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Responding to the Copyright Consultation: My Short Answer

I will have news on a new copyright consultation website that I'm launching shortly, but I wanted to post my short response to the just-launched copyright consultation.  The consultation asks five broad questions, each of which could lead to lengthy answers that mine the depths of Canadian copyright law.  I plan to post longer responses to the consultation that expands on the issues raised by the government over the course of the next eight weeks, but as Canadians think about their response (and submission takes nothing more than email) I think a short answer that is accessible now is crucial. 

My short answer would begin by noting that the five questions can really be grouped into three key issues:

  • Why does copyright matter to you?
  • How can the government ensure that copyright reforms remain relevant in the long term?
  • What specific reforms should the government prioritize (having regard for creativity, innovation, competition, and the digital economy)?

Why does copyright matter?

The consultation’s first question is also the most personal since the answer will be different for almost everyone. 

For me, copyright matters because I am a professor and my students need access to copyrighted materials and the freedom to use those materials.  It matters because I am a researcher who needs assurance that as materials are archived they will not be locked down under digital rights management.  It matters because I am deeply concerned about privacy and fear that DRM could be harmful to my personal privacy.  It matters because I have created videos and need flexibility in the law to allow for remix and transformed works and do not want my content taken down from the Internet based on unproven claims.  It matters because I am a writer and I need certainty of access to speak freely.  It matters because I am a consumer of digital entertainment and I want the law to reasonably reflect the right to view the content on the device of my choice.  It matters because I am a parent whose children have only known life with the Internet and I want to ensure that they experience all the digital world has to offer.  It matters because I live in a city with a strong connection to the digital economy and we need forward-looking laws to allow the next generation of companies to thrive.  It matters because I am a proud Canadian who wants laws based not on external political pressure, but rather on the best interest of millions of Canadians.

How to remain relevant?

Developing copyright law principles that remain relevant years from now is unquestionably a difficult challenge.  With references to VHS tapes and the decision to block network-based PVR services, Bill C-61 was outdated the moment it was introduced. In order to introduce legislation that will stand the test of time, the government needs a principle-based, forward-looking approach.  I would argue that there are three essential ingredients:

  1. Heed the words of the Supreme Court of Canada.  In 2002, the Court argued that over-protecting works is just as problematic as under-protecting them (the specific quote: “The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.  In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.”).  The court’s emphasis on balance and the dangers of excessive control should stand as a starting principle for reform.
  2. Technological neutrality. Bill C-61 made the mistake of weighing in on specific technologies.  It banned the distribution of some (circumvention devices), blocked the use of others (network based PVRs), and provided specific support for some others (digital rights management).  It should not be the role of government to pick specific technologies or business models.  Instead, a technologically-neutral approach is essential.
  3. Flexibility.  Flexibility should be the key watchword for policy makers in at least two respects.  First, a forward-looking approach requires nimble laws that can adapt, particularly in the current environment.  Building greater flexibility into the law – primarily through fair dealing – would give the law a fighting chance in adapting to new business models and new forms of creativity.  Second, flexibility is important when thinking about international copyright law.  There will be great pressure to conform to international treaties yet those treaties offer considerable flexibility in implementation.  Canada should take full advantage of that flexibility by drawing on the best examples from around the world.

What to do?  What not to do?

The final three consultation questions really ask the same thing with slightly altered perspectives – what should we do to foster innovation and creativity, competition and investment, and to position the country as a leader in the digital world.  At its heart, each of these questions is asking for comments on proposed reforms that are forward-looking and ensure that the goals of innovation, creativity, and marketplace success are met.  While it is possible to answer each individually, there is considerable overlap.  For example, a more flexible fair dealing provision has benefits for innovation, for creativity, for competition, and for the digital economy. The same is true for anti-circumvention provisions that retain the copyright balance.

In an ideal world, we might start from scratch to create a law truly makes sense in the current environment.  We are not starting from scratch, however.  The reality is that there is an international context with treaties we have ratified (Berne Convention) and treaties we have signed but not yet implemented ((WIPO Internet treaties). Moreover, there is a domestic context, with Bill C-61 surely used as reference point. 

The international and domestic context requires Canadians to speak out both on what to do and what not to do.  I offer five points on each.

What to do?

1. Flexible fair dealing.  A more flexible fair dealing provision would address many of the current concerns associated with Canadian copyright law.  By opening up fair dealing, Canadian law could ensure that user rights extend to parody and satire as well as to format shifting, time shifting (recording television shows), and device shifting.  It could cover transformative works to ensure that remix creativity is adequately protected and it could ensure that the law is technologically-neutral.

2. Digital reforms.  There are three key reforms here.  First, anti-circumvention legislation (rules against picking digital locks) is a certainty given the pressure to implement WIPO.  If we move in this direction, anti-circumvention rules should be specifically linked to circumventions for the purpose of copyright infringement.  Non-infringing circumventions should remain legal.  Second, we should create a safe harbour from liability for Internet intermediaries by adopting the notice-and-notice approach used in both C-60 and C-61.  Third, we should introduce rights management information protection as requested by many creator groups.

3. Modernize.  There are areas where Canadian law is out-of-date and needs to be modernized.  The backup copy provision, which currently only covers computer programs, should be extended to all digital data.  Crown copyright, which dates back centuries, should be abolished.  Education and library provisions should be updated, not with a new Internet exception, but rather with rules that facilitate digital library loans, digitization, and distance learning.

4. Public Domain.  The current term of copyright stands at life of the author plus 50 years.  The government should make a clear commitment not to extend any further.  Moreover, it should identify a presumed public domain date (based on birth date and reasonable life expectancy) to facilitate digitization of Canadian heritage.

5. Enforcement.  The statutory damages provision should be amended so that the prospect of millions in liability for cases of non-commercial infringement is eliminated. Moreover, the provision should not apply where the infringer had a good faith belief that the alleged infringement was covered by fair dealing.

What not do?

1. Do not allow anti-circumvention legislation to override the copyright balance.  The U.S. Digital Millennium Copyright Act is not the only way to implement the WIPO Internet treaties.  We can follow our own Bill C-60 by limiting anti-circumvention rules to circumvention for the purposes of infringement. 

2. Do not ban technologies that can be used to circumvent.  Assuming it is recognized that there are many legitimate reasons to circumvent a digital lock, then the distribution of the tools (ie. software) used to circumvent is also legitimate.  There is no international legal requirement to ban their distribution.

3. Do not harm the public domain with copyright term extension.  While some countries have extended the term of copyright beyond the Berne Convention requirement of life of the author plus 50 years, there is no compelling reason – either from an economic, creativity, or innovation perspective – to extend the term.  Indeed, there are strong arguments that harming the public domain would have the opposite effect.

4. Do not establish a three-strikes and you’re out system that removes Internet access based on unproven allegations of infringement.  Attempts at three-strikes systems have struck out in virtually every country where they have been raised. Internet access is far too important to establish a system that would cut off access based on unproven allegations of infringement.

5. Do not permit international treaty negotiations to pre-determine domestic reforms.  Canada is an active participant in the Anti-Counterfeiting Trade Agreement negotiations, which will shortly address Internet-related issues.  Those provisions could have a significant impact on the domestic reform process.  Canada should not let ACTA dictate the future of Canadian copyright law.

There is much more to say about each of these issues as well as many that do not fit nicely into this framework.  I plan on writing about all of this during the consultation and encourage as many Canadians as possible to get educated and to Speak Out on Copyright.

17 Comments

  1. Mississauga Resident says:

    Just a note..
    Although we’re not American,as of yesterday July 20th RIAA has abandoned DRM stated by the RIAA co-chairman Johnathan Lamy “DRM is dead, the future is clear is and it is not DRM”f

  2. In general I agree
    Except about the abolishment of Crown copyright. Before folks go ballistic on this, let me explain. I would rather see a change in the terms of Crown Copyright… personal and non-profit uses by Canadian residents and Canadian registered companies would not be subject to Crown Copyright; it is would only apply to for-profit uses and to non-residents.

    The rationale that I am using is that the taxes of Canadians went to pay for it; it is therefore “owned” by the taxpayers of Canada. In particular where someone wants to use a work for commercial purposes, I see no particular reason why they shouldn’t help defray the original costs of production, although this also applies to non-residents.

    The other thing that feeds into this is that a number of studies are carried out by governmental research agencies, such as the NRC, using funding from private companies. Should a company that did not contribute to the original production have full commercial purposes access to the document, just like those that paid to have it done in the first place?

    This is where I am approaching this from.

  3. kyle clements says:

    copyright has gone way too far
    Copyright has gone too far, I believe. copyright law should seen to balance the needs of content owners with the needs of society, and it has swung way too far towards favouring content owners.

    I’m an artist, so I understand the need to having my work protected firsthand. But owning the rights to something 50 years AFTER I’M DEAD? how does that encourage me to continue to create? Having copyright expire 50 years after its initial publication would make a lot more sense. (personally, I would prefer to have it last only 20 years)

    the three issues with copyright that bother me the most are anti-circumvention laws, a vague definition of fair dealing, and threat of continued copyright extensions.

    1. anti circumvention laws: I can not legally watch a DVD that I have legitimately purchased because of my choice of operating system. (but a pirated copy works just fine.) let me break the lock so I can watch what I paid for without breaking the law.
    2. Fair Dealing: If I am right, and I have used copyrighted content fairly, I am still dragged to court, where I have to spend money I don’t have to defend myself against a company and their army of lawyers. Legal bills are huge. Even if I win, I lose.
    3. how can copyright be considered ‘temporary’ if it keeps getting extended every time the deadline approaches. I wish university or job deadlines worked that way.

  4. Nothings Wrong
    How about we just save everyone money and time and leave the laws alone for another 10 years. The people who want this most don’t have the best interest of Canadians at heart.

  5. A Disagreement
    Respectfully, I must disagree with your preferred stance on DRM. Not only should it be legal to circumvent it for non-infringing purposes, but DRM must also be restricted, such that DRM may not infringe on the rights of consumers (ie, it may not prevent you from making backups, may not prevent you from format-shifting, may not infringe on your right to resell the product, may not infringe on the privacy of the user, and so forth). I don’t believe that they can successfully make DRM that accomplishes this without also making said DRM useless.

    I would also argue that of particular note is that unlocked copies should be required to be given to groups like the CNIB and other disability-access groups.

    Currently, all DRM systems have been easily broken. One should not presume, however, that they will not eventually be able to create DRM that cannot be so easily circumvented.

  6. dawn paley says:

    update on yesterday’s launch in Vancouver
    I posted an article about the launch of the consultations on copyright here: http://vancouver.mediacoop.ca/story/1759

  7. Further on DRM
    I’d also like to add that DRM on works in the public domain should be absolutely forbidden. I think that’s more or less established by my prior comments, but it’s very important that the public domain not get subverted by a system of locks.

  8. pat donovan says:

    grunt
    American new copyright is the biggest land-grab in history.. property, by def, is absolute. NOT a interest which expires as soon as the tech changes.

    In practice, DMR is throwing your money away. NONE of the systems put in place still function after a few years.

    that alone will kill rentals/ and the new royals.

    altering the defination of property to the point where the economy is locked solid under lawsuits?

    subject of photo, owner of photo, photo-server, the photo-user… (the obama poster)

    ALL of them want money or the system falls under it’s own weight. (of lawsuits)

    for the love of god, do something sensible, NOT political.

    packrat

  9. make it short
    If the law isn’t about as short as your quick notes, then it will not be accessible to 12 year olds who are undoubtedly among the biggest media users in Canada at the moment. Throwing the book at them would do our justice system great harm.

    Since lawyers will be drafting this bill and not people, uh, you know what I mean, there’s going to be a push to say less with more words. Sticking to intent with concise words is what our law needs in this area, and all others.

  10. American spinsters published this report
    http://arstechnica.com/tech-policy/news/2009/07/industry-study-claims-strong-copyrights-fuel-economic-engine.ars

    The Conference Board of Canada will likely find it useful in preparing their next opus on “intellectual” “property”. :)

  11. Drew Wilson says:

    Nice Response
    I’m looking over your responses and noticed that on many issues, we pretty much agreed (I spent all day working on a response and read yours after I submitted mine). I’m glad we can establish a concensus on a number of areas. :)

    It’s pretty obvious that one could write a whole text-book on how Canada should move forward with less restrictive copyright laws. You seem to name 10 ways on which Canada can move forward, I named 16 ways (though I admit now that one could have been added to another)

    Anyway, keep up the good work!

    (If anyone was wondering and didn’t catch my other posting on the subject, I posted my response here: http://www.zeropaid.com/bbs/showthread.php?p=604950#post604950 )

    I encourage as many people as possible to send the consultation their own thoughts though!

  12. Ian Thomas says:

    Thanks for sharing your response quick.
    Thanks for sharing your response quick so it may inform my thoughts. I have followed your posts on copyright for a few years now and greatly appreciate your perspective and the currency of your work. I will be using your thoughts to promote discussion among my colleagues and students as I help them understand the relevance to their lives and goad them to share their thoughts to the consultation process.

  13. Short Answer?
    I like how this is your “short” answer.

  14. Joe Clark says:

    We get it! It matters!
    Please try not to faux-Lessigize your discursive style, Michael. You need say “It matters” only once.

  15. DRM is anti-consumer
    DRM is something which should be banned, not protected. For a start, it’s always got an impossible goal, to prevent unauthorized actions while permitting authorized actions – in every case this has actually meant preventing legal actions, for example protection DVDs preventing an academic from showing a short extract in class. It also always causes problems even to the honest consumer, trying to follow the rules, for example when the DRM system becomes obsoleted by the producer, as in Walmart, Yahoo or Microsoft discontinuing their Music stores, or when Sony installed rootkits. Despite this, it has always failed, and always will – in encryption there are four components, the plain text, the encryption method, the encryption key, and the encrypted text. Given any three of these, you can derive the fourth. Given a player and a file, you have everything except for the plaintext.

    While I understand why content providers might like the idea of DRM, the actual minimal gains are not worth the anti-consumer results.

  16. Remember kids: Copyright is a social contract that promised to make the material public domain in exchange for a _limited_ time of exclusive distribution.

    Anything to change the terms is a theft to the society. Extending copyright is bad for society as it removes the material forever.

    Having DRM means they have violated the social contract as the material is no longer free available after the copyright period expires. Any material that have DRM should no longer be protected under the copyright terms. They should be under Industrial Secrets and treated as that. i.e. material no longer a secret if DRM is broken.