News

My Fair Copyright for Canada Principles

With the continued interest in Canadian copyright reform – the Fair Copyright for Canada Facebook group has grown to over 38,000 members and the local chapters across the country are gaining significant momentum – the most frequently asked question I receive is "what do you think fair copyright reform looks like?"  In other words, we know that tens of thousands of Canadians oppose a Canadian DMCA, but what kind of reform would or should they support? 

Many groups have already responded to this question – librarians, teachers, universities, musicians, artists, consumer interests, and some large businesses opposed to a Canadian DMCA among them.  Although the optimal approach would be to launch a public consultation on the issue, there is reason to doubt that the government will do so.  In that case, I would point to eight key principles that should be addressed to maintain a balanced, fair approach to Canadian copyright law. 

 

Take the Copyright Pledge.  All Members of Parliament should be comfortable with the principle that they will not "introduce, support, or endorse any copyright bill that, either directly or indirectly, undermines or weakens the Copyright Act’s fair dealing provision."  Fair dealing, which forms a crucial part of the copyright balance, is critically important for education and free speech and deserves full support from politicians regardless of party affiliation.

Anti-circumvention provisions should be directly linked to copyright infringement.  The anti-circumvention provisions have been by far the most controversial element of the proposed reforms.  The experience in the United States, where anti-circumvention provisions effectively trump fair use rights, provides the paradigm example of what not do to.  It should only be a violation of the law to circumvent a technological protection measure (TPM) if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing or private copying purposes.  This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the World Intellectual Property Organization’s Internet treaties and avoid some of the negative "unintended consequences" that have arisen under the U.S. law.

No ban on devices that can be used to circumvent a TPM.  Canada should not ban devices that can be used to circumvent a TPM.  The reason is obvious – if Canadians cannot access the tools necessary to exercise their user rights under the Copyright Act, those rights are effectively extinguished in the digital world.  If organizations are permitted to use TPMs to lock down content in a manner that threatens fair dealing, Canadians should have the right to access and use technologies that restores the copyright balance.

Expand the fair dealing provision by establishing "flexible fair dealing."  Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent). The Supreme Court of Canada has already ruled that Canada's fair dealing provision must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting) that renders everyday activities such as recording television programs acts of infringement.  The ideal remedy is to address other categories such as parody, time shifting, and format shifting by making the current list of fair dealing categories illustrative rather than exhaustive.

Establish a legal safe harbour for Internet intermediaries supported by a "notice and notice" takedown system.  The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world.  Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats.  Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners.  The ideal Canadian approach would be a "notice and notice" system that has been used successfully for many years on an informal basis.

Modernize the backup copy provision. As part of the 1988 copyright reform, Canadian copyright law was amended to allow for the making of backup copies of computer programs. In 1988, backing up digital data meant backing up software programs.  Today, digital data includes CDs, DVDs, and video games.  All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional.  From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment. "Modernizing" copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

Rationalize the statutory damages provision. Canada is one of the only countries in the world to have a statutory damages provision within its copyright legislation.  It creates the prospect of massive liability – up to $20,000 per infringement – without any evidence of actual loss.  This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for one peer-to-peer file sharing defendant and leaves many defendants with little option but settlement.  Before Canada faces similar developments, we should amend the statutory damages provision by clarifying that it only applies in cases of commercial gain.

Include actual distribution in the making available right.  The new bill will likely include a "making available" provision that will grant copyright holders the exclusive right to make their works available.  While there is reason to believe that Canadian law already features a making available right, any new provision should require actual distribution, which ensures that liability only flows from real harm.

There are many other issues worthy of consideration (private copying and crown copyright among them), which is why a broad consultation is needed.  In the absence of a consultation, however, Canadians should be writing to Industry Minister Jim Prentice and to their local MP to urge them not only to drop plans for a Canadian DMCA, but to also introduce a positive agenda that features a genuine made-in-Canada copyright solution.

44 Comments

  1. Would it be useful to also discuss copyright terms? I guess there is no way to ensure some future government won’t extend them, but right now they are so arbitrary I don’t have any confidence they’re set anywhere near the best compromise. I can’t even begin to guess how to set them fairly, it would be interesting to hear opinions.

    I would actually be in favour of having to register copyrighted works, within say ten years of first distribution, and at least once every ten years after that to maintain rights. At least, if copyright terms are going to remain very long in comparison to human life spans, I would be in favour.

  2. Keith MacDonald says:

    A sane and comprehensive list of guiding principles, Michael. It seems to balance the interests of rights holders and consumers. V. Canadian approach. This is definitely what we should be aiming for.

  3. R. Bassett Jr. says:

    Michael Geist Wrote:
    “The ideal Canadian approach would be a “notice and notice” system that has been used successfully for many years on an informal basis.”

    For those of us who are unclear on what “notice to notice” means, could you please explain this concept in greater detail. Thank you.

  4. Michael Geist says:

    Notice and Notice
    Is explained here

    [ link ]

  5. Darryl Moore says:

    TPM and authors
    All very good reforms Michael. But I would add a little more to one as well as add another reform all together

    1) Protection from TPM. Now this may more appropriately be addressed in the Competition Act, but perhaps it can be addressed here also. There should be an outright ban on the use of technological protection measures to skew free markets. For example the CSS encoding which is used on DVDs to create multiple artificial geographical world markets which are incapable of competing with each other. BluRay is going to have the same thing. We should, as I believe Australia has done, ban the use of TPM in this case and require all player to play media from all regions.

    2) Copyright Authorship. Currently it is impossible to determine the author of many collaborative works and hence it is impossible to determine when these works become available in the public domain. We should change our terms of copyright to be date of publication + 50 year rather than date of authors death + 50 years. I believe this still meets the terms of BERNE though in an ideal world we’d jettison BERNE and start again.

  6. Daryl Moore and 300 Baud both have good
    about the end of copyright. Perhaps adopting a merging of the two would be useful. A work would have a fixed date of expiry based on the last date of registration, only authors of record could register. If not registered, then it is from first publication.

    One problem I see with the “death + x years” is determining the end for a prospective user. You need to find out if the person is alive or dead, and if declared dead, the date of their death. A registry of this sort would simplify the matter considerably, at least for Canadian registered works.

    I noted authors of record above, as I am not sure what rights a “ghost writer” has with respect to a copyrighted publication.

  7. Daryl – not sure how you can enforce #1, your TPM suggestion and there might be situations where it is valid. There are after all plenty of barriers to free markets, some erected by our government, others by ability to pay. But your #2 suggestion is worth looking at, though really its more of a technical issue than a principle. Often it’s impossible to figure out when copyright ends – take a newspaper, for example. But, for this to have chance of flying, there’d have to be a fair way of deciding what’s a collaborative work as otherwise people may refuse to include their work in them.

  8. Sookman smackdown on Geist
    Anyone had a chance to see Barry Sookman\’s point-for-point takedown of \”Dr.\” Geist\’s Facebook page on the e-com listserv? Lots of lemmings here, so I assume you won\’t bother finding it. It might shake your belief structure in some way.

  9. Is there any way that copyright can be made non-transferable? A way to make it so that it is legally impossible for artists to give away (trade-away) their copyright. Meaning publishers of works would be forced to become licensors of works and not have the de facto rights of creators. If rights are non-transferable the term should sort itself out as well, ie the right exists so long as there is a person to hold that right.

  10. *HUGE rant deleted*

    Copyright reform is going to be one of the most difficult issues to find a happy medium on that we are going to face. How long it has taken, and how far technology has advanced is only compounding the issue.

    Moving along, what about some sort of provision that would make the copyright holder be responsible for an individual\’s loss for any false accusations as well as making it the responsibility of the persecutor to prove that the defendant caused damage/loss in some way? You know, that whole \”innocent until proven guilty\” thing.

    In the \”fight\” for fair copyright reform, too many people are afraid of \”I won\’t be able to download music for free anymore\” and not enough people are considering that the laws and government are supposed to be for the people, and a representation of the people…all people…and that we should be able to have our voices heard at all times. Not just \”I think this politician is the lesser of the two evils, so I\’ll vote for them\”. We should be able to be more involved in creating the laws and rules that shape our lives. That should not be a privilege of the rich companies. I personally would rather have corporations able to, and actively, controlling what I can and can\’t do with items that I have purchased from them than to have my government shaping my life without my input.

    And that, my friends, is my $0.0194834 USD worth. (go Canadian dollar)

  11. Where is Sookman?
    @daman;

    I went looking, several ways, but I can’t find anything recent from Sookman. Then I went looking for the e-com listserv, and didn’t find anything that looked like what you seem to be suggesting. Cutting it down to just searching on ‘facebook sookman geist’ only returned 21 hits, none of which are Sookman discussing Geist and Facebook.

    Is this is a private communcation you are referring to? Or can you at least include a link, please?

  12. Zro, this is just childish. Trust corporations? Read today\’s Globe about how drug cos suppress negative trials. And we elect politicians (it\’s called democracy) to make decisions, not hold a referendum non-stop. If we don\’t like their decisions, we elect different ones.

  13. Don\’t see how politicians can be comfortable with the fair dealing pledge if there is no agreement on (a) what fair dealing is and (b) what is undermining or weakening. That does rather depend on where you stand on these issues. And with today\’s government, MPs don\’t make these decisions!

  14. This Sookman?
    @Chris S

    Haven’t been able to find what daman was referring to on the ‘e-com listserv’ but I did find this, [ link ] , which I suspect will be in a similar vein.

    I don’t usually feed the trolls, but I think I will have to respond to this one (Sookman, not daman) on my own site.

  15. I never said anything about “trusting corporations” I said I would accept what they say I can and can’t do with things I buy from them. If I don’t like the restrictions they put on the use of the product, then I don’t/won’t buy it.

    The new legislation that may (or may not now) be introduced was dreamed up by two people that may have been influenced by a large corporation (and one based in the states). So if these large corporations can influence the laws governing what I do, then why can’t I also have that same privilege?

    Given the HUGE outcry of the public on this issue, I think I’m not the only one who wants their voice heard on this.

    As for the “if we don’t like their decisions, we elect different ones” comment, sorry, but I would rather avoid a situation than let it happen and hope that someone else might fix it later. I would expect that the politicians that are voted into office are there to observe the public interest…if this is not the case, why can’t we get them out of office before they do the damage instead of after? This is a legit question, I don’t know why we can’t have Mr. Prentice booted from office (or potentially booted) before putting in something like this.

  16. Anything we can do about this kind of thing? Looks like a way to clamp down on downloading, to me!

    NEW YORK – Time Warner Cable Inc said on Wednesday it is planning a trial to bill high-speed Internet subscribers based on their amount of usage rather than a flat fee, the standard industry practice.

    The second largest U.S. cable operator said it will test consumption-based billing with subscribers in Beaumont, Texas later this year as a part of a strategy to help reduce congestion of its network by a minority of consumers who pay the same monthly fee as light users.

    The company believes the billing system will impact only heavy users, who account for around 5 percent of all customers but typically use more than half of the total network bandwidth, according to a company spokesman.

  17. Not how it works in a democracy, Zro.

  18. Where is copyright length?
    I have heard of reducing copyright terms from 70 to 50, 30, or even 7 years, but setting fixed limit is missing the whole point of copyright reform. Given we are living in a world where everybody has a digital equivalent of printing press, any arbitrarily chosen length is likely to be rendered obsolete. Furthermore, time length system assumes every piece of copyrighted item costs the same to produce, which is definitely far from the case.

    A fair copyright term should be defined by the cost of producing the material. Furthermore, to avoid copyfrauds, copyright holder must register the works to be eligible for copyright protection, and the protection ends as soon as the cost of producing the work is recovered. If an someone commits copyfraud, the conviction should be made criminal, and the works for the convicted receives lower or no protection.

  19. So…are you allowed to make a profit on producing a work? And if you write for a living, how does this work? There may be room for debate on the term of copyright but this doesn’t seem a very helpful suggestion.

  20. Length
    I’d think a good length for copyright is short enough that, say, TV you enjoy in your youth is out of copyright when you retire. 50 years from date of creation would be fine for that. That gives more than enough time to earn money from it, and has a definite date so you can plot exactly when it falls into public domain.

    As for DRM – I don’t think there should be any laws criminalizing the removal of DRM, not just an exception for non violating reasons. If there’s a prosecution it should be for the copyright violation, not the removal of a lock.

  21. Democracy
    What Zro wants is a true democracy. What Canada, and most \’democratic\’ countries, have is a republic. While it does make it difficult to remove politicians before they do damage, the republic structure is important for guaranteeing limits of governmental action.

  22. Michael,

    you always write great stuff. I think even slashdot recognizes your good logic from time to time. I can only hope there is less corruption in Canada than the US, where things being logical is unfortunately and commonly why they fail.

    With that said, I hope this works. Your principles are 100% accurate for this!

  23. I am a Canadian currently in custody in the USA. I was charged with copyright infringement. Downloading movies and such. I have been forced into pleading guilty because if I didn’t I would face 8 years in jail.

    I am currently waiting to get sentenced. If anyone knows of good lawyers in California for this type of crime please post their names.

    All the help I can get would be greatly appreciated

    Thanks in advance.

  24. When one is in another country than their own, one is obligated to observe the laws of the country they are in. Perhaps next time you will not choose to be ignorant of the consequences of breaking local laws.

  25. I would be so on board with the sort of changes to the copyright act that are being proposed here, words fail me… except for one thing, and that is on the last point that Mr. Geist mentioned. I think it is counterproductive trying to draw some distinction between distribution and the act of making a copy available (especially since in some cases the evident purpose could be *OBVIOUSLY* illegal, but the hands of law enforcement would remain tied until evidence of distribution is actually seen). Instead, I think that with regards to whether or not a copy of a copyrighted work should be considered an infringement, one should simply examine what the purpose of the actual copy was. To some extent, that involves the intent of the person who made the copy… that is, considering whether or not whatever happened with the copy that was made done with any participation or willful consent of the person who made the copy (so if somebody breaks into your home and steals your backup CD collection, you don’t get nailed for copyright infringement by virtue of distributing it to the thief). The remainder of determining the purpose simply looks at the circumstances surrounding how the copy actually was used… so if the copy was placed in a computer directory that the owner had not ever willfully shared with anyone else, nor willfully divulged information to anyone else that would enable them to access it, then the purpose of that copy should be considered for private use. If it had been willfully placed in a shared directory, then the purpose should be considered to be for non-private use. The lines may get a little blurry with regards to whether or not a person actually knows what directories on his or her computer are shared, but I would make it requirement that any computer owner assumes full responsibility for being aware of that information (or else some other person must be willing to assume such responsibility on their behalf), to the extent that they are aware of the programs that are installed on that computer (so if, hypothetically, a trojan p2p program was present on the computer without the owner’s knowledge, he or she would not be directly responsible for the activities caused by the trojan until such time as the trojan’s presence became known to the computer owner, at which point it becomes the owners responsibility to correct the issue within a reasonable time period, that should be no longer than a couple of weeks from the date of being made aware of the issue). Whether or not the software documentation provides this information to the user should not be a factor in whether or not they ought to know this information. I would maintain that they are still responsible for discovering that information. If a computer owner is too computer illiterate to know this information, and no other person is willing to accept responsibility for how the computer gets used on their behalf, tough luck. If I seem unsympathetic, bear in mind that this isn’t even going to be an issue unless a person has committed copyright infringement anyways.

  26. No copy protection from derivative Public domain works. This is where the perpetual copyright comes from. If I photograph a centuries old book I should not be able to claim copyright of those pictures.

    Once in the Public Domain always in the public domain. Shorten the copyright time to at least most humans lifetimes like 50 years max. No being able to use material from the first and second world war is not saving anyone. You go find that guy on the beach that took this picture.

  27. I forgot one. No retro-activity for copyright law changes. If I make something and the copyright term when I make it is 50 years I agree to that. I don’t want somebody coming long after I’m dead a extending it forever. It makes it impossible to figure out if the copyright term is still in effect.

  28. Schrodingers copyright says:

    I\’d just like to point out that the region coding is one way someone can tell counterfeit dvd\’s from legitimate ones, yet the counterfeit stuff still finds it\’s way on to amazon.com/.ca because there is some kind of demand for it, caused by the delaying release worldwide.

    If we start moving away from value placed on the media and copy control measures and instead place the value on the content and licensing, then money would be saved. Why would you want to wait several days and pay dozens of dollars in shipping when you can pay the company directly to watch it immediately? This is why peer to peer sharing still dominates other forms of internet purchasing, because the studios got so wrapped up in trying to force DRM technology that the customers didn\’t want, and/or sueing the customers that (and you can see this quoted all over canadian blogs) people are seeking out the unauthorized copies, so they don\’t have to spend their own time circumventing the DRM to transform it to whatever device they want to use.

    For those that don\’t want to read what I just said:
    Spend 2 weeks waiting for your dvd by mail
    spend 5 days waiting for your dvd by courier
    spend several hours shopping around for that dvd
    spend a few hours transforming that dvd into whatever format you are going to watch it on
    spend the lenght of time to watch it in it\’s original form barring your TV or DVD player refusing to play because it doesn\’t meet the DRM\’s requirements.
    or download it already in the transformed format off the net in less time than it would take to watch it.

    My ideal situation would be to Download \”Master Quality\” from the source and have the software on the DVR or computer downsample it on the fly to whatever device I want to watch it in, and still have the master copy as the backup somewhere in my archives in case I get better equipment later to watch it on [or the machine is stolen or broken, etc.] Cut out the pirates, cut out the bootleggers, cut out the expensive drm, hell I\’ll gladly subscribe to next generation internet provided by local ISP\’s just to be able to buy such things off the net.

    I have put off buying any portable video player thus far because there isn\’t a way to convert my blueray movies into something I can watch during the commute to work.

    This goes back to the \’making available\’ point stated in the article, if the item is not available to begin with from the source, people will goto unofficial sources, regardless of the legality. You\’d hear this argument pretty frequently from teens and college students who watch anime. They think they are watching all this anime for free because it\’s unlicensed, and thus not available in Canada. But the actual fact is that it is still the same wholesale copyright infringement as ripping a new CD and posting the mp3\’s of it on the internet. If the Japanese company could make the anime available for purchase directly on the internet by download, they remove their justification for pirating it, and the subtitling groups can still create subtitles that work against the original source. Maybe even there is a possibility of a legitimate derivative work (the subtitles) being licensed by the source company (for relicensing to viewers?) Same for games and software. A localization competitive market is possible.

    But by far the thing that needs to happen, is that copyright law must be taught to children before they get into piracy, just like we teach kids not to get into drugs. The average adult has a very naive understanding of copyright. Perhaps if they knew better…

  29. Punishment for copyright abuse
    How come no one talks about penalty for those who try to create overreaching copyright that would undermine civil liberty. Since these are hardly any penalty for DVD manufacturers to put in anticompetitive region lock, it is up to us to fight back by proposing stiff penalty for those who even lobby for DRM. It is the only to teach the entertainment industry that their evil ways will not be tolerated.

  30. Forgot one more. A Artistic interpretation provision where I can make cartoons out of copyrighted works and get away with it.Al Yankovic Idea. Satire.

    Just everyone remember we all copy copyrighted material every single day, day in day out. If you click a link on the web you are making a copy of a probably copyrighted work. Most stuff on the web is copyrighted. Picture this: Star trek the space ship running under all these silly laws. How silly that would be. Capitan: “Gordy. see if you can figure out some way of jamming the signal.” Gordy “Sorry captain that idea is copyrighted but XYZ company star date 201417 we need to get a license.: Captain “Well then photon torpedo it. Riker “Sorry captain the photon torpedoes can only be used in Asia.” Captain “Asia?” “What the hell is Asia?”

  31. Imagine
    A world with no copyright law. Imagine how far we would get and how fast, A world built on sharing and adding to the collective knowledge of the planet. Now Imagine a world of perpetual copyright. That’s where we are right now. The terms are so long now the ideas are lost forever. We can’t learn from the past and add to it because it’s copyrighted. All our work created since 1929 that is copyrighted is still copyrighted. If i make a calender of Ford Hot Rods I should be allowed. If I take a picture of the pyramids I should not have to pay a copyright. If I take a picture of the last supper I should not have to pay a copyright. We have a long road ahead.

  32. Copyright law is wrong. Anytime someone makes something, a copy or not, they are adding to the GNP or simply “things made”. That is a good thing. Gatekeeping as a way to make money, is NOT productive, although it may be the only way some people can manage.

  33. Accelerando
    Talking about future there is a novel by Charles Stross about future, high tech and copyrights downloadoble for free here [ link ]

    “Russian gangsters from New York bought the recording cartels a few years ago, you know? After the rights stitch-up fell apart, and the artists all went on-line while they focused on copy prevention technologies, the Mafiya were the only people who would buy the old business model.”

  34. grunt
    see the facebook page for my off-the-wall comments… errr… except I TRIED to get them
    on the wall.

    the current gov’t is bought and paid for, in my opinion. taking it out of ‘em in votes is best.

    anyone got a good way of convincing que that THIS drm will destroy them?

  35. R. Bassett Jr. says:

    Perspective…
    “If I have seen further it is by standing on the shoulders of giants.”
    –Isaac Newton, Letter to Robert Hooke, February 5, 1675

    Where WOULD we now be, had that sentiment been treated then as it is being treated now?

    That was a very good point, made above, regarding punishment for those who lobby to curtail the freedoms of the people of this nation. I’d like to suggest that we open a cute little winter camp on Victoria Island [ link ] , where offenders can get lost in the icepack for a few months of quiet contemplation.

    Seriously though, we have kids coming back to this country in coffins, after defending the freedom of another country; Our entire solar system will likely be torn apart in 25,000 years (when it collides with another one), killing all of the life humanity has ever discovered in the universe, and no one living today really gives a damn; Millions of children starve to death every year. And what really bothers me: so many people don’t realize that once our battery of high energy fuel is depleted (oil and natural gas), we’ll ALL be up shit creek without a paddle as a species – we’ll be completely without the ability to produce enough energy fast enough to get out of harm’s way WHEN the need arises; It has taken planet Earth millions of years to create the oil that started the chain of events that ended at your ability to read this message on your computer. That same chain of energy consumption is required to produce the much touted savior of humanity: nuclear energy – please, be clear that nuclear energy is not possible without the fossil fuel support chain. Quite simply, without fossil fuels, we’re fucked – it all boils down to mathematics. But hey, let’s bitch some more about who owns the rights to some bullshit that no one will care about in ten years.

    I can picture it now,

    A descendant of modern humanity looks toward the sky and says to his wife, “Well shit, that su” BANG, Earth is destroyed and everything we’ve ever done instantly becomes meaningless. Our descendants will not thank us for pissing away Humanity’s chance at perpetual existence by griping about dollars and ownership, rather than working together at achieving the very worthy and ultimately required goal of getting off Earth and exploring the universe. Sure, we can do many things as individuals, but our government only works part time, so we need to keep them focused, eh.

    In the words of J.F.K,

    “Geography has made us neighbors. History has made us friends. Economics has made us partners. And necessity has made us allies. Those whom nature hath so joined together, let no man put asunder.”

    and,

    “We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win…”

    Now let’s put aside this issue of copyright and focus on matters of concern that only we, the free people of Earth, have the resources to address. We can. We should. Else, all will perish through our inaction.

  36. The Onion RIAA Sues Radio Stations
    It’s funny but true. All you music shares, we need more laws so we can lock you all up.

    Thing is the radio stations have been spreading copyrighted music like forever and it never made a dent in the music industries profits. It actually helped there profits. Same as MTV and Much Music. We need less laws not more. There argument does not hold water.

    [ link ]

  37. Richard M. Stallman says:

    This article makes thoughtful suggestions for tactics, but I take
    issue with one goal stated: to make copyright law “balance the
    interests of users and content owners.” (The last must refer to the
    copyright holders of works of authorship.) These two interests should
    not have parity, because copyright law is meant to serve the users
    above all.

    Copyright law does provide benefits to writers and artists (though
    nowadays publishers have captured most of these benefits), but benefit
    for them is not its purpose. That is, rather, its method–just a
    means to an end. The purpose is to promote writing and art, for the
    benefits that these provide to the public.

    See [ link ] for a
    full treatment of the issue. The article addresses the situation in
    the US, but I think the Canadian legal tradition is based on the same
    principles, so the arguments apply there too.

    To elevate the means of copyright (benefits for certain private
    parties) to an end in itself is a common mistake, and a grave one,
    because it systematically tends to bias decisions in favor of too much
    copyright power. This mistake paved the way for the DMCA in the US,
    and if Canada adopts a similar law, I am sure it will have played a
    role there.

  38. Let’s see… a world without copyright… What would it look like?

    Well, publishers wouldn’t have any significant incentive to publish works of anybody who didn’t have any sort of name through which the work could be sold, so all the little guys would have to self-publish.

    This wouldn’t be a problem in a perfect or ideal world, but the world isn’t ideal at all, and unfortunately, people are greedy.

    What would happen is this: Some unknown guy self-publishes a work that happens to be respectable, but it isn’t getting the distribution that it deserves because the guy doesn’t have a high enough distribution pipe. Some bigwig publisher happens to come across it and decides to take over distribution, and because the original creator does not have copyright protecting his works, the publisher could do so without offering any compensation or recognition to the creator, and the creator of the work would have absolutely no legal recourse.

    No… our society needs some form of copy protection for creative works. We didn’t need copyright before it existed because until the printing press came to be, copying something was so labour intensive, time consuming, and error prone, that the costs of copying things was simply not worthwhile, and acted as a check and balance to ensure that the publishers had incentives to invest in the creators’ works. Today, we can copy things at practically a push of a button, with little to no loss of accuracy or quality in the copies produced. Without copyright, there would be no such incentives, and the above scenario would be certain to happen.

  39. Jim Ronback says:

    Engineer (retired)
    Here is an interesting take on copying by Kevin Kelly of the Wired Magazine.

    The internet is a copy machine and a super-distribution system. “The digital economy is thus run on a river of copies. ..once a copy is brought into contact with the internet, it will be copied, and those copies never leave.”. Sooner or later those copies become free.

    I would interested Michael’s comments with respect to his criteria such as fair dealing provisions needed in his version of the Canadian copyright laws, taking into account Kevin Kelly’s “Eight Generatives Better than Free” namely:
    Immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage, findability.

    [ link ]
    [ link ]

    Jim Ronback
    Tsawwassen, BC

  40. Goddess
    QUOTE: I would actually be in favour of having to register copyrighted works, within say ten years of first distribution, and at least once every ten years after that to maintain rights./QUOTE

    If you’re like me, producing 100s and 100s of works per year, and many thousands over a lifetime, how on earth could one possibly keep records and afford to re-register copyright every 10 years? The time factor alone would mean my work would not be protected, I find doing my taxes time consuming. Not much incentive for artists to continue working if we’re in essence, giving the work away.

  41. I certainlly believe in liberty of the people, and that fair use is the driver towards keeping the works alive. Fan sites should be allowed no mater whether the artists like it or not. If I’m an artist, an author, a musician, or whatever, then when it comes to asking me “Can I use your work to produce a fan work?” Well, to me it’s saying: “Should I promote liberty?” A No answer to the fan simply puts the fan in handcuffs and damages my reputation, as well as me being a communist person.

    Obviously, fair use should also be making unlimited amounts of personal copies of my work, as long as you are not selling it or giving it as a whole to another person. People should also be allowed to re-master their own collection for personal use (like copying off the old media, such as LPs, 78s, cassettes, 8-tracks, etc, and converting those to CDs and MP3 files; or taking a Betamax or a VHS tape and converting that to a DVD or a Blu-ray.

    I can clearly see from the line of Fair Use and Infringement. Clearly, if someone is producing a fan work (Parody), commenting on the work, using my work as a fan background, expressing my work as being a fan while creating his own work, criticizing and reviewing my work, using my work as a form of education, than that is fair use.

    What’s not fair use is the following: Using a substantial portion of my work (like more than a quarter percent of the film or reading), more than a half of any episode (unless you voice over the movie or work, or whatever), if you are making money off the fan work of my work, if you are bootlegging my work (unauthorized re-mastering and selling my works)

  42. Possible letter draft
    Michael, I hope you don’t mind if I’ve plagiarized a bit.

    Dear Honourable Minister,

    In December, when your proposed copyright reform bill was introduced, there was strong consumer backlash and the bill was shelved for revamping. It is expected that you will introduce a slightly modified version of this bill again before session lets out in the next few weeks in order to satisfy pressure from industry representatives. Herein lie a few suggestions proposed, by amongst others, intellectual property lawyer Michael Geist:

    1) Anti-circumvention provisions should be directly linked to copyright infringement. The anti-circumvention provisions have been by far the most controversial element of the proposed reforms. The experience in the United States, where anti-circumvention provisions effectively trump fair use rights, provides the paradigm example of what not do to. It should only be a violation of the law to circumvent a technological protection measure (TPM) if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing or private copying purposes. This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the World Intellectual Property Organization’s Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the U.S. law.

    2) No ban on devices that can be used to circumvent a TPM. Canada should not ban devices that can be used to circumvent a TPM. The reason is obvious – if Canadians cannot access the tools necessary to exercise their user rights under the Copyright Act, those rights are effectively extinguished in the digital world. If organizations are permitted to use TPMs to lock down content in a manner that threatens fair dealing, Canadians should have the right to access and use technologies that restores the copyright balance.

    3) Expand the fair dealing provision by establishing “flexible fair dealing.” Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent). The Supreme Court of Canada has already ruled that Canada’s fair dealing provision must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting) that renders everyday activities such as recording television programs acts of infringement. The ideal remedy is to address other categories such as parody, time shifting, and format shifting by making the current list of fair dealing categories illustrative rather than exhaustive.

    4) Establish a legal safe harbour for Internet intermediaries supported by a “notice and notice” takedown system. The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world. Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats. Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners. The ideal Canadian approach would be a “notice and notice” system that has been used successfully for many years on an informal basis.

    5) Modernize the backup copy provision. As part of the 1988 copyright reform, Canadian copyright law was amended to allow for the making of backup copies of computer programs. In 1988, backing up digital data meant backing up software programs. Today, digital data includes CDs, DVDs, and video games. All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional. From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment. “Modernizing” copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

    6) Rationalize the statutory damages provision. Canada is one of the only countries in the world to have a statutory damages provision within its copyright legislation. It creates the prospect of massive liability – up to $20,000 per infringement – without any evidence of actual loss. This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for one peer-to-peer file sharing defendant and leaves many defendants with little option but settlement. Before Canada faces similar developments, we should amend the statutory damages provision by clarifying that it only applies in cases of commercial gain.

    7) Include actual distribution in the making available right. The new bill will likely include a “making available” provision that will grant copyright holders the exclusive right to make their works available. While there is reason to believe that Canadian law already features a making available right, any new provision should require actual distribution, which ensures that liability only flows from real harm.

    In closing, I pray that when you find ‘a balance between industry and consumer’ that the balance is not in a bank account but rather keeping in mind the rights for fair-use of voting, tax-paying Canadians.

    Sicerely,
    blah blah

  43. length of time
    I am curious, if some work is owned by a corporation, (work for hire) and then a corporation never dies (or is dissolved), then the work never leaves copyright protection and hence becomes a permanent property of the corporation. I do not think that is a fair way to give IP to anyone….

  44. Fair Dealing for Students and Researcher
    Hi,

    I am a bit ablivious about fair dealing for students and researchers under the current copyright act. What does it entail? What are things that are allowed? Could someone please direct me to alink which explains this in a comprehensive manner? Thanks.

    Bill