Hugh Redelmeier

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D. Hugh Redelmeier

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 D. Hugh Redelmeier received on September 15, 2001 via e-mail

Subject: 10 short essays about Copyright

This is my response to the Government of Canada's

"Consultation Papers on Internet Copyright Issues".

http://strategis.ic.gc.ca/SSG/rp01100e.html

I am not a lawyer. I am a consumer and producer of information, and a Canadian. I am very disturbed by the trends in "Intellectual Property" law.

I would hope that you read this paper. In case you don't, I wish to make one thing clear: anticircumvention and rights management information preservation legislation is unacceptable in a free and democratic society. US experience with the DMCA should make this crystal clear.

Analogies are suspect; metaphors are dangerous

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The term "Intellectual Property" biases the discussion. "Property" refers to things that can be owned and our intuitions about property are based on one particular attribute: ownership is exclusive.

As I see it, one cannot own information. Many people can possess the same information without dividing it.

Copyright deals with the right to make representations ("copies") of information. Copyright law essentially grants a circumscribed monopoly on the right of manufacturing a representation of the subject information. What is owned is this right, not the information itself.

What is owned is not "intellectual". Instead of "Intellectual property", we should consider using a term such as "information reproduction monopoly".

Once one realizes that we are dealing with monopoly power, a whole new set of concerns becomes highlighted. Monopoly power can easily be misused. It should be government policy to carefully limit the power of monopolists. One of the limitations would be to prevent monopoly power from being leveraged into domains that don't require monopolies. A government may legitimately choose to limit the kinds of licensing that a monopoly holder may demand.

Copyright law should serve citizens

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Much discussion of copyright law starts from an assumption of the producer/consumer relationship. I think that there is a step before this that must always be kept in mind. We are all citizens (of Canada, and by extension, the world). We must look to the interests of citizens, individually and collectively.

Too much of the discussion in the consultation paper is from the standpoint of "special interest groups": those whose interests are less diffuse than those of most citizens. The discussion needs to be rebalanced.

In a sense, copyright law starts from the base position of there being no right, and then proceeds to create rights. It becomes hard to see the intentional and proper absences of rights. A kind of figure/ground problem.

Broadly speaking, copyright law gave no rights for electronic copying. We are now "carving up the fatted calf". Have a mind that these are rights being taken away from citizens.

Consumers are generally voiceless

=================================

The focused interests are the entrenched information producers, aggregators, publishers, and marketers. The few consumer voices are educators and libraries, and they are naturally asking for only their own interests to be supported.

Also voiceless are the individual producers of information.

It is the government's responsibility to speak for the voiceless. Allowing "the private sector" to form a consensus (as the document appears to do) is in actual fact abdicating this responsibility.

An example. From the standpoint of the consumer, and from the standpoint of society as a whole, the reason to support copyright is to encourage the creation of information. If the information exists already, giving it extended copyright protection has no merit, but does have disadvantages. So if, for example, copyright terms are extended, the extension should only be for new information.

Disintermediation

=================

This word was all the rage a couple of years ago. But the ideas are real. It is important that government fiat not empower or entrench mediators. Of course some add value: let them prosper only by this added value.

This has a number of implications:

- Why should Sound Recording Makers have copyrights? If I understand correctly, their function creates no information. Of course they could enter contracts with the information creators to gain some ownership of a copyright.

- It is not obvious that existing copyrights should be extended to cover "ICT". Or that existing contracts with respect to copyright should be read to cover "ICT".

- Do magazine publishers, book publishers, record labels, etc. have rights with respect to the reproduction of old content in the new domain?

- Small producers of information may now be viable in ways that they were not before. Copyright law should be at least neutral in this regard. A ponderous legal mechanism or regime could wipe out what technology has enabled.

- Similarly, collaborative communities may produce information using these new technologies. Copyright law should not be a barrier or threat.

This section could have been titled "Small producers are generally voiceless".

Just what is copying?

=====================

Some copyright holders argue that the previous copyright laws already cover ICT:

The Copyright Act serves to recognize, promote and protect intellectual expression, as well as encourage and enable access to and dissemination of such expression. It achieves this by granting various rights and exceptions, including the right to reproduce works, the right to communicate works to the public by telecommunication, and the right to authorize such acts. Prima facie, the communication and reproduction of copyrighted works are among the most prevalent activities over networks. It follows that the Copyright Act already applies to such Internet transactions.

Some copyright owners even claim that copyright covers making copies in RAM, necessary to use information on a computer. Here is a quote from Litman (about US law, but likely applicable to Canada):

Thus constrained, the claim that some people made was this: the copyright statute gives the copyright owner the exclusive right to reproduce protected works in "copies," subject only to the exceptions enumerated in the statute. (I mentioned some of those earlier: these are privileges for libraries, and broadcasters and record companies and the like to make limited numbers of copies in particular situations.) A computer works by reproducing things in its volatile Random Access Memory, and anything that exists in volatile memory could, at least in theory, be saved to disk (the argument continued), so each appearance of any portion of a work in any computer's random access memory is a reproduction in a copy within the meaning of the statute. That would mean -- since there are no enumerated exceptions for Internet-related uses -- that the copyright owner has the legal right to control, enjoin, or collect money for every single appearance of a work in the memory of any computer anywhere. Moreover, since the reproduction right is the "fundamental" copyright right (after all, that's why we call it copyright), any diminution in this important fundamental right would impede the progress of science and the useful arts.

This is clearly nonsense. One could similarly claim that whenever a book is exposed to light, a copy or more accurately, millions of copies, are being made by the reflected light. The light that we read by!

In the past, the question "what is a copy?" had an answer that was clear. We're entering new territory, and care must be made in legislating the answer.

The use of any representation of information involves transcribing that information. So implicitly, owners of a copy must have transcription rights of some kind. The circumscription of these rights must not be done solely to the benefit of one side.

The Rule of Law

===============

One of the least celebrated advantages that we have as Canadians is that we live in a society that lives, by and large, by the Rule of Law. This is a delicate state, and we must do all we can to preserve it.

Laws must be fair, be seen to be fair, and be fairly applied.

Otherwise, we have tyranny (power forcing citizens to do what they don't accept) or lawlessness (citizens evading laws they perceive as unjust).

Currently, most citizens don't understand copyright law. A deep problem is that they don't have an intuitive understanding of "intellectual property". They understand that the marginal cost of creating a copy is much less than they are asked to pay. They think that they are buying the physical medium on which the information is represented. We must take a two pronged approach to this problem:

1. We must educate citizens in the ideas of information monopolies and their benefits (encouraging and enabling the creation and distribution of information).

2. We must modify copyright law to reflect what citizens can reasonably accept.

A second problem is that copyright law is too complicated for most citizens to understand. A goal of copyright reform must be to simplify and humanize the law.

It is all too easy for special interests to push for the tyrannical solutions:

- "anticircumvention" and "right management information" regulation are intended to force compliance, not to encourage it.

- the levy on blank recording material, irrespective of the end use, forces compliance, even when seen as illegitimate

I would claim both these examples are steps backwards in the "Rule of Law".

Anecdote: when newspaper boxes used the "honour system", I always paid the correct amount for a newspaper. Now that they only open when you place money in them, I happily accept a paper for less if the machine mistakenly lets me.

Anecdote: I legally own copies of several computer programs that will not run on my machines. With "anticircumvention" legislation, I would not be allowed to fix these problems.

Anecdote: the vast majority of CDs that I burn contain my own data or freely copyable data ("copylefted"). Yet I pay a levy on the CDs, without my consent, for music that I am presumed to be copying onto them. You can bet that I'm doing personal copying of music now, whereas I did not do so before the levy.

Anecdote: I know of several people who don't mind "illegally" copying movies and music because of the behaviour of the relevant industries with respect to the DMCA. Their view of copyright changed from "Rule of Law" to Tyranny/Lawlessness mode.

Anecdote: the US DMCA anticircumvention laws are being applied arbitrarily. I know of few applications, even though there must be many violations. But when authorities chose to, they apply very harsh consequences (for example, Sklyarov case -- the consequences start before conviction!; see http://www.eff.org/IP/DMCA/US_v_Sklyarov/).

Of course we must make it easy for citizens to respect copyright. We must not impose it with heavy hands.

Hints of biases in the discussion paper

=======================================

These struck me in reading the document. They are not, in themselves, serious. But they indicate a lack of breadth in the thinking.

"digitized information" (1): some information is born digital, so is not digitized. The correct term would be "digital information" or "information in a digital form". Perhaps this term was used because so many of the incumbent copyright holders have pre-digital holdings.

Much of the document (eg. 1) talks of encouraging production of information. Surely half the point is encouraging beneficial use of information.

The document talks of "sale" of information, not "purchase" (1). And "dissemination", not "acquisition".

"unauthorized copying and distribution" (1) makes no distinction between authorized by copyright law and authorized by copyright holder. Holders seem to wish to construe many uses as unauthorized copying.

"large scale inventories" (1) -- ICT eliminates the need for these, if they are of replicated physical copies. I hope that the savings will be passed along to consumers. If, on the other hand, you mean a large catalogue, remember that extension to new territory is not an intrinsic right.

"stakeholder" (in 2.3) does not seem to include the large number of unorganized consumers (or unorganized producers).

"sound recording makers" (4.1.2). I'm not sure what these are. I don't think that they create information, so they should not have a special recognition in copyright law.

On the other hand, there are some very important questions explicitly raised in the document.

What is unauthorized copying?

=============================

The document uses the term "unauthorized copying". Authorized by whom? Some of this is a matter for contract law, not legislation. Some, clearly, is based on copyright law. Keeping the two separate is important.

Once a copy is made, the owner of that copy should have some intrinsic rights. It is not in the interest of society to allow arbitrary circumscription through copyright law. As I understand it, this fight was fought over book publishing in the distant past.

What does ownership of a copy mean?

===================================

When I own a thing, I expect it not to act against my interests. In the past, few things could be manufactured that would work intentionally against their owners interest. Side effects did happen -- cars, guns, cigarettes, and steaks all killed their owners.

Now it is possible to build things that work against the interests of owners. Copy protection is a case in point. DVDs are rich in examples:

- The region system for DVDs seems to be hard to justify. If I own the copy, why can I not play it? The information producers forced the player manufacturers to implement a scheme not in the consumers interest

- The encryption of DVDs prevents me from viewing DVDs. Why? The computer system I use (LINUX) hasn't a player approved by the DVD monopoly. The US DMCA and the EC equivalent have made criminals of those who made a player for LINUX.

- I own a copy of the Encyclopaedia Britannica, a fine resource.

But I cannot use it on LINUX, and if I try, I would be "circumventing". This is currently legal in Canada, but the paper contemplates outlawing it.

The recent amendments to the copyright act "gave" me the right to do personal copying of music. The quid pro quo was that I'd pay a levy on recording media (not that I consented). Copy protection being phased in by CD publishers will unilaterally take away what the law gave me. If anything, those copy protection schemes should be against the law!

Why were we given the right to personal copying? Because the public had already taken that right. See "Rule of Law".

Jon Johansen is apparently being charged with breaking into his own copy!

http://www.eff.org/Intellectual_property/Video/DeCSS_prosecutions/Johansen_DeCSS_case/20000125_eff_johansen_case_pressrel.html

According to several international legal experts contacted by EFF, the industry is relying on untested legal theory in its case against Johansen. With regard to the industry's use of Norwegian Criminal Code sect 145(2), a provision making it illegal to "break a security arrangement" to access data, experts agree that it is not clear whether it can apply to a situation where someone breaks a security system to access material on a device of which that person is the owner. The second charge of contributory copyright infringement, as likely to be argued in this case, has also not been before the Norwegian courts.

Another whole class of questionable behaviour is of devices that spy on their owner and report back to their manufacturer. This has been observed in several computer programs. It is likely that the DMCA-style anti-circumvention legislation prevents users dealing with these problems. With rights (copyrights) should come responsibilities. This kind of behaviour could be discouraged, for example, by making it void copyrights.

The evils of Anti-Circumvention legislation

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[I would also include preservation of rights management information as similarly evil. I wonder if "moral rights" can give sufficient and justifiable protection for some aspects of rights management.]

If I own a representation (copy) of information, I should be able to do anything with it except disseminate it to others. Any further restrictions are not the business of legislation. In fact, I think that copyright legislation should be crafted to discourage other restrictions, perhaps by explicitly granting rights.

The US DMCA legistlation has been used to punish Sklyarov without a conviction, without violating the law within the US.

The DMCA has been used to suppress unquestionably appropriate scientific research http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_eff_felten_pr.html

A similar affect has been suppressing DeCSS and punishing Jon Johansen of Norway: http://www.eff.org/Intellectual_property/Video/DeCSS_prosecutions/Johansen_DeCSS_case/

Many, many publications of DeCSS are being suppressed via the DMCA. This is clearly a suppression of the right free speech. The extent of the suppression is astounding -- a US judge has ruled that an HTML link violates the DMCA. In effect, even talking about DeCSS has become illegal!

This cannot be tolerated in Canada.

Only illegitimate (in law, not opinion) copying should be prevented. The law should not brand legitimate copying illegal just to make this more convenient!

I suggest that a copyright should be voided if the producer takes away a consumer's normal rights to use a legal copy. After all, copyright give consumers rights too.

For Further Reading

===================

John Gilmore, "What's Wrong with Copy Protection"

http://www.toad.com/gnu/whatswrong.html

An excellent analysis of what anticircumvention intends to enshrine. (Gilmore is, among other things, a co-founder of EFF.)

(Interestingly, he pays me to create software that is "copylefted" -- made free for everyone. Another economic model. See www.freeswan.org to find out more about the actual software.)

Jessica Litman, Digital Copyright Prometheus Books 2001 ISBN 1-57392-889-5 www.digital-copyright.com Sample chapter: The Art of Making Copyright Laws http://www.msen.com/~litman/digital-copyright/ch2.html

The sample chapter give an interesting view on how copyright law has been formed. A key point is the dominance of special interests.

Hugh Redelmeier, Ph.D.
(Address removed)

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