ARCHIVED — A George Geczy

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 George Geczy received on October 09, 2001 via e-mail

Subject: REPLY COMMENT to Submissions on Consultation Paoer on Digital Copyright Issues

PDF version

October 7th, 2001

BY EMAIL

REPLY COMMENTS for Consultation Paper on Digital Copyright Issues

SPECIFIC TO: AOL/Time Warner Submission


While I understand that your department is still compiling and posting some of the comments made before the Submission Deadline, I would like to take this opportunity to issue some reply comments on the America-Online/Time Warner Submission.

I chose this particular submission as being representative of most of the content/media giants that have made representations and comments on the Digital Copyright consultations. Most of my comments below would apply to all of the similar comments made by the large media companies.

Predictably AOL/TW comes out in favour of strong anti-circumvention regulations and prevention of creation or discussion of circumvention processes and devices. Their submission contains many statements which are simply not reasonable or realistic, and they also completely ignore commenting on important issues and side-effects of their position. I can understand that their point of view is to maximize the value of their content assets and potential revenues for the sale and licensing of those assets, but their submission would be much more palatable if they also recognized that their positions substantially reduce fair use/fair dealing, academic and personal use rights that are currently available today. To properly debate the anti-circumvention changes being discussed we must acknowledge that many individual rights will be curtailed or lost, and the AOL/TW submission ignores or falsely downplays these effects.

For example:

"In the traditional analogue environment, physical limitations have as a practical matter made it possible for right holders to prevent unauthorized access to their works. For example, consumers could not look at books without authorized access to bookstores or libraries…" This comparison of "access to" works versus "use of" works is nothing short of odd. Possibly AOL/TW is not aware of the fact that libraries (and in some cases even bookstores) allow a significant number of uses of traditional works including browsing, fair dealing, lending, re-sale, and (for purchased works) a wide variety of personal uses. To compare technological information access restrictions to the locks on the door of a library just boggles the mind, and completely ignores the user rights that are removed and restricted by technological access barriers. A user’s only opportunity to counter excess barriers to fair dealing and personal use is the use of circumvention methods and devices that will allow the users to effect their legal and allowable use rights.

It is also amazing to see AOL/TW compare technological restrictions to the "locks" on the doors of libraries, when in fact the charter and mission of libraries is to provide access to all citizens regardless of social standing, disabilities, and financial wherewithal. AOL/TW seem to completely miss the fact that libraries (and fair dealing rights) give the ability for copyrighted works to be legally viewed by the general population that may not otherwise have access to those works. Unrestricted technological barriers, without the ability to circumvent unreasonable barriers to allow use of legal rights, will destroy these fundamental concepts.

"One way to meet this concern, however, is to provide a government entity with the power to step in to prevent such a negative outcome. Such techniques have been adopted by two of Canada's major trading partners, the United States and the European Communities…’ First, such a government entity can’t seriously be expected to protect fair dealing and personal use rights once extensively restrictive anti-circumvention rules are enacted, at the very best such a government entity may be able to slowly address the most egregious and extreme cases of rights restrictions. And secondly, the example of the United States shows the utter failure of such a line of thought – the Sklyarov, Fulton, and DeCSS legal cases (among many others) have shown that, once the DMCA was passed, the US government had no desire or power to step in and reverse the seriously inappropriate uses of the DMCA anti-circumvention regulations. In each of these and many other instances, cases were launched (and in some cases charges laid) against individuals that had not been involved with any traditional illegal copying activity or Copyright Act infringement.

"The arguments for delay, in contrast, are based on legitimate but speculative concerns about negative consequences that could come to pass in a worst-case scenario…” The US DMCA has already proven (in cases such as Sklyarov, Fulton, etc) that such concerns are not speculative, but in fact quite real and significantly threatening. Many products such as restricted e-Books (the circumvention algorithms of which prompted the Sklyarov case) already eliminate many legal rights, including basic human rights such as the ability to overcome disabilities by translation of written materials into speech or large print formats. These are all "consequences" that have appeared within months of the passing of the US DMCA legislation.

"The best guarantee of accuracy is the right holders' interest in ensuring effective licensing and payment, as well as reliable communication with their audiences…" This is so naïve that they cannot possibly believe this is true. My personal software shelves are already filled with very many software titles that, over just a span of 15 years, have been abandoned or forgotten by their publishers. Add to that the hundreds of content publishers that go bankrupt or close each year. Even if the rights to their works are eventually purchased by other publishers, most marginal works are never re-published or supported. This is also true of written materials; the vast majority of the world’s historically published information is now out of print and no longer offered or supported. AOL/TW and other media giants have an interest in protecting profitable, popular content, but they have almost no interest at all in supporting out of date or unprofitable assets. These will be left abandoned, just as they have been in the past, and without available circumvention methods any protected information will be inaccessible and unusable for most legal uses, including in some cases the use that they were originally purchased and paid for.

Once again, I would like to emphatically state that the only legitimate and acceptable methods for protecting against illegal copying and copyright infringement are through the use of Copyright act remedies directed at the infringement itself. Restricting circumvention for legal uses, and restricting the discussion and sharing of information on encryption and circumvention methods, is an unacceptable assault to the balance of user rights in the Copyright Act, as well an infringement of the rights of Canadian citizens under the Charter and the UN Declaration on Human Rights. These fundamental rights must be more important to our society than the protection of all potential revenue sources for large (and often very wealthy) media companies.

Yours Sincerely,

George Geczy,
Partner, dg technical consulting (Email Address removed)
also Chair, Hamilton Chamber of Commerce Science & Technology Committee