ARCHIVED — Canadian Publishers' Council

1.) The "Making Available" Right

The Act should be amended to include the exclusive right of rights holders to make their work(s) available as they see fit to one or more members of the public in one or more places and at any time. This is even more important in the digital world than in the print environment.

Article 8 of the WIPO Copyright Treaty and Articles 10/14 of the WIPO Performances and Phonograms treaty articulate an express "making available" right. Whether we amend the Copyright Act or implement the Treaties or both in the foreseeable future, the "making available" right is appropriate to our digital environment. We do not agree with the opinion of the consultants as expressed in 1998 that "our communication right, with its attendant authorization right, is sufficiently broad to include a "making available" right for authors and their successors." We do not believe that the current Act is clear on this matter.

The private / public distortion inherent in 'to the public' (Article 8) is a danger for rights holders. Point to point communication may be seen as 'private communication' but a definitional flaw permitting uncontrolled one to one communications containing the same copyright material could have a devastating affect. Again, our Copyright Act must be clarified.

We support a right that is free-standing and consistent across all rights holders in order to ensure that dispute does not arise between the rights of say, performers and authors.

2.) The Legal Protection of Technological Measures (TPM)

The paper states that "it may be that amendments made to the Act at this time could have the inadvertent effect of working against a Canadian presence if technologies develop along particular or unpredictable pathways". More than one of our members is delivering curriculum online; several members already do more than half of their business online. We are willing to revisit amendments in that unlikely event.

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?

All the world knows about Napster -- once the central locus of piracy of recorded music. The volume of downloads and the economic implications of that activity threatened the future of an industry.

An equivalent problem is invading the book marketplace. Peer to peer (P2P) file exchange (or 'file sharing') networks allow individual computer users to search for and download music and other files from other users of the network. Exchanges were initially music-only networks for MP3-format music files. Now, they are increasingly used to exchange any digital file including computer software, videos, movies and books.

Until now, P2P exchanges have not traded significant numbers of books, concentrating instead on music files and to a lesser extent videos. Books traded via P2P networks are expected to increase as a result of external factors including growth in the number of users for P2P networks (which will create critical mass in specialist subject areas interested in trading book files); increasing numbers of users with high-speed internet connectivity (which reduces the time required to download a large book file); increased availability of books in electronic formats from publishers; and increased availability of low-cost data storage (as the prices of consumer hard drives continue to fall).

Books can be traded across P2P networks in a number of formats, including text files, e-book files, Acrobat page images, and GIF graphic images. Available software allows any computer user with access to a copy of a book and a scanner to create high-quality digital image files suitable for trading. Sales of privately owned CD burners have skyrocketed. There are legal reasons to make a CD but the 80/20 rule likely applies; 80% of instances potentially involve some degree of infringement. We cite the activity that ultimately resulted in taxation of blank audio tapes.

There is no central point -- no singular person or entity responsible for infringement of

printed works scanned and transmitted electronically, or

e-books / e-content that is free standing or integral to a web site.

The peer to peer method is a "pull" use of technology, i.e. the user goes looking for content as opposed to responding to someone 'advertising' the availability of content, i.e. "push" technology. There are hundreds of thousands of individuals daily downloading content in acts of infringement. It is perhaps possible to find these individuals. That ultimately drives activity to new sites.

It is known that reference works, fiction and non-fiction titles, post-secondary and post-graduate texts and professional media are all at risk. We know that entire web sites have been illegally exported.

The Toronto Star recently carried an article entitled Copyright: What's Right? in which it was noted that "banning the tools of circumvention has had a chilling effect on computer-security research". We have every reason to believe that the vast majority of circumvention is done with commercial intent.

We understand that the community of copyright consumers is concerned that technological measures will "lock up" information -- making it inaccessible, that technology might even put a lock on what is in the public domain if it is an integral portion of a copyright work. In fact, the publisher invests substantially in the work and expects a return on that investment. Making the work accessible is what generates the return on investment.

Legislative intervention much later could be 'too little too late'.

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?

There are anti-tampering sections in the Criminal Code but they are for crude offences. We need a digital point of reference and a focus on available relief for an individual. We believe that circumvention of technological measures must be addressed in copyright. The issues have their genesis in copyright. Circumvention is not a mechanical issue that fits into, say, the industrial design statutes; it does not require new legislation; is about infringement of copyright. The Copyright Act administers protection against unauthorized reproduction of tangible property in digital form. The new U.S. Digital Millennium Copyright Act supports industry's use of technological measures. Without the legal prohibitions of modern copyright legislation and appropriate penalties, pirates will continue to rule cyberspace.

Canadian law should inhibit conduct and prohibit devices that are designed to undermine encryption as a copyright protection initiative.

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

It is our view that there should be no exceptions to allow circumvention of a device. It should be an infringing act to remove or circumvent any device or measure intended to limit reproduction or any other right granted under the Act. This is consistent with the provisions of the WIPO Copyright Treaty.

"Locked up" works are commercially available in the normal marketplace. Works are "locked" because they have a value which is exploitable. Again, we recognize that consumers are concerned about the "lock up" of information including that which is in the public domain. If that needs to be addressed at some future point when it is a real issue as opposed to a hypothetical scenario, we will be pleased to do so. The publisher's objective is generally to make the work in which it has invested freely accessible but not accessible for free. To "publish" is to "make available". We are not unsympathetic to the consumer community's concerns and wish to ensure fair and appropriate access.

Again:

§ Publishers want to control access to works but to make them available.

§ Publishers want a return on their investment and so have some strategies to allow free access but -- as a general rule -- not access for free.

§ Publishers do not want exceptions that permit legal code-breaking or use of circumvention devices but publishers do want to ensure that consumers may make the uses they need.

§ Publishers agree that legal mechanisms such as technological protection measures should perhaps be calibrated in their design to ensure that the use and access to which the consumer is entitled by law is facilitated.

§ Publishers are prepared to examine together with the

user community the implications of extending print exceptions

into a digital environment or creating others.

§ Publishers agree that licensing strategies should not generally override fair dealing or statutory exceptions.

§ Publishers are prepared to create incentives for copyright consumers that will reduce the perceived impact of technological protection measures.

§ Publishers are prepared to visit and re-visit the issues with their customers - consumers of copyright - as need be.

§ Publishers also believe that collective administrators such as the Canadian Copyright Licensing Agency (CANCOPY) can help.

Again, we are not yet sure of all of the operational measures that will ensure these principles in an evolving digital world but these principles are genuine.

Creators and producers are more vulnerable in the digital environment. The effective exploitation of a work necessitates more refined technological protection than does the print environment. The removal of technological measures puts a work at risk of immediate infringement around the globe. We are opposed to any regime that allows circumvention with permission for any express purpose.

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

We believe that privacy issues are specific to e-commerce per se and run the gamut from electronic personal banking to comment on public policy questions rather than to copyright in the context of business conduct or particular products.

3.) Legal Protection of Rights Management Information (RMI)

The government should amend the Copyright Act to provide protection for rights management information; remedies must be provided against any person knowingly removing or altering electronic rights management information without authority or distributing, importing or communicating to the public works / copies knowing that rights management information has been eliminated or altered without authority. This will be consistent with Article 12 of the WIPO Copyright Treaty.

We were pleased to see recognition in the consultation paper that protection of RMI is appropriate. In particular, we were pleased with the concept of new secondary infringements including interference with the management of rights.

We strongly prefer Option A because it includes terms and conditions of use which are required for ratification of WIPO but are missing from Option B. Rights owners have a vested interest in ensuring that their identifier information remains accurate over the life of the work.

1). What information should be protected under the Copyright Act? Given that information may cease to be accurate over time, should information relating to, for example, the owner of copyright and to terms and conditions of use be protected?

The name of the author or the editor where the editor is the author, conditions of use of the work, ownership, locational and other identifiers should be protected under the Act. The protection of rights management information will help to ensure the integrity of identifiers.

Protection should neither be ad hoc nor applicable only to the lowest common denominator of constant RMI. Rights management information is one of the publisher's most important tools for successful and secure e-commerce. It can be key to marketing strategies by type of work.

Various intellectual property-based industries have developed new standard data and metadata sets. The first two DOI registration agencies (USA and Korea) and the journals sector's CrossRef are now collaborating on RMI business models with standards organizations, content producers and others to advance trade in multimedia intellectual property. CANCOPY is directly and actively involved in ISO initiatives to develop standards in this field.

2). Certain terms and conditions may not be legally valid in Canada if they are contrary to public policy. In light of this, what limitations should there be on protection of such information? Is a provision required that specifies that the protection of such information does not imply its legal validity in Canada?

Determination of the legal validity of RMI should be reserved to the justice system. Verification and validation of management information should not be a function of the Copyright Act.

3.) Given the fact that some technologies serve a dual purpose, i.e., reflect rights management information and protect a work against infringement, how should provisions concerning rights management information take into account provisions regarding technological measures?

Technological measures and rights management information should be kept separate within the Copyright Act. If, in the future, it is difficult or unnecessary to distinguish between them because of the maturity of applied standards, the Act can be further amended. At present, the development of both technologies and management systems is evolving from infancy.

4.) If the Act were amended to protect rights management information, does the fact that some technologies may be used both to set out rights management information and protect a work against infringement mean that duplicate or overlapping sanctions could result in some cases?

It is not uncommon to see coincident liability for multiple infringements. That should not dissuade the government from protecting dual-purpose "systems".

5.) Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing rights management information?

See response to #4 under Technological Measures.

4.) Liability of Network Intermediaries such as Internet Service Providers

There should be a statutory definition of an ISP.

It is assumed that the only ISP community that is being targeted by this discussion is the neutral group that provide services to third parties who design and distribute their own content. We are not addressing services like Napster or Gnutella clearly set up as facilitators of the distribution of copyrighted material. In those instances full liability should attract.

In the case of the service providers who provide the facilities for third parties, the liability for the content and actions of their clients should only kick in after notice of a violation of the Copyright Act. The appropriate action of an ISP to avoid liability is to take down sites after notice of a breach of the Copyright Act. The type of notice required and the takedown guidelines should be established in the Copyright Act. If the take-down does not occur, there must be injunctive relief.

ISPs must be generally liable for copyright infringement on their systems and must not be sheltered under a broad exemption. ISP liability must be specifically defined.