ARCHIVED — Ian Clelland & Kevin Griffin

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 Ian Clelland & Kevin Griffin received on September 16, 2001 via e-mail

Subject: Comments - Government of Canada Copyright Reform

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Table of Contents

1. The nature of digital information
2. Copyright law and contract law
3. Cultural considerations
4. Economic impact
5. A proposed remedy

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1. The nature of digital information as it relates to the act of duplication

In the days, not so long ago, before all information was digital, copying a document, a work of art, was a very deliberate act. Duplication of analog media was a slow, error-prone task, and without resorting to extraordinary measures, each successive copy was necessarily a degraded version of the original. Above all, it was very clear when a copy was being made.

How things have changed. Today, most of the information we deal with is digital. It is recognized that the physical media no longer matters. What is important is the patterns -- of letters in a newspaper; of pixels in an image; of sound samples in a recording -- the "ones and zeroes" making up the digital world.

Today, information can barely be said to have a "location" -- consider the "location" of a web site you are looking at right now. Where is that information? Is it the pattern of pixels on your monitor? Is it the pattern of symbols on your hard drive? Is it the cached version of the site at your ISP? Or is it the original version on the author's web server?

Has a copy of that site been made? By whom?

Today, millions of copies of digital data are made all the time, unnoticed by everyone except the computers which rely on this copying to function, and similarly unimportant to everyone but the computers. This is a consequence of the nature of digital media, digital computers, and digital networks.

Since we no longer need to transport physical media, transferring information from one location to another causes any number of copies of that data to be made. From a hard drive onto a cable inside a computer, a copy is made. From that cable into the computer's CPU, a copy is made. From the CPU into the computer's memory, a copy is made. And so on, until the data reaches it's intended destination.

Today, the only difference between transferring information and copying information is whether anyone bothers to keep the original around. And when someone does keep a copy, it may not be who you expect. Caching servers, for instance, may retain a copy of all data that passes through them, so that they can respond faster the next time you ask for it.

The very notion of "the number of copies" of a particular work is nearly meaningless. Every time it is accessed, innumerable copies are made -- some transient, lasting only microseconds; others more permanent, lasting seconds or minutes; some may last for weeks or even be considered 'permanent'.

Today, 'copying' is no longer the positive action it once was. Millions of people make uncountable numbers of incidental copies of information every time they interact with a computer. All but a tiny fraction of these copies are made without their knowledge or explicit consent. The act of copying has moved to a much lower level: what was once a very deliberate task has become a byproduct of the way we deal with information.

As the level on which copying takes place is so far removed from that on which most people operate as to be practically meaningless, it has become important to move the discussion of copyright issues up to a higher level. We must begin talking about people's intentions, and the subsequent usage of copied information.

2. Copyright Law and Contract Law

There is an important line to be drawn today between copyright law and contract law.

This line has always existed, but seems to have become 'blurred' in recent years as rights holders have attempted to attach additional restrictions on the use of their works beyond those prescribed by copyright law. These usage licenses are drawn as legal contracts, but now the rights holders want to have copyright law rewritten in order to be able to use it when defending what they see as their right to control access to their works.

The distinction we would like to see made is this: Copyright law deals with the inherent rights of the public to enjoy copyrighted works, and with the rights of the works' authors to control how those works are used. These rights are granted by the government, and the government sets out the terms and defines the roles of the parties involved.

Contract law, by contrast, deals with agreements made between informed and consenting individuals. The terms of the contract are drawn up solely by the parties involved. The roles of the parties; the rights granted by each party to the other; the obligations of each party: all of these things can be spelled out explicitly before the contract is accepted.

Matters of contract law can, to a very good approximation, be decided by an automated process. The terms of a contract specify what can and cannot be done. Software techniques can be used to identify authorised users, as well as detecting unauthorised actions. Since authorised actions are described explicitly, infringing uses are very easy to detect.

Copyright issues are very different from this. The subtleties of fair use cannot be determined by any algorithm -- rather, they require good judgment, common sense, and occasionally the interpretation of the courts to separate infringing from non-infringing uses. No computer can distinguish fair-use quoting in an academic paper from outright plagiarism; or copying for mass-distribution from copying for personal use. In copyright matters, the issue is less whether a copy was made as how it was used afterwards. The contract law solution of simply disallowing all copying is simply inappropriate in these matters.

These two sections of the law need to be referenced when discussing technological copy-protection measures. Such measures are introduced by copyright holders in an attempt to reduce the number of copyright violations against their works. However, by resorting to an automated, technological system, they move away from the intent of copyright law, which allows copies to be made for a number of non-infringing uses, into an area better served by contract law.

Copyright law would be wrong to use a blanket law to defend these rights holders against people circumventing their protection measures. The act of circumvention cannot itself be considered a violation of copyright, without considering the subsequent usage of the copied work. Similarly, the development or possession of tools enabling such circumvention cannot be considered a violation of copyright, as these tools are just as useful for non-infringing users as they are for copyright violators.

What copyright law is intended to defines is the acceptable usage of copyrighted works. Not the act of duplication; not the means by which such duplication was achieved; not the development of tools to facilitate such duplication. If the law is extended to cover these things, then the balance which it currently achieves between rights holders and users will be shifted much too far away from the public. What is worse, the law will no longer be setting the rules for use of copyrighted materials - that responsibility will have been ceded to the rights holders, who will set their own rules in hardware and in software.

If the authors of a work wish to draw up a contract, a license agreement, which strictly prohibits copying in any form, or redefines the acceptable uses of the work, that is a matter for contract law to handle. Potential users may enter into a contract by which they agree to arbitrary terms set by the rights holders, and those terms may be enforced by whatever means are specified in the contract.

When, as will inevitably happen, this contract conflicts with copyright law, and people are presented with contracts which would remove the rights to use given to them by copyright law, it will be up to the courts to decide which takes precedence. But at least then it will be clear which terms come from the law and which are a matter of contract.

3. Cultural considerations

"Content" - is one element in the vast cultural discourse. Our right and obligation to discuss what we see and hear is part of our cultural inheritance. It has been the role of the Canadian government to encourage discussion on all things Canadian. Already, it may be the case that we see or hear things which, by contract, we cannot discuss. However, if we are not careful, our ability to maintain a healthy cultural dialogue may be threatened. We must not allow it to become the norm that copyright holders can, for personal financial gain, prohibit Canadians from discussing, sharing, and enjoying content as a community. To do so would be to exclude this content from the body of Canadian culture.

4. Economic Impact

The following are what we perceive to be economic concerns arising out of these issues:

a) Economic impact of legal protection of copy-protection measures

If Canadian content providers are going to be able to find solutions that they can live with, Canadian researchers need to have the liberty to investigate these issues without fear of prosecution. If we criminalize such research, then it is less likely that Canadian computer scientists would be able to find content protection mechanisms that would survive world attention.

If research into the effectiveness of copy protection measures is made illegal, then there can be no meaningful public discourse on copy protection.

If research into content protection mechanisms is outlawed, then we may find that the software solutions proposed to protect content may, in fact, be inadequate and leave said content in a worse position than before.

b) Economic impact of defending existing distribution channels

The nature of digital media is sufficiently different from that of analog media that existing distribution channels are inefficient and ineffective. If we craft legislation to defend these increasingly irrelevant channels, we are, in fact, protecting the interests of what might be "sunset" industries. Canada will pay the price on world markets for such protectionism, as other countries choose instead to promote new channels which embrace the realities of digital media.

5. A proposed remedy

The need to balance the concerns of content producers and the public at large is serious. Given that existing copyright law provides remedies in cases of copyright violation, we do not feel that any amendment to this law would be wise at this time. However, we understand that content providers desire to protect themselves and their works. If they seek a technical solution to their legal problem then we might recommend use of watermarking to help track what might be unauthorized copying.

Digital watermarking addresses the concerns of content producers by providing a mechanism by which individual copies of a document may be tracked. This technology makes it easier to track a copyright violation to the original purchaser, since digital copying will always preserve the embedded watermark.

The decision to use watermarking is made by content producers. This relieves the government of the responsibility of legislating solutions, while at the same time allows concerned content producers to take measures to aid law enforcement.

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