ARCHIVED — A Kyle Lahnakoski

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 Kyle Lahnakoski received on October 22, 2001 via e-mail

Subject: Copyright Reform Reply

This is a response to submission made by the Canadian Motion Pictures Distributes Association (CMPDA) received by Departments of Industry Canada on September 14th. A link to the submission can be found at http://strategis.ic.gc.ca/SSG/rp00007e.html

Overview

There is a lot of language in the CMPDA submissions with respect to "WIPO Treaty adherence". The language implies that the WIPO Treaty is some higher law that must be followed, when in fact the WIPO Treaty is just an agreement.

Let me explain the importance of the WIPO Treaty in more detail. An agent is not the same as its master. As an example we see that both the police force and the legal system are agents of the government. There have been many situations where these three bodies disagree on appropriate action. This stems from the differing objectives and priorities of the three groups. Agents are in many ways independent of their master because they have different objectives.

The delegates that signed the WIPO treaty did so as an agent of the government. We can easily imagine that the agents responsible for negotiation and (superficial) signing of the treaty would have different objectives than the master government it works for. An obvious objective would be to get to an agreement so that there would be something to sign. Even this simple objective can result in a signed treaty that does not necessarily reflect, and in fact many not at all reflect, the desires of the master country. With this understanding WIPO has always provided opt-out language in all their treaties.

It is reasonable for the WIPO treaty to be signed by non-elected delegates, yet still have the elected officials reject the WIPO agreements. This is what is happening now. Do Canadians submit to the agreements of a non-elected body, or do we go back to the WIPO process with a greater understanding of Canadian priorities?

Paragraph 4, Page 2

Have only read the fourth paragraph and it is obvious that the objective of the CMPDA submissions is to rewrite fair use to mean no-use. The objective of the CMPDA is to support the profits of its member companies no matter the cost to society or creativity. This is understandable because the CMPDA represents profit seeking companies who, by Canadian and U.S. common law, must put shareholder and profit concerns above the betterment of society.

Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright (Paragraphs 13 to 26, Starting on Page 3)

These paragraphs reveal the CMPDA's desire to keep ISPs liable for third party copyright infringement. The advantage to such a strategy is based on two observations. The first is that an ISP has the power to silence any third party using its services without just cause. The second is that ISP's are profit-seeking entities, and as such are not willing to reduce profit by protecting freedom of expression for their customers. The CMPDA wants to take advantage of these two features to silence any objectionable parties with something as simple as a notice and takedown letter. The ISP will be forced to comply, or risk a costly legal battle. Forcing ISP's to be liable for third party content will allow the CMPDA to shut down any web site that may contain legitimate complaints against their members.

The CMPDA does not want to engage copyright infringers directly because there is greater risk dealing with legitimate freedom of expression issues. Increased risk translates into reduced profitability. A submission based on a profit motive should have no place in this copyright reform forum.

As detailed in my original submission, ISPs should NOT be liable for third party copyright infringement.

Exempt Uses, Paragraph 13, Page 7

CMPDA submits that there is no justification for creating an obligation to provide access to copyrighted works. If this is the case then I submit that a copyright solution is not what CMPDA wants. If the CMPDA desires to distribute works using technological protection, despite fair use and copyright expiration, then that same technology can also act as a gatekeeper to a contract. Contract law can be used to limit legal copying to only what is expressly provided by the technological protection.

This contractual technology is the same as in software licensing through the use of click-through licensing agreements. I believe there is a lot to be learnt from the software industry that uses a combination of contract and copyright law to control distribution. The software industry has proven the success and profitability of using contract law to further protect their copyrighted works. Specifically, Microsoft is an excellent testament to the fiscal success of this scheme.

Paragraph 35, Page 9

The CMPDA would like the lawmakers to ignore privacy issues when considering changes to copyright law because "it is not their job". I disagree. It is imperative that the lawmakers not enact laws that would be untenable in the member provinces. Such an inconsiderate form of law making would only serve to consume precious time and push a burden of interpretation to the courts; essentially achieving nothing.