ARCHIVED — A Jeffrey Streifling 2

COPYRIGHT REFORM PROCESS

REPY COMMENTS

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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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Reply comment from Jeffrey Streifling received on October 04, 2001 via e-mail

Subject: Reply to CPDCI submissions

Several submissions replying to the Consultation Paper on Digital Copyright Issues expressed the idea that circumvention "devices" should not be banned because they would be necessary to avoid letting rightsholders effectively extend their rights beyond the limits prescribed by statute. This is correct, but implies a few things that are not immediately obvious. Consider the following argument:

(1) We divide all acts of technological protection measure circumvention into two categories: those that also involve actions that are regulated by the copyright statute (e.g., making a copy of a work) and those that do not.

(2) We further subdivide those circumventing actions that involve copyright-statute-regulated actions into to subcategories: those actions that infringe rights as prescribed by statute, and those that do not (e.g., copying a work under a fair-dealing exception or in the public domain).

(3) We now have three exhaustive categories of circumventing actions which we refer to typically: "infringing copying", "legitimate copying", and "raw circumvention" (not involving copying or other rights).

(4) We observe that infringing copying is already illegal under the copyright statute, and hence, that any further effort to ban infringing copying is redundant. It is not useful to discuss banning what is already illegal, except, perhaps, to adjust the penalties.

(5) We further observe that legitimate copying is not only legal, but needs to remain legal if the statutory limitations on copyright are to continue to be effective. It is preserving this activity of legitimate copying that motivates many submitters to recommend not banning circumvention "devices".

(6) Two of three cases can easily be dealt with in an unambiguous manner. Whenever circumvention involves actions regulated by copyright statute rights (e.g., copying a work) it is easy to tell if it is legitimate. Moreover, we already have well-established laws that prohibit actions that are copyright-infringing; any further effort to regulate here is redundant.

(7) Therefore, all motivation for additional laws proscribing copyright technological protection measure circumvention must come from the third category of circumvention, which I have dubbed raw circumvention.

(8) It appears that some stakeholders desire wide, sweeping prohibitions in the area of raw circumvention.

(9) Note carefully that when circumvention is performed without making a copy or some other action that corresponds to statute rights, the question of whether the circumvention is legitimate or not becomes ambiguous. Since no copy is actually made, there is no straightforward means of slotting the circumventing action into copyright-infringement-abetting and fair-dealing-abetting categories. If we have simply caught the person performing circumvention before he/she has had a chance to make a copy of something, we can reserve judgement until a copy (or translation or transmission to the public or whatever) is made, but once the copy is made, we can just decide as in the first two, unambiguous cases; here, once again, additional regulation would be redundant.

(10) Suppose then, that the laws created in this round of copyright reform actually make some activity illegal that was not illegal before (i.e., raw circumvention. That is, suppose (as some have proposed) that circumvention be proscribed unless it can be demonstrated to precede some legitimate, non-infringing activity, such as copying works that are in the public domain.

(11) Here again we will draw a dichotomy for the sake of argument. Suppose there are two classes of technological protection measures which we label by the typical difficulty involved in circumventing them: "hard" measures (which only a professional could circumvent) and "easy" measures (which an untrained person could circumvent).

(12) When "easy" measures are deployed, it would not be very profitable to ban raw circumvention because any untrained person could, by definition, go about circumventing the measure whenever a copy was desired. Such measures would arguably not be very useful, but they are discussed for the sake of completeness. It is unlikely that raw circumvention would be enough of an issue to be worth banning for this case; circumvention would almost always happen in the context of copying (or other statute-regulated activities) and proscribing it would be largely redundant as discussed above. It is arguable that the government should not be giving "easy" measures the full force of law, however.

(13) Where "hard" measures are deployed, the situation is significantly different. Assuming that the technological sophistication of major users of fair-dealing rights does not significantly exceed that of other users, it would be impossible for them to directly go about circumventing those measures when they interfered with their fair-dealing rights. They will need to be able to obtain the means for circumvention elsewhere.

(14) At this point, some submitters have assumed that by permitting circumvention "devices" (although not circumvention directly), a marketplace would spring up to provide for the needs of these legitimate, would-be copiers.

(15) In order to actually put some sort of tool into this marketplace, somebody, somewhere, somehow, is going to have to make a profession out of studying and circumventing these "hard" measures. (Indeed, this is very close to several well-established professions like cryptology and engineering.) These professionals are going to need to have an unambiguous mandate and proper protection for their activities. They will need to be able to do raw circumvention to deal directly with the mechanisms employed. They will need to be able to disable rights management information when it is used in conjunction with technological protection measures. They will need to have an exception to any licensing clauses prohibiting reverse engineering. (Actually, the interface between contract and copyright is quite muddled right now and needs some cleaning up, as discussed in the CMEC submission paper.) They are going to need proper academic venues to discuss their profession. They should not be threatened with extradition under jurisdiction ambiguities. If Canada expects major users of fair-dealing rights to have the tools to do their jobs, it will need to provide a legal way to do the research and develop those tools.

(16) Canada should not create an legal environment that prohibits the creation of the tools that it mandates using. Even if such a contradictory situation could be solved on an operational basis using black market mechanisms, it would expose the system to ridicule and uncertainty.

(17) Note carefully, then, that it is only the raw circumvention of hard measures that could reasonably motivate stakeholders to promote a ban on circumvention, and it is precisely the raw circumvention of hard measures that needs to be done by some professional in order to provide librarians, archivists, and educators with the tools to do their job.

(18) Stakeholders are motivated to promote a ban on circumvention in order to keep the means for easy infringement out of the hands of people who do not make significant use of fair-dealing rights and public domain works, but yet would opportunistically use the tools to infringe copyrights.

(19) It is unlikely that this fundamental contradiction can be resolved with the relatively blunt tool of direct prohibitions on either circumvention activities or circumvention devices. Absent some direct copying (which would make the whole discussion redundant), the circumvention professional who plans to sell his tool to librarians and archivists and the opportunist who is trying to profit at the expense of rightsholders will appear to be doing exactly the same thing. Indeed, they are doing the same thing. The only practical means to determine whether they are abetting infringement or abetting fair-dealing rights users is by observing to whom they sell their finished product.

(20) Therefore, rather than arguing about how to prohibit circumvention, the government should either develop a licensing scheme to track the development of circumvention tools and programs and ensure that they are only put to non-infringing uses or abandon the idea of trying to regulate circumvention. Any other course of action will only force legitimate activities underground, promote a black market, deal a blow to important Canadian institutions, and bring the system into disrepute. If the government is constrained to implement some sort of ban on circumvention for treaty reasons, it needs to riddle it with broad exceptions so that it will not upset the delicate balance of the Copyright Act.

NO. It is not sufficient to simply ban circumvention (except for obviously noninfringing activities) and permit circumvention devices. Those devices will never show up.

Jeffrey Streifling
(Internet address removed)