their infancy, especially when compared to technologies designed to deter or prevent infringing uses, I would place any associated privacy issues under the jurisdiction of the Privacy Act.

Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright

When considering my responses to questions in this section, please remember that I am presently gainfully employed, but not acting on behalf of, a major Canadian Internet Service Provider. Details are provided at the end of this document.

The departments mention two types of entities that are considered as Internet Service Providers (ISP): the private commercial entities and the publicly funded institutions that offer similar services. I wish to make note of another possible ISP - ad hoc wireless networks, which are comprised of otherwise unrelated individuals who make their wireless networks available a no cost to others, and with no implicit expectation of privacy, or quality of service. When considering the issue of resources available to ISPs for matters relating to copyright, the scope, revenues, and impact of any possibly infringing network must be understood and accounted for when assessing possible response time to such issues, or the application of penalties.

· Do the current provisions of the Copyright Act already adequately address ISP concerns?

The Copyright Act, as it presently stands, would benefit from clarification on several matters of importance to ISPs. Particularly with respect to the issues of caching and tariffs.

The departments properly understand that caches improve network efficiency, and are indiscriminant in the types of traffic which they copy - insofar as this traffic was previously requested by a customer of the ISP. It is appropriate to note that the very nature of content in the digital environment implies that this content will be copied at least a few times in order to make it useable.

Consider the use of an enhanced CD containing mp3 tracks with a personal computer (PC). In order to play the music contained in these tracks, the computer copies the tracks into its main memory, potentially leaving a copy in the CDrom drive's cache, decompresses the compressed data stored in the mp3 to obtain sufficient information to reproduce the intended sounds (another copy is created in this process) before being converted from a digital format to an analog format which the speakers use to create the sounds. Three extra copies temporarily existed within the PC in order to play one song. Yet these copies are in no way considered infringing as they are temporary, and necessary to the reproduction of the music from instructions stored in the digital environment.

Similarly, many elements of an ISPs network, including the caches, make copies of the data that is passed through them in order to fulfill an information delivery request placed by a customer. Here to, the copies are temporary and necessary to deliver Internet service to the customer. ISPs should be considered as intelligent common carriers for issues of tariff, i.e. they should be excluded.

· Some ISPs and rights holders have entered into agreement for dealing with infringing material. In what respects in this approach sufficient of insufficient? This approach is wholly insufficient, for it does not and cannot encompass all Canadian ISPs. Furthermore, this sort of agreement encourages agreements with rights holders with considerable assets as opposed to all rights holders, irrelevant of the number of assets under their control.

ISPs should feel free to enter agreements with whomever they choose - insofar as these agreements to not create a legal precedent for other ISPs to follow. If a national solution is to be devised, it must provide representation of all rights holders and all ISPs.

· What other intermediary functions that have not been discussed in this section, but that are nonetheless being carried out by ISPs, ought to be considered when developing a policy regarding ISP liability?

There are dangers with respect to due process in many notice and take-down systems. These will be discussed in my response to the next question below.

· To the extent that a notice and take-down system is being contemplated, how would such a system affect the framework in Canada for the collective management of copyright? What alternative proposals should be considered? Under what conditions would a compulsory licensing system be appropriate?

A notice and take-down system seems to have much merit in it's assumption of good faith on both the rights holder and the ISPs parts. However, two possible scenarios are worrisome within such a system.

1. Due process. A person accused with a crime in the non-digital environment is presumed innocent until proven guilty. This does not always happen in a notice and take-down system. For reasons of workload, fear of liability on the ISPs behalf, or both, notices served by rights holders can result in the presumption of guilt, with the imposition of penalties (suspension or cancellation of account) without validation of the rights holders proof of infringement. There are already unconfirmed reports of many such occurrences in the US via the notice and take-down provisions of the DMCA. Any Canadian implementation of the notice and take-down system must ensure that the presumption of innocence is carried over to the digital environment until proven otherwise - as would be the case for infringement with non-digital content delivery systems.

2. Zealous delivery of notices. While there is no indication that this is happening as of yet, it is conceivable that rights holders could hire online copyright enforcement firms such as NetPD to report and serve notice for any and all possible infringements, regardless of potential gain or relative severity, to ISPs. This could overwhelm smaller ISPs with an unfortunately higher rate of potential infringements due to the unpredictable behaviour of their customers. I propose that any notice and take down system encompass a limit on the maximum number of take-down investigations that an ISP should be liable for within a given period of time, and that this limit be set on a per-customer basis. Such a system would force the rights holder to pursue only the most significant infringements - a win/win scenario under which the ISPs level of effort for handling notice and take-downs is predictable, while stopping the greatest offenders of the rights holders.

· To the extent that issues surrounding the scope and application of the reproduction right are being examined in relation to Internet-based communications, are there reasons why this examination should be restricted to the question of ISP liability?

The examination should not be uniquely restricted to the question of ISP liability. If an ISP's customer is causing real and grave financial harm to a rights holder, it is hoped that the rights holder will seek recourse with the offender in question, and not the offender's ISP.

This concludes my submission to the departments request for input from the public in matters of the Copyright Act reform process.

Delivered by way of fax and e-mail to the departments on 15 September 2001.

//Signed//

Martin François Foster
(Address removed)

This document expresses opinions which are my own, are presented to the departments and other readers in good faith, and are not necessarily shared by my employer (Sprint Canada).