ARCHIVED — Claudia Schmeing
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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 Claudia Schmeing received on September 16, 2001 via e-mail
Subject: comments re: copyright
To Industry Canada, the Department of Canadian Heritage, the Intellectual Property Policy Directorate and other concerned agencies:
I am concerned about some of the attitudes and assumptions in the Consultation Paper on Digital Copyright Issues (CPCDI), which takes its lead from the US Digital Millennium Copyright Act (DMCA).
Both the Act and the Paper are informed by the same spirit: one which privileges the rights of large media producers over the interests of both individual freedom of speech, and freedom to undertake technical innovation.
From a rights perspective, it is problematic that you plan to amend the Canadian Copyright Act to ban software and other tools that allow copy prevention technologies to be bypassed, in flagrant violation of national and international legal provisions to protect freedom of speech. Why does it violate these rights? Because Canadians need to be able to write (code) these tools in order to exercise lawful use of media they rightfully own, for example in the forms of fair dealing, reverse engineering, or computer security research.
An example: What if you bought a CD (say an encyclopedia) that didn't play on your non-microsoft (say Unix) operating system -- and you could code a disc player, but it was unlawful for you to do so because it violated a proprietary "copyright protection" which was easily broken. How is this different from selling a box tied closed with twine, and insisting that people who are able to break this inadequate "lock" be arrested, though they may own the box. It seems counter-intuitive for the Canadian government to empower technical ineptitude in this manner.
Why indeed should the Canadian public purse finance the cost of enforcing the interests of a largely foreign recording industry, any more than it already does? Should the onus not be on the US recording industry to develop technically effective and marketable protection for their products? We do not ban tape recorders or xerox machines because they *could* be used to violate copyright, any more than we ban guns because they might be used to take a life. Although it is increasingly challenging, our government should not be a slave to industry demands, but should continue to represent the needs and rights of its citizens.
Further, how would the CPCDI challenge Canadians' existing concepts of ownership rights?
From an economic perspective, restricting legitimate technical activities (fair dealing, reverse engineering, etc.) discourages activity and/or expansion in the now-flourishing technical sector of the Canadian economy.
Canada has historically taken a very enlightened view on a related issue, namely the right to develop and distribute public domain cryptographic code. Canadians in the technical field appreciate this, and it has stimulated economic and intellectual activity in this country. Importantly, on this issue Canada did not blindly follow a US precedent, but independently developed appropriate guidelines. I hope that you will make the same careful consideration as regards digital copyright issues.
Additionally, it seems that the DMCA, the precedent for this Act, may not even be workable in the US context. At the very least, its road-testing in the US -- and the accompanying international criticism -- shows up some important weaknesses of the general approach. There are currently serious legal challenges to this act. To look at its human cost, consider the case of the Russian programmer arrested while visiting the US for *having written* code counter to the Act. It perhaps premature for Canada to put similar provisions in place while in the US the template for these provisions is seriously contested.
Please consider also that in the new economy, the definition of "stakeholder" requires revision. In particular, in this case, consider the community of Canadian computer programmers and system admininistrators. We are not only a source of highly educated labour, but also a group of very mobile and in-demand consultants and small business owners whose economic presence is vital to the health of the Canadian economy in the new millenium. Your request for comments is based largely on an outdated model of "corporate stakeholder" vs. "concerned citizen", where each camp has had a well-defined role. I urge you, however, to consider this technical community as a "third thing", a group rich in both expertise and economic impact, and to pay special consideration to our voices, as you read our comments over the coming weeks.
Sincerely,
Claudia Schmeing
(Address removed)
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