ARCHIVED — Karl Stevens

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 Karl Stevens received on September 15, 2001 via e-mail

Subject: Comments on "CONSULTATION PAPERS ON INTERNET COPYRIGHT ISSUES"

Reply to the Consultation Paper on Digital Copyright Issues

Foreword

It is with mixed emotions that I write this. On one hand, I dread that an enlightened society such as Canada could be considering such measures as the USA's Digital Millennium Copyright Act (DMCA). On the other hand, I am glad that the policy makers see both sides of this issue, and are giving Canadians a chance to voice their opinions. I am confident that the polcy makers will see the folly in attempting to enact similar legislation here.

Introduction

Copyright is a delicate balance; it balances the rights of authors and publishers, with the rights of society and the public. Copyright grants a government-mandated monopoly for a limited time, to authors, so that they may profit from their work. In any free economic society, a monopoly is considered a bad thing, as it prevents competition, and thus is bad for consumers; so in return for this monopoly, the public is granted the ability to view such works, and when the monopoly expires, the work is free to be used by anyone. Thus Copyright law works to ensure growth of the arts and culture, as new artists gain exposure and inspiration from existing bodies of work.

This balance, which has existed for over two hundred years, is now being threatened by the WIPO treaties. By banning circumvention of technological access mechanisms, we completely throw away the concept of fair use and first sale, and effectively produce copyright that will never expire; any objective person could hardly call such measures 'balanced'.

Rationale

There are many instances in which use of a work is not infringing. All of them fall under provisions known as 'fair use'. Technological measures to prevent use can not know which uses are infringing and which are not, they simply block everything. Legislation to prevent circumvention or circumvention devices would therefore prohibit fair use.

In effect, such legislation would grant sweeping new powers to copyright holders, as they would be able to decide how or where you can view works you have already purchased. This is a chilling effect on consumer rights. Imagine purchasing a movie, only to be told that you may only watch it on thursdays and sundays, or that you may not watch it on the VCR in your bedroom, only the one in your living room. Doing so would be a violation of Federal Law. The first example is unlikely to happen, but the second is not only possible, but likely to happen, as content can be 'keyed' to a particular player. Microsoft Corporation's Ebook software does exactly this.

Copyright protects an owner's right to control who is allowed to reproduce a work. It does not, and should not, have any effect over who can view a copy of a work.

Real-world effects

As the USA's DMCA has been in force for almost a year, Canada is fortunate that we may look south to its effects, and see similar effects that would occur should we impose similar legislation. The DMCA has stifled free speech, and criminalized people whose only 'crime' is curiosity. Donald Felten, Professor Emeritus at Harvard University was prevented from publishing his research paper on the Secure Digital Music Initiative (SDMI), because the paper discussed flaws in the SDMI architecture. After being threatened with legal action under the DMCA, Dr. Felten cancelled the presentation of his research. Although Dr. Felten is challenging this in court under the US Constitution, it is a dire predictor of what could happen here.

The logic that we must ban circumvention of technological controls is flawed. From the "Consultation Paper on Digital Copyright Issues" (CPDCI), page 6: "Internet based infringers ... may operate from within jurisdictions that provide relatively little copyright protection." If Canada bans circumvention of copyright 'protection' mechanisms, there are two possible outcomes for internet-based infringers: First, infringers will take no notice - they are already aware that they are breaking laws, why would they stop simply because another law exists? Second, they will rely on people in the above mentioned 'other jurisdictions' to provide the circumvention, and continue infringing. The 'best case' scenario would have no effect on copyright infringement, but still have all of the negative consequences to non-infringing users.

By banning circumvention, our culture will be even harder to archive than it already is: circumvention is necessary to archive copies - this would cause irreparable harm to our country.

Such anti-circumvention legislation would also have detrimental effects to the field of computer security, and consumer protection; manufacturers of 'security devices' could make any claim they wish about the strength of their product, and nobody would be able to challenge these claims, as such legislation would prevent it. We have already seen such a case with Adobe Corporation's "eBook" technology. They claimed 'strong encryption', but in fact the method they used to 'encrypt' the books is simple ROT-13 (a trivial cipher, wherein each letter is rotated 13 places in the alphabet, so 'A' becomes 'N', 'B' becomes 'O', etc.), which is over 2000 years old, and can be 'deciphered' by many people in their head. Dmitry Sklyarov, the person who discovered this fact, was arrested by US police, and is being charged under the DMCA.

Closing

I am in favour of a balanced copyright system, one which protects the public, as well as authors. Such a balance can not exist if the proposed legislation is enacted.

Sincerely,

Karl Stevens,
(Address removed)