My Canadian Copyright Consultation submission

By David Collier-Brown
August 24, 2009 | Comments: 1

The Parliament of Canada recently started a public consultation on what changes should be made to Canadian copyright law, after loud public condemnation of a set of proposals a few years ago. Having made more instead of less, because "Using Samba" was available electronically, it behooved me to tell Parliament that.

I wrote:

I am a Canadian author with recent experience in the trade-offs in copyright law and in particular to the relevance of digital rights management schemes to publishing and can comment usefully on the subject.

I was the coauthor of a technical book, "Using Samba", published in the United States and Canada by O'Reilly and Associates. Despite also being available electronically for no cost, the printed book was the outstanding seller in its class.

The History of "Using Samba"

This book was published both as a traditional book and a computer file suitable for reading and printing from personal computers. There were no limitations on distribution or personal printing, and the license reserved only commercial printing rights to the publisher.

There was an implicit form of rights management, in that only commercial printers have equipment capable of printing and binding on sufficiently thin paper to make a manageable book. If printed on conventional photocopier paper, the book is over three inches thick. Printing small sections for reference on photocopier paper is perfectly practical, but large-scale printing is not.

This effectively reinforced the reservations in the license: printing for profit is both illegal and impractical, but personal printing, excerpting and copying is unrestricted.

The net result is that the book was widely used as a reference, and the on-line readers bought the physical book in great numbers for its more convenient form. O'Reilly has since published a number of other books in this manner, as have other publishers of both fiction and non-fiction.

This experience allows me to speak to the questions Parliament is interested in:

1. Copyright and You: How do Canada's copyright laws affect you?

Canada's copyright laws have been a strong and useful protection to me, and the exceptions for fair dealing have aided me in this effort, rather than making it harder.
The author's rights management of ordinary commercial copyright law protects my publisher and I in countries which honor copyright.

In those where copyright does not exist or is ignored, the cost of publication and shipping physical books or other media are such as to mitigate any counterfeiting printing attempts: the counterfeiters cannot profit by shipping them outside of the country, and so are limited in the damage they can do.

Conversely, legal acceptance of an explicit anti-copying scheme affecting electronic books would harm me. It would in fact restrict the easy and painless distribution of the book, making it less popular and discouraging persons from depending on it. This would lead directly to lessened sales of the printed book, and a reduction in my and my publisher's income.

2. How should existing laws be modernized?

A modernization of Copyright is desirable, to deal with new media and new issues, but slavishly following the American model would be a retrograde step, and harm not just myself, but also any author or publisher understanding the Internet and desiring to offer books or portions of them using new media.

In particular, prohibitions on distribution, the so-called "three strikes" proposals, would discourage prospective readers from downloading the book and thus from being motivated to purchase it.

Similarly prohibition of particular communication protocols like BitTorrent would block one of the common ways in which the electronic book is obtained, as part of a download of the "Samba" program that it describes.

In short, blanket prohibitions on copying are not merely unwise, but harmful to companies which have understanding of new media and made it part of their business plans.
therefore Canada should concentrate on changes which are of benefit to persons or companies who understand new media and can attract new business to Canada because of a more business-friendly legislative regime

2.1 Technological Rights or Restriction Schemes

Canada needs legislative changes in the area of imposed technological restrictions on electronic media, variously called Digital Rights Management, or alternatively, Digital Restrictions Management (DRM) schemes.

The United States has commenced a risky experiment in permitting arbitrary restrictions on books or other media in electronic form, and backing the restrictions by a law, the "Digital Millennium Copyright Act" (DMCA) prohibiting the lawful use of the book if the use is not explicitly permitted by the publisher. This permits publishers to impose any restriction they chose, sometimes flying in the face of established law.

For example, one cannot legally convert text to speech for the blind, because publishers have chosen to prohibit users of the Kindle e-book reader from doing so, and their prohibition under the American DMCA is considered to override other laws such as their own "Americans With Disabilities Act".

In my considered opinion, such a law discourages innovation and creativity, strangles competition and discourages investment, by placing extraordinary powers in the hands of an oligopoly of electronic publishers.

2.2 Technologically Restricted Media in Canada

Large numbers of these technologically restricted media have been imported into Canada as part of ordinary everyday trade, by companies such as Sony Music USA (CDs) and Amazon (Kindle ebook reader). The publishers expect Canada to honor the restrictions on these devices, and hope for protective legislation. In addition, the United States is encouraging enabling amendments to Canadian, Australian and British copyright law, in part through the World Trade Organization, to act as enabling legislation for similar restrictions here.

I consider the legal protection of a digital restriction program to be startlingly bad public policy. It gives the colour of law to any restriction, whether legal or otherwise. The prohibition of playing text to blind people is only the least of these restrictions.

2.3 Illegal Means Used

It is specifically unwise to give legal protection to a program which illegally restrict the rights of the pubic. Such systems have been shown, most recently by Sony, to be capable of significant harm. Sony Music shipped a series of CDs containing a "root kit", a hacking tool or virus designed to take over the operating system of a computer used to play the CD. The intention was to subvert the Windows operating system and prevent copying and playing CDs, except as permitted by Sony. As a side effect, this scheme opened the operating system to takeover by other viruses, and interfered with the playing and copying of the owner's other CDs. This was discovered and the CDs withdrawn, in part because they arguably to break the Canadian laws against subversion, "the unlawful theft of computer and communications services", as the intended effect of their operation.

In the United States and under the DMCA, removal of the root-kit/virus from the CD would be illegal, and would threaten the victim of the rogue program with criminal penalties.

These DRM schemes do not require the protection of law: the copyright works that they protect do, and the applicable commercial and criminal code should be applied to counterfeiters, not innocent purchasers.

2.4 Prevention of Expiry of Copyright

In addition, I would suggest that the copyright act be amended to defend against restrictions imposed by the publishers. In particular publishers desire a never-expiring copyright, and when allowed by law to impose arbitrary restrictions, have chosen to use them to extend the maximum term of copyright to infinity. Technological protections against copying never expire, because the programs used have been written to grant publishers infinite copyright.

This flies in the face of our current copyright law, and should be prevented. To counteract this, publishers should be required to provide unrestricted copies of publications under Canadian copyright to the National Library of Canada or private depositories nominated by the National Library. The library or depository should offer suitable statutory protection against their early release to the authors or publishers.
Upon expiry of the copyright terms, the depositories would make the unrestricted copies available for a fee.

This is similar to the common contractual requirement that copies of the original source of computer programs be deposited with the publisher's lawyer, against the failure or malfeasance of the publisher. A depository could be as simple as a lawyers' safe.

2.5 Technological Failure

When DRM systems are discontinued, as has happened with Microsoft products, the media or books are rendered unusable.

In order to prevent the complete loss of the works, the depository library, upon the expiry of the copyright, shall make the originals available once again for a reasonable fee.
Upon the failure or discontinuance of a DRM scheme, the publishers would retain the option of republishing under a different scheme under ordinary copyright law.

2.6 Unlawful Destruction of Purchases

In a recent incident, a publisher removed purchased copies of "Animal Farm" and "1984" from customer's Kindle e-book readers, including those of Canadians. Despite the books being in the public domain, the publisher justified the removal as due to a concern about copyright.

Without a depository, Canadians would be forced to sue in U.S. Courts to try to regain the rights they have under Canadian copyright. I and others would therefore be highly resistant to spend any money on media provided on a device controlled by someone else in another legal jurisdiction.

With a depository, customers could litigate in Canada with the hope of obtaining their property back if they succeeded.

2.7 "Orphan" Works

On cessation of publication, books become unavailable, with or without the presence of technological restrictions.

As a new item of public policy, I propose that in such a case the copyright should by statute continue for no less than seven years.

After this time, upon request by a member of the public, the copyright depository library should advertise that copyright is deemed to have lapsed, and that it will offer the unrestricted copy within no more than one year. A copyright owner may then give notice that they have in fact recommenced publication, and if so the copyright deposit library shall advertise that fact and not release the unrestricted copy.

2.8 Restrictions Trumping Existing Law

Restriction schemes should be forced to make exceptions for the partially sighted and people with other disabilities, as per existing Canadian law, and not be permitted to trump it. This requires legislative protection.

2.9 Prohibiting Particular Programs

Similarly prohibition of particular communication protocols like BitTorrent would block one of the common ways in which the electronic book is obtained, as part of a download of the "Samba" program that it describes.

Canadian law should not prohibit file-sharing programs, but instead prohibit illegal actions using them.

2.10 Restrictions Used to Chill

There is also a proposal that internet service providers cut off their customers on having received three complaints from copyright owners that the customer downloaded copyrighted materials. These so-called "three strikes" proposals,would discourage my prospective readers from downloading the book and thus from being motivated to purchase it.

As with our experiences with misuse or fraudulent use of the "DMCA take-down" provisions (section 2.11, just below) there is no reason to believe that the complainants would necessarily be correct or honest in their complaints. This would cast a chill on all downloading, as one could be cut off from internet access by a mere assertion to a third party, the ISP. That threatens any business which desires to deliver a product via downloads, including as major companies as Google or Microsoft as well as myself.

This also flies in the face of all previous jurisprudence. If a complainant has a case against downloads, they should make it to a Canadian court, not compel an uninterested third party to cut off an innocent Canadian internet user.

2.11 Ends Achieved by Fraud

A related part of the U.S. DMCA is the right granted to publishers to compel web sites to remove material on a claim of copyright infringement, called "DMCA take-down". This has been employed in the United States to deny the actual owners of the copyright the ability to put their work on the web. The publishers in question have asserted copyrights, even though they do not possess them, and the web site is compelled to withdraw the material, over the owner's objections.

This recently happened to an American video producer, Chris Night, whose original work was claimed by the Viacom VH1 TV channel, who broadcast it without his permission, claimed copyright on it and had it removed from YouTube.

I have the same desire as the video producer, to exhibit my work and encourage the purchase of it in a different form, and so am at risk of the same sort of fraud.

This ability has also been a used to shut down sites set up to protest particular companies, as in order to function they need to name the company. The company claims copyright on their name and compels the site to be taken down. When objections are made or litigation commenced, the company or publisher can extend the fraudulent take-down by a spirited legal defense.

This is the opposite of existing and long-standing Canadian practice: complainants in Canada should and must make their cases to a court, not compel innocent third parties. Canadian law should not permit a mere assertion of copyright to prevent me from publishing my property, whatever the media.

3. Whether new types of content sharing license (such as Creative Commons or Copyleft) need legislation changes to be effective

Using Samba was successfully published under a free content license, under the copyright regimes of the United States and Canada, without any required or desired change in that law. I do not see a need for changes for that particular purpose.
An area which does need modernization, on the other hand, concerns sharing of content between the author and readers or commentators. This concerns the degree to which derivative works are allowed.

It is to my and my publisher's advantage for others to comment, review and annotate the book, making it more valuable to other readers. At the moment, only the first two are considered fair dealing.

Volunteer additions, corrections and clarifications, sometimes called "mash-ups", may or may not be lawful in Canada. In particular, a university would be taking a risk if they were to try to create a "wiki" containing a book, to make a shared annotation web site possible. We simply don't know what is permissible.

Some derivations, on the other hand, are undesirable. A wholesale translation of the work into another language for foreign publication, would be one.

A clearer definition of what derivations one may lawfully make of a work through fair dealing is desirable, so as to allow derivations for purposes of study, criticism, debate and improvement. Broader or narrower rules can be experimented with by individual publishers and communities through specific content-sharing licenses, protected as they already are by copyright law.

4. Test of Time: Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

The Parliament of Canada should address new technologies in light of the long-existing successful development of copyright in their legal regimes, and adapt in a conservative and non-extraordinary manner to the additional problems raised by those technologies.
The suggestions I have made are intended to be concrete examples of this approach.
Innovation and Creativity:What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

Among the changes I outline above, the following foster innovation and creativity:

  • Don't enable extra-legal restriction (section 2.2, above). This wastes the creativity of the author in finding ways around permitting the restrictions to interfere with his or her work, and encourages publishing in more cooperative jurisdictions, possibly in the E.U.
  • Don't extend copyright indefinitely via technology (2.4). That prevents the entirely proper reuse of older works by Canadians, for no particular benefit to the owner.
  • Deal with technological failure (2.5). Technology always fails: don't let Canadians lose their purchased goods through predictable, unavoidable errors.
  • Don't orphan works (2.7). Let the publishers recapture and republish them, and if they cannot, release them after 7 years to the public domain for Canadians to use in future books or products

.

6. Competition and Investment: What sorts of copyright changes do you believe would best foster competition and investment in Canada?

The following encourage competition and investment in Canada, and do not tend to drive artists, investors and companies away:


  • Don't allow express illegality (2.3). We cannot thrive with laws which enable a privileged class to use illegal viruses or root-kits without being punished.
  • Don't allow destruction of purchased goods (2.6), especially when foreign companies destroy the property of Canadians.
  • Don't allow restriction schemes to trump existing law (2.8). Copyright law should not trump one's legal rights, especially accessibility rights.
  • Don't prohibit particular programs (2.9). That will drive Canadians to take their business to offshore providers.
  • Don't allow anti-competitive chill (2.10). This will affect every Canadian software company, from the smallest the largest, as well as many new media companies.
  • Don't ignore fraudulent means (2.11). Prohibit or prosecute criminals targeting Canadians.

  • Do clarify the kinds and treatments of derivative works (3). This will allow the creation of new, as-yet unknown kinds of new-media businesses.

7. Digital Economy: What kinds of changes would best position Canada as a leader in the global, digital economy?

The changes we should make are those which best support persons and companies which have succeeded using new media, and have shown where the problems and opportunities lie.

We will not thrive if we're constantly changing the law, as that will discourage any company with long-term plans for a particular media. Once we and others have discovered the problems of a new media, we should make the minimal change possible to correct the problem, narrowly aimed at the problem and not proposed as a new and general rule.

We should definitely not try to use the courts as a laboratory for new and experimental schemes until we know the effects. Doing that would rapidly drive new-media companies to competing jurisdictions.

William Gibson once wrote "the future is already here, it is just not uniformly distributed." Some of us have already experienced a global, digital economy. This consultation and consultations with other jurisdictions can identify the opportunities, the problems and the ways to moderate them.

We should search them out and put them to work for Canadians. My concrete proposals above are made in this spirit.

Respectfully Submitted,

David Collier-Brown
davecb@spamcop.net


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