ARCHIVED — A Chris Brand 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 Chris Brand received on October 19, 2001 via e-mail

Subject: Comments on comments on Consultation Papers on Copyright Reform

It is interesting to see the high volume of comments received late in September, and I appreciate your decision to extend the deadline for receipt of comments on those comments.

I've identified the commenter I refer to below by the date on your website and their name.

12 Sep - Rights Market
Personally, I believe that the existing tariffs on blank cassettes and CDs violate my right to a fair trial by effectively judging me guilty of copyright infringement, so I certainly oppose their extension into the realm of the Internet.

14 Sep - Canadian Association for Interoperable Systems
I found this to be a very thorough analysis of the invalid logic that the industries in favour of dramatic extensions to copyright law are using to justify their actions. In particular, "Assumption 5" notes that the claim that technological protections are easily broken is disputed by research that concludes that Public Key Encryption is unlikely to be defeated using current technology for the foreseeable future. This would seem to indicate that legal protection for technological measures would indeed be unnecessary if the industries in question were willing to develop suitable technologies. Of course, it is far cheaper for them to get the law changed to protect inadequate technological measures instead.

14 Sep - TransGaming
This is a good example of a new company doing something new which would be harmed by the proposed legal protection of technological measures. Another good example is frequently cited by the recording and movie industries themselves - Napster. They believed that they had a business model that would work. Unfortunately, they were shut down before their belief could really be tested. Amending Copyright legislation to protect existing business models to the detriment of new ones is correctly identified in the Consultation Paper as not being a goal of the process. It is also worth noting that Napster was shut down under existing, pre-DMCA, copyright law, which is another argument that copyright holders already have sufficient legal protection.

14 Sep - Canadian Motion Picture Distributors Association (CMPDA)
In the first paragraph numbered 3 and the second one numbered 10, they make the point that "market forces are sufficient to maintain the availability of public domain works for which there is a demand" and use this to conclude that exceptions to legal protection to technological measures are unnecessary. I have two objections to this. The first is that the purpose of copyright legislation is to encourage works to be created in order that they eventually enter the public domain. Whether there is "demand" for these works is irrelevant. The public has effectively paid for them by granting the creator a limited-time monopoly on their distribution. My second objection is that the CMPDA's argument here contains a fallacy even if you accept their distortion of the public domain concept. They argue that works without Technological Protection are cheaper to produce than those with it, and that this will ensure availability. The idea that it would be cheaper to produce a version without protection is not valid for prod ucts that have entered the public domain, primarily because the work itself already exists, complete with copy protection. In fact, if the CMPDA has its way, it would be illegal to copy such a protected public domain work in order to create an unprotected copy for distribution. This destroys the public domain - in effect, nothing would ever enter the public domain. While I'm sure this would make the CMPDA very happy, it would certainly change the balance of existing copyright legislation.

14 Sep - CANCOPY
CANCOPY notes in a section titled "Piracy in all Canadian homes" that paper books are being scanned and digitally reproduced and uses this fact to justify legal protection for technological measures. I fail to see how existing laws are insufficient to make this illegal or how legal protection for technological measures would help prevent this activity.

14 Sep - Canadian Recording Industry Association (CRIA)
They state that piracy costs US$4.2 billion. This is, of course, only valid if you accept their pricing for CDs, etc. If CDs were to cost, say $1, not only would there be less incentive for piracy, the cost of any remaining would be less. It is clear that there are methods to deter piracy other than decreasing the rights of Canadians. (The Association for Computing Machinery (ACM) had an article on this in the last year). IT is also worth noting that the manufacturing and distribution costs for a product distributed over the Internet are significantly lower than that for CDs, for example, so the per-unit cost should be significantly lower which is in itself a deterrent to piracy.
They also note that "no technological measure can permanently resist deliberate attacks". It is important to note that such a measure need not resist permanently, only for the duration of copyright, and that research shows that technologies can resist attack for substantially longer than that. Of course, these technologies cost money to research and implement. I do like their point that "Toms are the equivalent of walls, doors and burglar alarms" which I completely agree with. I would add the note that there are plenty of situations where I can legally bypass or reverse-engineer walls, doors and burglar alarms. In fact, bypassing these protections is only illegal if I do so in order to break a law. They are also correct to state that "allowing exceptions to protection of Toms is similar to allowing someone to break the lock of a safe" something which, again is perfectly legal if it is legal for me to open the safe.

14 Sep - Canadian Association of University Teachers
This is an excellent paper, as one would expect from a source of such renown. In particular, CAUT makes an excellent point about extending the duration of copyright : "Even the staunchest defender of creators' rights cannot argue that this extension will encourage creativity. Rather, the "life plus seventy" agenda is simply about increasing the current profits of large commercial rights holders. Moreover, it demonstrates a fundamental hypocrisy - backers of the scheme will remain free to delve into the past to enhance their own content, but writers and artists in future generations will have this same opportunity sharply curtailed. That the departments can float the possibility of "life plus seventy" without commenting on the symbolic and practical implications of such a move is disheartening and raises serious questions about their concern for the larger public interest."

16 Sep+ - ACTRA
ACTRA notes that "it is only a matter of time before films, television programs and new media material is provided to consumers via electronic networks". They appear to believe this to be the case regardless of whether copyright law is modified or not. This would seem to indicate that the governments aim of encouraging such activities is bearing fruit without the need to change copyright law.

16 Sep+ - Canadian Copyright Institute
They claim that Technology Neutrality is not necessarily a desirable goal and use as an example the difference between making a copy of a book available to the public on a bookshelf and making a copy available on the internet. I don't understand the difference here - in both cases, only one copy exists and it's available to the public. In both cases, the public could illegally make additional copies. In both cases (at least with the majority of Operating Systems), only one user can read the book at any given time. The only differences I can see is that making a copy of the one available on the internet is faster than doing the same with the one on the bookshelf and that it may take longer for a reader to get access to the one on the bookshelf. A difference in speed is not a fundamental difference.

16 Sep+ AOL-Time Warner
Paragraph 2.12 states that concerns about negative affects of legislation should not impede the introduction of such legislation and argues that "the vast majority of right holders are interested in maximizing the availability of their works", which is, of course, only true while they continue to hold the rights to those works. They have no such interest in the availability public domain works of which they once held copyright. In fact, it's likely that they would prefer to limit the competition implicit in such works. This is why it is vital that "fair dealing" rights be preserved and protected.
Paragraph 2.14 implies a problem with "relegating rights holders to the sole remedy of locating and suing individuals who circumvent, rather than those in the business of making widespread circumvention possible." This is analogous to a complaint by the police that they can only pursue people using screwdrivers to break into cars rather than businesses manufacturing screwdrivers - of course you should only be able to pursue people who are infringing on your rights and not those who provide tools that can be used to aid them in doing so.
Paragraph 2.15 claims that the implicit "right of access" of such protection is analogous to the physical access required to read a book or watch a movie. The fundamental difference here is that when I purchase a book, I am free to use it in (almost) whatever manner I choose, such as lending it to a friend, selling it, cutting it up or donating it to charity. These are all things that could, and probably would, be prevented with digital media if the law allows them to do so.
Paragraph 2.17 states that exceptions to a law prohibiting circumvention of technical measures should be clearly enumerated. I fail to see any legitimate reason why this is necessary when we already have copyright law that clearly enumerates the occasions in which copying a work is illegal, whether the copying is facilitated by the circumvention of technological protections or not.
Paragraph 2.20 again fails to recognize the effect of the public domain. the rights holders have no interest in maintaining accurate rights management information after these rights have expired. In fact, it is in their interest if the rights management information indicates wrongly that the work is still under copyright.
Paragraph 3.7 implies that the Canadian Court system is unable to recognize the need to act quickly in cases of copyright infringement involving the internet. Personally, I have far more confidence in this than in the ability of content owners to avoid forcing the removal of non-infringing material. Again, I believe that there is no reason to circumvent "due process" and my right to remain innocent until proven guilty. I also note that AOL-Time Warner oppose making ISPs monitor the content that their users are making available. In such an environment, the time between infringing material becoming available and the rights holder noticing it is likely to be significantly greater than the time required for the rights holder to obtain an interim court order removing the material. Paragraph 3.13 appears to recommend that rights holders should be able to obtain customer information from ISPs without the need for a subpoena. I am unclear on why rights holders should have these powers and what would prevent their abuse. I am also very concerned about the effects on privacy and freedom of speech that might result should this be implemented.

16 Sep+ - Directors Guild of Canada
In answer to the Departments' question about whether legislative intervention is appropriate at this time, the DGC argues that "Protection of TPM will encourage the development of technological protection measures" when experience in the USA so far has shown that one effect of the DMCA is to inhibit research in this area.

Several respondents note that changes to copyright legislation are necessary to ratify the WIPO Copyright Treaty. I firmly believe that if the choice is between ratifying the Treaty and implementing a DMCA-like law, we should definitely not ratify the Treaty. Rather than blindly following the herd, led by the USA, into ratifying the Treaty and so perpetuating the power wielded by Hollywood and its allies, Canada should be setting the standard for balanced copyright legislation.

I also noted that the following submissions were unavailable on the website when I checked :
10 Sep - Derrick White
14 Sep - IBM Canada
16 Sep+ - National Association of Broadcasters (NAB)
these links returned "page not found" errors at the time I tried to access them.

Canadian citizen, software engineer and educator,
Chris Brand