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Copyright Consultation Provides Blueprint for Reform

Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) I wrote for the Hill Times on the lessons that can be drawn from this summer's copyright consultation. The piece appears as part of a special section on copyright that included an interview with Industry Minister Tony Clement, Charlie Angus, Howard Knopf, Pina D'Agostino, and Simon Doyle (amont others). I note the government is still in the midst of posting all the submissions, but with thousands now online, it is not too early to begin drawing some lessons. 

What does the consultation teach us?  There are at least eight conclusions of note:

1.    Copyright policy has gone mainstream.  A Canadian government last consulted the public on copyright in 2001. That consultation generated approximately 700 responses, which at the time was regarded as a significant participation rate.  The 2009 consultation – with over 8,000 submissions, two packed townhalls, nearly a dozen roundtables, thousands of comments in an online discussion forum, and hundreds of news articles, blog postings, and tweets – demonstrated that Canadians care deeply about copyright and are determined to have their views reflected in government policy.  When a copyright bill is unveiled, Canadians will be paying close attention.

2.    There is support for implementing the World Intellectual Property Organization's Internet Treaties, but on Canadian terms.  Canada signed the WIPO treaties over a decade ago and many Canadians believe that we should implement them.  However, a consistent theme throughout the consultation was the need for Canada to take full advantage of the flexibility within the treaties by granting new protections to the copyright industries while also preserving consumer rights.  This was most commonly articulated with the recommendation that new legal protections for digital locks be linked to cases of actual infringement.

3.    Groups from across the spectrum support fair dealing reform.  Fair dealing emerged as one of the most discussed issues with near universal agreement that it is in need of reform.  The divide is really over which approach to take.  Many groups called for a flexible approach that builds on current Canadian law by opening door to additional categories of fair dealing (the "such as" approach).  Other recommended adopting narrow, specific reforms including new exceptions for parody and satire.

4.    Canadians want to modernize copyright law to reflect common consumer uses.  Thousands of Canadians agreed with the notion of updating copyright law by ensuring that the law legalizes common activities such as recording television shows, format shifting content between devices, interacting with electronic books, or engaging in remixing of content.  Canadians are comfortable with technology and expect that the law should keep pace with reasonable uses.  Indeed, even the Canadian Radio-television and Telecommunications Commission posted a submission calling for the formal legalization of some of these activities.

5.    Ensuring creators get paid is essential.  The most consistent theme from Canadian creator groups was also the simplest – creators want to be paid for their work.  That led to the articulation of two visions.  One possibility is the expansion of collective licencing, such as broadening the private copying levy to more devices and content.  Alternatively, some creators focused on market-based solutions with new business models that offer potentially lucrative opportunities.

6.    Government should lead by example.  Clement and Moore both seemed surprised by the frequent requests for the abolition of crown copyright, which grants the government exclusive rights over its own publications.  Librarians, archivists, and citizens groups all noted the importance of unfettered access to public documents, criticizing outdated notions of requiring permission to copy laws, court decisions, or other government documents.  

7.    Copyright reform is directly linked to broader digital policy issues.  Many Canadians pointed to the need for a holistic, forward-looking approach to copyright reform that acknowledges the links between copyright policy and Canada's broader digital policy.  Hundreds invoked the need for net neutrality and appropriate conduct by Internet providers.  Moreover, submissions frequently cited the need to establish appropriate intermediary liability and Internet provider safe harbour rules that provide effective, proportional remedies and recognize the critical importance of Internet access for all.

8.    Preserve Canadian choices by pursuing a Made-in-Canada solution.  Canadians are acutely aware of the copyright reform experiences in other countries and regularly pointed to other countries as examples both for what to do and what to avoid.  Further, many expressed concern that the current negotiations on an Anti-Counterfeiting Trade Agreement could undermine the government's ability to craft a much-desired Canadian-specific solution.

11 Comments

  1. The bottom line in regards to DRM
    Is that it should not be allowed. The only thing that it does is annoy legitimate customers and is hacked within a DAY in most cases of it coming out. This includes the stuff that Microsoft is doing with the XBox360, banning consoles that simply have ‘mod chips’ that can be used to play backed up games and do nothing else and refusing to allow LEGALLY BACKED UP GAMES to be played on the consoles.

    I am all for them going after people who infringe on copyright FOR PROFIT, namely the people who press discs over in China and then sell them all over the world for profit, but not anyone else.

    It’s also time for these media companies to realize that people are already paying for their things in many forms. Nearly everyone in the United States have some sort of cable TV or satellite TV membership, so these companies are already being paid for the movies, music, etc. that is shared ‘illegally’ online. It’s time to acknowledge that and say “Hey, this stuff is fine, it is now legal!”
    For games…. it becomes a little more….. complicated, but it still boils down to one point: ONLY GO AFTER THE PROFIT PIRATES.

  2. Chris, MS Xbox360 is a non-issue, MS is free to set what ever rules they want WRT the use of their servers. They’re their servers, so it is their right. As long as no one comes along with a law that prevents me from modding my Xbox it doesn’t matter. I should be able to do anything I want with any device I own. Having done so, whether a service provider will then allow me to use their service is a completely separate issue.

    So what’s the bottom line? As far as I’m concerned, it is that they should be able to DRM their content and devices to what ever extent they want. However once I buy it, I am also free to modify it in any way I want. If they do not want me modding the device, then don’t sell it to me. They could rent Xboxes and keep the title themselves. Then there would be no legal way to mod them, or even reverse engineer them. They do not need new DRM copyright laws to bring in their new business models.

  3. RE: Hook
    “As far as I’m concerned, it is that they should be able to DRM their content and devices to what ever extent they want.”

    I disagree. As the “Sony Rootkit” example shows, allowing unlimited DRM is a bad idea.

    I hope that DRM will be abolished altogether or at least made into a very limited form.

  4. Yes, the Sony root kit is an excellent example. Sony installed rogue code on peoples machines (unsure if it was with or without permission) and they got nailed with a class action law suit for their negligence.

    At the same time it was and is perfectly legal to remove and/or bypass the root kit. Companies should be free to build in DRM. They should also have to disclose that they are doing so, and you should be free to bypas/break it.

    What I’d like to see is some clarity regarding what click wrapped EULA can reasonably demand.

  5. “As the “Sony Rootkit” example shows, allowing unlimited DRM is a bad idea.”
    As long as people can legally circumvent the DRM and expose this type of thing, market forces should help keep companies somewhat in line. Sony paid for their screwup.
    It also helps keep them from doing and or hiding illegal or malicious things with the DRM.

  6. Click Wrap
    What I’d like to see is some clarity regarding what click wrapped EULA can reasonably demand.

    This is not a legal opinion, but a consumer opinion.

    Setup:

    I go to the store, buy a box which contains a physical media product which happens to hold software. The box also probably has a license key inside as well. I go home, take off the plastic wrap open the box unseal the cd and put it in my computer. I shuffle through all the crap in the box and look for the key.

    Nowhere on the outside of the box nor in the box is a printed copy of he EULA. The only time I get to see the EULA is when I go to install the software. Not on the outside of the box for me to see before I purchase, nor before I unseal the box. It is only after I have the box opened and therefore somehow un-returnable do they attempt to shaft me with an EULA.

    I would hold that the EULA is a pile of meaningless drivel written by lawyers to keep themselves in business and any contract you made was with the store you purchased it from and not with the software company/publisher that made the software.

    Software licensing holds the same amount of respect in my life as software patents. Right at the bottom of the dung heap.

  7. Glen, I’d like to agree with you. And practically speaking as an individual I do. However businesses and governments do not share the same liberty with regard to ignoring EULA. And as such we are all limited by them.

    There is little case law in canada but this might give you some indication as to their enforceability.

    http://www.itlaw.com/ecommerce_law_update.htm

  8. grunt
    CRTC dumping ownership? appling copyright?
    have they considered appling existing rules;
    taking fox off the air for BAD reporting
    making cable companies PRODUCE broadcasts..
    or is this just another exersise in money-grabs?
    pat

  9. ” RE: Hook
    “As far as I’m concerned, it is that they should be able to DRM their content and devices to what ever extent they want.”

    I disagree. As the “Sony Rootkit” example shows, allowing unlimited DRM is a bad idea. ”

    But the Sony rootkit wasn’t about them adding drm to their product. It was about Sony altering MY computer to fit their needs. It’s ok for them to destroy their own computers all they want, it’s NOT ok fro them to do the same to mine.

  10. @ Glen, you got a point there.
    I might Add; lapatops. When you buy a laptop usually it’s bundled with a copy of MS windows … you buy it and MS has already been paid for it .. but what if you don’t really want it?

  11. Christopher: “ONLY GO AFTER THE PROFIT PIRATES.”

    The problem with this approach, as nice as it might appear on the surface, is that there is nothing to stop somebody from distributing a competitor’s works for free for the express purpose of depriving the competitor of a particular revenue stream.

    Further, it fails to consider how matters of infringement would be handled when a product happens to be free in the first place (such as GPL software, which even though free is fully copyrighted and similarly protected to any other copyrighted work).

    As for the subject of DRM? If a manufacturer wants to put DRM on their product, I say let ‘em… I am not even opposed to technological barriers, whether preexisting or deliberately put in place to prevent a casual user from removing it from a product, AS LONG AS there is no actual legal prohibition against removing such protection, nor should the act of removing it in any way void any permission to copy a copyrighted work that the person otherwise would have had if they had not removed the protection. Such an altered product should qualify as a derivative work of the original under copyright, and would thus require the express permission of the copyright holder to distribute to anyone else (since you don’t need any permission from the copyright holder to legally create a derivative work of their work, you only need permission to legally distribute it).