ARCHIVED — A James Fung

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 James Fung received on October 22, 2001 via e-mail

Subject: Comments - Govt Canada Copyright Reform, IP policy directorate

To Industry Canada, the Dept. of Canadian Heritage, IP Policy Directorate,
and other concerned agencies:

I am writing a reply comment regarding the comments made on Consultation
Paper on Digital Copyright Issues. I have read numerous comments, and
write here specifically regarding the points in the comments which discuss
fears about possible infringements of rights resulting from
"anti-circumvention" laws. Below, I will specifically make reference to
the comments of:
Itrat Kahn (http://strategis.ic.gc.ca/SSG/rp00610e.html)
Richard Akerman (http://strategis.ic.gc.ca/SSG/rp00610e.html)
Austin Hook (http://strategic.ic.gc.ca/SSG/rp00706e.html)
Mark J. McCutcheon (http://strategis.ic.gc.ca/SSG/rp00535e.html)
I am a graduate student in Engineering, and have had experience with the
technical nature of content protection.


If We Choose Protections, We Must Have More Protections, not Less:

I propose that the consultation paper's scope regarding
"anti-circumvention" is, currently extremely weak and ineffectual so much
so as to encroach upon the rights and values of Canadian citizens, which
is the source of the apprehension in many comments. By analyzing the
failure of the DCMA to adequately prevent many types of circumvention in
the United States, I will conclude that to be effective, any proposed
Canadian legislation must be given much broader powers and coverage in
order to prevent circumvention in such a way that will balance out the
interests of industry and public fair use.

The consultation paper correctly identifies a spectrum of possibilities
regarding anti-circumvention, ranging from a "form of prohibition (that)
would be to restrict specific acts" to "the most extensive form of
prohibition (that) would entail a prohibition on circumvention devices in
addition to a prohibition on act". I will discuss the latter case, as
many comments have focused on the prohibition of devices though the
proposed extensions could be similarly applied to the former case.

Basically, the definition of circumvention technology must be extended to
include those technologies and practices which circumvent Canadian rights
to media for fair use. Likewise, rights management and content protection
must include technology which protects Canadians' rights to fair use.
The motivating principle is that all Canadians should be recognized as
stakeholders in as much as their rights to fair use are at stake, and thus
their rights should be held in equal regard to the rights of copyright
stakeholders.

Specific Cases:

The proposed legislation has a goal of being "forward thinking".
Consider the extending situation regarding high-definition television
(HDTV) into a situation where it is encrypted to protect its content.
Currently, in the US it is illegal to manufacture equipment to record HDTV
signals. However, it is legal in many situations to record HDTV signals,
just as it is legal to record TV signals onto VHS tapes (such as for
personal use, i.e. taping a program to watch it later). Under current
DMCA anti-circumvention laws, producing technology capable of decrypting
the HDTV signal for recording would be made criminal, even though the act
of recording is legal. Thus, any attempts to decrypt the HDTV signals for
legitimate use would be illegal. In this way, the current
anti-circumvention legislation allows for the manufacturers to circumvent
the rights of consumers. I propose that the rights of the consumers must
be held with equal regard in the proposed legislation, and thus such
situations could be avoided. Thus, the practice of encrypting HDTV
signals so they cannot be recorded must be considered a circumvention
technology (since it circumvents people's rights), and must thus be
considered criminal under the anti-circumvention laws.

Other examples are readily available. Single use "self destructing"
media, encrypted electronic books encroach upon many people's
rights. For instance, if a technology decrypts electronic book software so
it could be easily interfaced and be compatible with speech software
(suitable for the blind to listen to the book) or braille output, then
that technology must be protected under anti-circumvention laws (since the
encryption process unfairly excluded the rights of disabled).

Moreover, if a technology attempts to obscure or inhibit reverse
engineering for compatibility purposes or other fair use, then that
technology must be considered "circumvention" technology. It attempts to
circumvent legitimate use.

Consider technology which inhibits copying of media for backup and
archival purposes, the use of the media for scholarly inclusion in
research or scholarly citation or even forms of satire, or copying of the
media if it were found to be evidence in a criminal investigation.
Technology which encrypts or prevents copying of media for such purposes
would circumvent the rights to use the media for fair use. Thus such
encryption must be considered circumvention technology and such technology
must be made criminal by extending the definition of "circumvention"
technology to include those technologies which inhibit fair use.

Thus, the encrypting of the electronic book, or electronic media must be
considered a circumvention technology and made criminal.

Furthermore, equal regard for consumers' rights will be achieved by
extending definition of "content protection", or DRM technology in the
existing proposal. I would propose that any innovative new technology
which could allow for fair use of media must be considered as "content
protection" technology because it protects citizens' rights to fair use of
the content. For instance, if some electronic media were encrypted and
could not be interfaced properly with technology for disabled, or the
encryption prevented any form of fair use, then any technology which
disabled or bypassed the encryption would be considered "content
protection", as it protects fair use of the content. The proposed
legislation must extend its definition of "content protection" technology
to include such a decryption technology, and assure its legality.


Protecting Research:

In order to provide adequate and effective content protection (by any
definition), the ability to research it must be protected. It is well
known in the computer security community that the best protection
technology is that which is open to scrutinization and peer-review by the
community. Thus, researchers of content protection mechanisms must be
free to disseminate knowledge about content protection scheme and about
potential security flaws. The whole of the research community and
technology sector, and indeed private citizens must be free to analyze,
test, and reverse engineer content protection systems. In this way,
copyright stakeholders will benefit from the best, most secure and robust
protection possible, while the rights to research the technology are
protected. This is a possible solution to address the comment by
Richard Akerman (http://strategis.ic.gc.ca/SSG/rp00610e.html), and Itrat
Kahn pointing out that researching flaws must be recognized as legal and
productive research
(http://strategis.ic.gc.ca/SSG/rp00634e.html). Furthermore, comments by
Austin Hook (http://strategis.ic.gc.ca/SSG/rp00610e.html) and
Mark J. McCutcheon (http://strategis.ic.gc.ca/SSG/rp00535e.html) discuss
the problem of enforcing law regarding "technically weak but legally
protected" (McCutcheon) systems. Companies who wish to deploy content
protection which affects the public must be held up to a similar standard
as the rest of the scientific community and Professional Engineering
community, and allow open peer-review of their work. In this way, we can
prevent deployment of poor protection systems so we "don't substitute
bad law for good programming" (Hook).


In Summary:

Consider existing typical definitions of "circumvention". Circumvention
technology is typically considered any technology which could possibly be
used to circumvent publishers copy protection/rights management. Since
existing Canadian rights must be considered as important as the interests
of copyright stakeholders, "circumvention" technology must be extended to
include any technology which can be used to prevent fair use.

Consider a definition of "content protection". It is typically defined as
technology which prevents copying to protect the rights of copyright
stakeholders. Again, if Canadian's rights and values are to be held in
equal regard, a forward thinking policy would extend the definition of
"content protection" to include any technology which could potentially be
used to promote fair use.

If copyright stakeholders and industry choose to pursue such laws, the
government must seek to apply them evenly and fairly, and thus must
properly construct the laws as outlined to equally recognize legitimate
Canadian rights and values, expressed by the many comments from private
citizens.

It is clear that this will create a far more fair and balanced
legislation. The stake of the public in protecting its rights are thus
held in equal regards to the rights of the copyright stakeholders. Such
extensions could agree with international requirements for such laws, as
well as demonstrate the commitment of Canadian industry, government, and
politicians to preserve the rights of Canadians. In this way, industrial
interests would be served by the exisiting proposed legislation, and the
further strengthening of the powers of the legislation would also protect
the public, which of course is a goal industry, government and private
citizens all support.

James Fung