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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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.
Submission from Jean-François Martineau received on September 15, 2001 via e-mail
Subject: Copyright Act Consultation
Copyright protection and technological measures.
As Robert N. Bellah et al point out in The Good Society, framing a social issue in terms of individual rights hinders fruitful dialogue about common conceptions of the public good and what kind of society we want to live in.
Is the system imposed from the top down by a few rightsholders onto the "outlaw" masses, without regard for their needs and existing arrangements, or did the system grow out of an understanding and codification of the kinds of "informal" arrangements that the people on the ground are making and using?
Intellectual Property and the Good Society A Structural, Outcome-oriented Approach by Jon "Hannibal" Stokes
The following is in response to Section 4.2 , titled Legal Protection Of Technological Measures of the Consultation Paper On Digital Copyright Issues. The undersigned come from teaching, networking technologies and engineering backgrounds. All are Internet users. Their comments refer to Question 2, relative to that section :
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?
The proper business of political institutions is committing the power and resources of the state to the common good. Copyrights serve this end in to ways : they ensure recognition of authorship, and the right to remuneration, which is justice; and this further encourages an abundant and diverse cultural (including scientific and technological) production.
Diverse technological means of blocking or limiting access to copyrighted documents would seem to pursue the same objective, and doubtless that is part of the rationale of some jurisdictions prohibiting their bypassing. We feel that this is an approach better suited to the protection of private space, such as breaking and entering prohibitions, and inappropriate to documents that are by their very nature cultural and social, and of interest to the commonwealth.
It would seem extreme, even foolhardy to make a crime, under the Copyright Act, of simply opening a protected document without the producer's permission, indeed of possessing the means to do so. And there seems no sensible way of prohibiting the creation and distributing of such tools, as long as there are legitimate uses for them. Such a broad prohibition would in effect transfer to private businesses immense powers over the circulation of all sorts of artistic, literary, political, scientific and technological information, much of which would be of common interest. Common sense makes it obvious that the Departments cannot enact regulations that would cover all legitimate occasions for circumventing technological barriers to copyrighted information. But by the same token, it would hardly be wise to give legal sanction to all protection devices when we cannot know in advance what they will be, or to what ends they will be applied. Do we really mean, as a society, to make access to numerical information mo re difficult and exclusive than is the case with books, and paper journals and periodicals? As we grow into a digital culture, this would appear as a dereliction of political responsibility, in the sense we first alluded to.
We also share the concerns of those stakeholders who were concerned that bare treaty implementation involved no consideration of the needs of institutions that use copyright materials consistent with other important public policy objectives (e.g., educational institutions, libraries, museums, archives, etc.). as stated in Section 2.3. These and others need a responsive and responsible flexibility in their access to relevant documents in order to pursue socially valuable goals. The costs to the Canadian educational systems in particular would soar, if means of closing off access to documents were unreservedly protected by law. All teaching and research communities must be able to share information in fair and reasonable ways to do their job in an acceptable manner.
It would seem that certain stakeholders would use the Act as a means to avoid putting their devices to the test of the judicial process, and that of the public's common sense. Is it the role of government to, in effect push in favor of proliferating blocking devices, creating a most profitable market for such, when they are not part of the copyrighted material, and are not geared to a fair and socially acceptable access to them ? Would it not be wiser in the long run to encourage other and more flexible avenues for the resolution of the conflicts involved ? This is not the time to involve our government in a technological war where the matter of rights is far from clear. Indeed, a case could be made in favor of legislation prohibiting the indiscriminate or socially noxious locking up of digital information. Possibly, that also would be premature. Let us simply express our sympathy with some of the views expressed Section 4.2 of the Document :
1-… legal provisions protecting technological protection measures extend beyond copyright to include restrictions on access and on the manufacture and distribution of circumvention devices. In other words, by providing legal recognition of the technological measures, the traditional boundaries of copyright law would be extended to include new layers of protection. There is concern that the Copyright Act may not be the proper instrument for protection measures that, prima facie, are extraneous to copyright principles.
2- The departments (…) must consider these concerns within the framework of Canadian copyright law, where certain uses of works and limitations on copyright protection are recognized as serving legitimate and important public policy objectives. Such limitations are evidenced by the finite term of copyright protection, the fair dealing provisions and the exception provisions. These elements of our copyright law have been the outcome of extensive debate, consultation, jurisprudence and legal obligation, both domestically and internationally. Any attempt to affect that balance may require a reconsideration of the current extent of the exceptions provisions.
Finally, we recommend that the Departments pursue the more prudent approach :
The most basic form of prohibition would be to restrict specific acts. The Act would specifically prohibit the circumvention, for infringing purposes, of technological protection measures , where such measures have been adopted, inter alia, to restrict acts not permitted by the Act. In certain cases with commercial motivations, where the scale of the circumvention has consequences for the copyright sectors as a whole, there should be appropriate criminal sanctions.
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