ARCHIVED — Gordon Fecyk

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 Gordon Fecyk received on September 17, 2001 via e-mail

Subject: Strategis Copyright Reform Comments

Gordon Fecyk
(address removed)

Comments - Government of Canada Copyright Reform

c/o Intellectual Property Policy Directorate

Industry Canada

235 Queen Street

5th Floor West

Ottawa, Ontario

K1A 0H5

Dear Strategis Staff:

I write to provide comments and to express deep concerns for the Government's Copyright Reform proposals. I will refer to sections in your Consultation Paper located on line at <http://strategis.ic.gc.ca/SSG/rp01099e.html>.

I ran out of time before being able to complete this document. I hope the document as it is helps your project.

4.1 Making Available

1. How would a "making available" right affect the balances among the various copyright interests?

2. In which respects might such a right require limitations or be subject to exceptions?

3. In which respects do existing rights, e.g., the reproduction right, fail to provide a measure of control which is comparable to a distinct "making available" right?

1. A 'making available' right would tip the balance strongly in favour of Canadian artists and performers and Canadian copyright holders. I am in favour of this.

Specifically, I refer to the DVD Copy Control Association's MPC controls and Content Scrambling System (CSS). The region controls disallow anyone to play DVD disk content not produced in the same region of the world they live in. For instance, no one in Europe may play disks produced for playback in the USA and Canada. This disallows Canadian performers and producers any right to make their work available outside of the USA and Canada, unless their work was reproduced for another region. Currently, Eurpoean audiences must wait extended periods for Canadian works to be available in DVD format, and even then for a price considerably higher (after exchange rates) than the same work produced in Canada. This control takes this right away from performers and producers and places it in control of a select few (The DVD CCA).

The DVD CCA also violates Article 8 in the WCT and articles 10 and 14 of the WPPT for the same reasons.

2. I do not believe the right to make one's work available should be limited in any way, The Criminal Code notwithstanding. There are obvious criminal reasons why we should not allow certain works to be made available, but I do not believe they are the concern of any changes made to Copyright Act.

3. Again I refer to the DVD CCA as an example of how the reproduction right fails to allow Canadians to make their works available in the DVD format.

Any amendments to the Copyright Act should ensure the right to make a work available remains with performers and producers, including the right to make a work available outside Canada regardless of such playback controls. A "making available" right would grant this.

4.2 Legal Protection of Technological Measures

1. Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over and access to copyright protected material, what factors suggest legislative intervention at this time?

2. 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?

3. If the government were to adopt provisions relating to techological measures, in which respects should such provisions be subject to exceptions of other limitations?

4. Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing technological measures?

1. I'm not impressed with the idea of any legislative intervention, because I have seen peoples' lives and rights threatened by copyright holders in the USA for trivial things. I do not wish Canadians be bullied in this manner. If I were to point out any factors suggesting such intervention, I would suggest this bullying of citizens.

2. I would prefer that a circumvention act or creation of a circumvention device be dealt with strictly within the Copyright Act. Any use that does not explicitly violate this act does not harm a property owner or copyright holder in any way. This would prevent the kind of abuse of peoples' rights we've already seen in the USA as a result of the DMCA, while ensuring that copyright holders retain their rights. If the objective is to protect property and property owners, stick with protecting property and property owners and not the technologies they use to protect them.

3. I would make exceptions for technological measures that can be trivially defeated. Do not afford protection of such measures. I understand the definition of 'trivial' is subject to the technology of the time. If I had to set a hard rule for what is 'trivial' or not, I would set a rule that any protection technology defeatable in less than one hour (or even better: less than one day) is trivial and should not be afforded protection by the Government.

My favorite example of what I consider a 'trivial' protection measure comes from a company called Digital Convergence. They attempted a marketing project that they based around an inexpensive bar code scanner called the CueCat. The CueCat would only work with the software they provided, and said software sent all bar codes scanned to a central database - Digital Convergence essentially developed an anti-privacy tool and CurCat owners were unaware it was being used in this manner.

A third party developed their own software to use the bar code scanner and several clones based on its source code appeared later. Digital Convergence attempted to protect the bar code scanner's output with a trivial protection scheme that was easy to defeat. Base64 encoding isn't exactly a protection scheme by anyone's stretch of the imagination - every e-mail program includes a decoder for it so users can receive file attachments by e-mail.

While I personally believe copyright holders who are serious about protecting their property should research technologically sound protection measures, I respect that copyright holders do not always have the resources to do so. Trespassing and Theft are still criminal acts even if a property owner doesn't put up a strong enough fence. This being the case, strong technological measures are globally available for all to use and have proven very difficult to defeat.

NOTE: Copyright holders in the USA would have used their DMCA to forbid me from linking to all the sites I linked to in this document. I am a criminal, supposedly. Yet, without my exposing this information to you so you may make sound judgements, you could have passed legislation allowing copyright holders to bully Canadians into submission as well.

4. Digital Convergence scores a zero in privacy, too. Once again, I urge that the Government not afford protection of trivially defeatable measures related to non-copyright matters such as privacy.

Perhaps a better example of a non-copyright issue is Security. If I were a computer security consultant advising a large firm on their networking and computer purchases, I would want to test the products I would be recommending so they meet my client's security needs. Were I restricted from performing such tests I could not do the job.

Microsoft is famous for its operating system software. They are also famous for the multitudes of software problems, or 'bugs', in their operating system software. If I had to choose between say a Microsoft server platform and a Novell server platform and evaluate their security, I would want to find or even develop the same tools that the 'crackers' and 'script kiddies' would use to break into computer systems and networks (I will not use the word 'hacker' to describe a person who breaks into computer systems) and use those tools in a test environment. Both of these companies enforce ridiculous End User License Agreements forbidding deconstructing, reverse engineering, etc their software for any purpose, yet I must violate these EULAs to do my job to recommend a secure platform for my client. If I don't, my client runs the risk of running an insecure platform and I risk being sued for making an unsound recommendation.

Is my posessing circumvention devices a crime? Should it be? Should Microsoft and Novell be allowed to sue me for violating their EULAs under some Canadian version of the DMCA? Get sued by my client or get sued by Microsoft. Either way, I lose. My client loses too because any security flaws in their platform remain undiscovered until the 'crackers' know about it and by then it's too late.

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