ARCHIVED — A Matthew Skala 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 Matthew Skala received on October 17, 2001 via e-mail

Subject: Response comment of Matthew Skala to the submissions of Eric R. Smith, PhD, and Coridon Henshaw

Response comment of Matthew Skala to the submissions of Eric R. Smith, PhD, and Coridon Henshaw

The September 14, 2001 submission of Eric R. Smith, PhD, makes many of the same arguments, opposing digital rights management (DRM) protection, that were also made in the overwhelming majority of submissions from other individual Canadians including the present author. However, the Smith submission is noteworthy for the following unique comment:

[I]f private copying of a work is precluded by technological means, then the author, performer, and maker of the work should not benefit in respect of that work from the levy on blank audio recording media[.]

That is an eminently sensible suggestion. The blank media levy represents a bargain between copyright privilege holders and the government, or indirectly the public: instead of implementing an expensive and complicated regime to license private copying, privilege holders agree to be compensated for such copying by the relatively simple blank media levy. Of course, if privilege holders no longer respect their side of the bargain, then the bargain becomes void.

The blank media levy is already somewhat controversial. Many Canadians believe that because the levy is paid even by users who will use the blank media for copyright-exempt fair dealing, or to record original work covered by their own personal copyrights, then it represents a fine for infringement charged in advance to innocent persons just because they might someday infringe copyright. Some Canadians suggest that since they are paying the blank media levy, that constitutes permission from the government (indirectly, the privilege holders) to freely copy copyrighted works onto the taxed media. Some privilege holders might call that unfair; and many privilege holders (including, for instance, the present author) create large amounts of work without ever receiving any money from the blank media levy. That, too, might seem unfair. But for the moment, let us consider that the blank media levy is a fair bargain, or at least was a fair bargain at one time. How shall we keep it fair as DRM becomes popular?

Under the blank media levy bargain, privilege holders agree to accept private copying in exchange for the money they receive from the levy. With DRM in place, even without any legal backing for it, the privilege holders can no longer claim to be resigned to private copying. Rather, they are doing everything technically possible to prevent private copying, even beyond the traditional "first sale" limit. Please consider the perceptive comments of Coridon Henshaw on first sale in DRM regimes - DRM systems fail to respect first sale not because of technical limitations but because the system designers choose to deliberately ignore first sale.

If corporate privilege holders are no longer keeping up their end of the bargain, then they most certainly should not be paid for it. We can argue at length in both directions on whether DRM will really work in practice and how well it might work; other submissions have done that already. The point is not whether DRM will prevent 100%, 99%, 50%, 10%, or 0% of copying against the privilege holders' lawful or unlawful wishes. The point is that by attempting to stop copying with DRM, corporate privilege holders have chosen to renege on their promise to accept private copying. Smith's point should be emphasized: works released under DRM must be ineligible for compensation under the blank media levy.

There is just one serious caveat here: corporate privilege holders should not suppose that they can buy legislative protection of DRM just for the price of the blank media levy. All the other arguments against DRM presented by Smith, by this author, and by hundreds of other Canadian citizens, still apply. The Smith proposal to exempt DRM-embargoed works from compensation under the blank media levy should be considered in addition to, not instead of, preservation of the right to circumvent DRM. If corporate privilege holders are as conscious of fairness as they claim to be, then they should certainly be willing to forgo the blank media levy for DRM-embargoed works; but they should not be allowed to claim that by doing so they then deserve legislative protection of DRM. Parliament must recognize that no matter what inducements corporate privilege holders may offer, it cannot protect DRM for Constitutional reasons, and should not protect DRM because that would harm Canadian policy goals. We must send a message that Canada's legislative body is not for sale.