ARCHIVED — David Megginson
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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 David Megginson received on September 12, 2001 via e-mail
Subject: Comments: CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES
Comments on Consultation Paper on Digital Copyright
Issues
Author: David Megginson, (Address removed)
Date: Wednesday 12 September 2001
I was impressed by the careful and balanced presentation of the issues in the Consultation Paper on Digital Copyright Issues (http://strategis.ic.gc.ca/SSG/rp01099e.html). The following statement from the paper is particularly insightful:
... the prohibition on circumvention devices and services could have the effect of overriding the traditional contours
of copyright protection that emphasize a balance between the rights of creators and the interests of users. More
particularly, the prohibition could have the effect of potentially blocking all types of access and use, whether or not
they constitute an infringement of copyright.
In the United States, the Digital Millennium Copyright Act has upset that balance severely: content providers are allowed to
use technology to take away fair-use rights, but consumers are prohibited from using technology to restore those rights. In
Canada we can learn from the Americans' mistakes and search for a way to amend the Copyright Act so that it preserves that
balance, without taking away traditional rights from either side.
One part of the discussion paper, could use some clarification. Among the four major issues raised is the following:
[whether] legislative measures are needed to deter the circumvention of technological measures that are used by
rights holders to protect their rights ...
The paper is correct to note further on that "completely foolproof measures are unlikely to be technologically feasible," but it
fails to distinguish between two distinct cases:
1.defeating the protection of a single work where the protection works as advertised; and
2.discovering fundamental flaws in a protection scheme itself.
In the first case, a user might defeat the encryption protecting a single digital song or movie by using a network of computers to
test an enormous number of keys over several months. After the user does so, however, any other digital songs or movies using
the same protection method remain as secure as they were previously, since they (presumably) use different keys. Given
sufficient time and resources, any protection can be circumvented, as the discussion paper notes, but the cost of defeating the
protection will generally outweigh the benefits.
In the second case, a user might find that the company providing the protection has made inaccurate or fraudulent claims about
its capabilities and might publicise those findings (as Dmitry Sklyarov famously did in his talk on Adobe's electronic book
protection scheme). When such knowledge becomes public, all digital products using the same scheme are vulnerable.
Despite the fact that the second case -- finding flaws in an entire protection scheme -- has more serious consequences, it is the
one most deserving of legal protection. Users of encryption and other protection need to know how safe the protection is: a
scheme that takes weeks to break (with current technology) may be sufficient for news photos, while one that takes dozens of
years to break might be more suitable for digital films, and one that takes centuries or millennia to break would be suitable for
confidential national security documents.
When people discover a flaw, they need to be allowed to bring them public's attention as quickly as possible. If the law gagged
whistle-blowers (as the DMCA does in the United States), broken protection algorithms could be used unknowingly in critical
fields such as health-care and law-enforcement, endangering privacy or even public safety. Clearly, the companies that
manufacture the protection software or hardware benefit for such a gag law by avoiding public embarrassment, but only at a
very serious cost both to the content producers and to the public at large.
2001-09-12
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