Submission to copyright consultation

The deadline to make a submission to the Canadian Copyright consultations is September 13.
Richard pointed out a guide with astroturfing instructions: http://faircopy.ca/participate/.

This is the main consultation site: http://copyright.econsultation.ca/

This is my uninformed, blathering submission. It is less well-informed than an article published in the Waterloo Record. If I can make a submission, so can you!

Note that I believe that making a submission is worthwhile even if there is a federal election and the bill dies. The last round of backlash probably contributed to this consultation.

First of all, thank you for holding public consultations on copyright
reform. One of the more frustrating aspects of the previous copyright
bill was that it was drafted with no input from the general public,
despite copyright supposedly being an instrument for the common public
good.

I care about many aspects of copyright and its reform. As a systems
administrator I use open source software every day, and I have a
strong interest in keeping the open source movement healthy. In
addition I have been involved with teaching university courses, which
is one area that is impacted heavily by the copyright debate. Finally,
I am a citizen and a member of my culture, and I have deep concerns
that bad copyright rules are robbing us of our cultural history and
threatening our cultural future.

Fair and consistent copyright
-----------------------------

First of all, I would like to state that I believe in the principle of
taking only that which is freely given. If a copyright holder --
whether a software company, an individual, or a media company --
asserts that their material should not be copied without compensation,
then they should be free to do so. Furthermore I have few problems if
the law imposes penalties on people who steal that work, PROVIDED
that:
- The laws are clear
- The laws are enforced consistently
- The penalties are proportionate to the infringement
- The laws are governed by the same rules that every other law is,
including the presumption of innocence

As far as I can tell, few of these conditions hold either here or in
the United States. I am particularly upset with the way that media
and software companies assert that piracy is wrong on the one hand,
and take a "nudge, nudge, wink, wink" approach to illegal copying on
the other.

Microsoft's approach to Windows is educational here. On the one hand
Microsoft decries piracy and puts into place all kinds of noxious
licencing to prevent it. And yet, people still download and use
Windows illegally. If Microsoft really wanted to prevent this piracy,
they could -- but they don't, because if the only people who used
Windows were those who had legal licences to do so, Microsoft's share
of the operating system market (and its corresponding share of our
attention) would fall considerably. Furthermore, whenever Microsoft
does make noises to assert its copyright, the public outcry over its
draconian actions causes it to retreat. At the end of the day, illegal
sharing of Windows unfairly subsidizes Microsoft. That is not to pick
on Microsoft too much. The same policy holds for all software creators
who require licence keys and registration for their software.

The same situation holds for media and music companies. When they
enforce their copyright they are (rightly or wrongly) seen as
harsh and uncaring. But they have a vested interest in making sure
that people like me pay attention to their music and movies. If I turn
my attention to material released under Creative Commons licences
instead, they lose my attention and my business. So it is in their
interest to make sure that some piracy occurs, if only so those who
never would have paid money for their product continue to keep that
product in their awareness.

Making matters worse is that the penalties around copyright are so
ambiguous. The previous copyright bill specified some penalties, but
those penalties were both disporportionate to the cost of the
infringement and certain to be enforced inconsistently.

This does not even get into grey areas like the CD levy that
simultaneously attempted to compensate copyright holders while keeping
filesharing illegal. Although (from what I understand) a court later
made these rules consistent, the original intention of this levy tried
to have it both ways, profiting from filesharing while keeping it
illegal. This is the kind of mixed-up motivation that confuses
everybody. Although many CD-Rs do not hold shared music, I can agree
to a levy that allows filesharing. I can also get behind removing the
levy and keeping filesharing illegal. I cannot support proposals that
try to have it both ways.

I disagree strongly with the presumption of guilt that pervades the
copyright debate. The CD levy is one such assertion of guilt -- we pay
the levy whether we use those CDs to share files or not. Takedown
notices are another such presumption of guilt -- one that provides an
easy mechanism against the freedom of speech. But perhaps the
presumption of guilt I object to most is the criminalization of
reverse engineering.

Remix culture
-------------

As should be apparent from the previous section, my approach to
copyright is not the same as that of "remix culture". Having said
that, I see where this culture is coming from and I sympathise with
their views.

There is an inherent unfairness in the way copyrighted materials
(especially those from larger companies) are used. On the one hand, we
are bombarded with copyrighted corporate culture in the form of
advertisements, radio singles, video games and blockbuster movies. The
media companies want us to consume this culture and keep it forefront
in our minds. They want us to feel nostalgia about their products, and
sure enough we have incorporated their symbols and products into our
culture. But even as they bombard us with advertisements and
promotions (without compensating us for using up our attention spans)
they prevent us from using their products -- the symbols of our
culture -- in our communications and our art. We are allowed to rent
the Transformers movie as many times as we pay for it, but if we build
upon that culture by using a Transformers product in a music video or
remix, then we are in trouble.

Again, I think copyright holders cannot have it both ways. If they
meet their goals of turning their products into our culture, then
it seems unfair when we use that culture in our discourse and when we
build upon it. Having said that, I do not know of an effective,
consistent way to address this issue with copyright legislation. My
long term hope is that we turn to media and culture that is free of
such restrictions on our free expression, but that hope is faint.

A similar situation exists for the use of copyrighted materials in
education. Again, I believe that copyright holders cannot have it both
ways. By using copyrighted materials in the classroom our teachers are
treating that material as cultural material that should be stuffed
into the brains of impressionable students. To have that culture
snatched away from copyright holders is unfair.

As a former sessional lecturer, I can make one strong assertion in
this area: the compromise that the former Bill C-61 made in this area
is hideous. The idea of destroying all course materials after a course
has completed is ridiculous: instructors build upon and modify
previously-delivered content all the time, so asking those instructors
to destroy all their past work is counterproductive to the way that
they develop courses. It also serves as a great disservice to
students.

Digital locks
-------------

Bill C-61 would have made it effectively illegal to distribute
software that broke so-called "digital locks", which in effect were
any attempt by copyright holders to obfuscate their content. The Linux
world has had to deal with this nonsense in the realm of DVD playback
for years. The "digital lock" for DVDs is easy to decode, but
releasing this code scares Linux distributors so much that they refuse
to include this software in their distributions. That means that a
simple task like playing a DVD on Linux becomes stupidly difficult.

There are a lot of aspects of this situation that bother me. Primary
among them is the idea that developing alternative playback systems
for DVDs (or music files, or e-books, or encrypted shares, or anything
else) should be illegal. It is difficult to express how deeply this
idea is against the public interest. It effectively gives the media
distributors exclusive monopolies over the way their content is used,
which precludes competitors from innovating new technologies that use
that content. For example, Personal Video Recorder technology is
hugely popular with consumers, but I question whether they would have
been developed by cable networks independently of TiVo.

In a world where digital locks exist, it would be standard practice
for cable companies to put "digital locks" (however weak) on their
content, and an upstart company like TiVo would have a much more
difficult time competing in the market, because it would have to ask
permission of the media companies before implementing its product.

This principle applies to all kinds of goods and services, not just
TiVo. One of the hot trends in the Internet realm is "mashing up"
services from different providers in interesting ways. The digital
lock sections of Bill C-61 stifle such creativity.

I believe that rights to content should be independent of the way that
content is played back. If a person purchases or rents a DVD, that
person should be allowed to play that DVD on their Linux computer, on
their video iPod, as an audio-only stream on their MP3 player, or any
other way they wish. Not only would all of these forms of playback
have been illegal under the previous Bill C-61, but distributing the
tools to permit those alternative playback mechanisms would have been
illegal. In my mind, this is unambiguously wrong. There should be a
strong distinction between possessing and distributing tools that
could potentially be used to infringe copyright, and actually
committing those infringements. The tool should not be illegal. The
act should be.

The computer security world learned this lesson a long time ago. Tools
that can potentially be used to break into computers and computer
networks are not only freely available, but are actually developed and
maintained by computer security experts. Why? First of all, such tools
can be used by computer administrators to test the vulnerability of
their networks to attack. But just as importantly, such tools can be
used in ways that have nothing to do with crime, such as monitoring
internal network resources. Although the situation with copyright is
not exactly the same, I see some strong parallels -- technology that
allows independent playback is the same technology that allows
format-shifting, which is the same technology that allows people to
copy files for general use. Just because there is one bad use for this
technology does not mean it should be illegal.

This problem is going to crop up in many different technologies,
including those that don't exist whenever this bill is put into law.
Right now there is an issue of taking DRMed e-books and playing
them back on Braille terminals. Anybody who rents or purchases an
e-book should be able to access that content however they wish, but
in many cases this will become illegal with digital locks enforcement.

Another aspect of this topic concerns rental vs ownership. Some
companies attempt to say that because we rent or lease a work instead
of purchasing it outright, we have no rights to shift the format of
that work or play it back using our own players. This is wrong
reasoning, and the copyright bill should reflect this.

Finally, I would like to bring up another lesson the computer security
world has learned the hard way: obscurity is not security. One big
problem with the digital lock clauses of the previous bill was that
digital locks did not need to be strong to be supported by the full
weight of the law. DVD encryption is weak, but under the law it is
just as illegal to decrypt a DVD as it would be to break a file
encrypted with worthwhile technologies such as AES. This encourages
sloppy encryption, which is both bad and unneccessary. It is bad
because poor encryption promotes a false sense of security. It is
unnecessary because copyright itself should be sufficient assertion
under the law that material may or may not be copied, regardless of
the degree to which it is encrypted. Just as it equally illegal for me
to steal a bike from your porch whether or not that bike is locked,
protection under copyright should be independent of the encryption
applied. Because copyright holders disappear and official decryption
sources become unavailable (as was the case in Microsoft's
"PlaysForSure" technology), the concept of encrypting data to protect
it from copyright theft is an excellent mechanism to deprive us of our
cultural heritage.

Copyright length
----------------

Although I believe in the principle of strong copyright, I also
believe in the principle of a strong public domain. The length of
copyright terms have been extended again and again, which is not only
against the original principles of copyright but also destructive to
our cultural heritage.

The scuttlebutt is that media companies like Disney are behind endless
copyright extension, and the gallows-humour joke is that anything
produced after Mickey Mouse made his first appearance will never fall
into the public domain. This is tragic. I have no problem with Disney
maintaining control of its copyright on Mickey Mouse indefinitely. I
have huge problems with all of the other copyrighted material that is
being forgotten and lost forever because it cannot enter the public
domain.

For example, some time ago I started hunting down the works of a
author named Bernard Wolfe. As far as I know all of his titles are
out of print, and there is little chance that his estate will
republish them. And yet, his works are excellent and deserve to be
remembered. If copyright keeps getting extended, his work will never
enter the public domain and can therefore never be archived by
organizations such as Project Gutenberg.

I was able to access Wolfe's novels because they were archived in my
university library. However, there are many other popular culture and
ephemeral materials that university libraries do not purchase. That
popular culture value is of enormous value because it provides
insights into our culture that are not contained anywhere else.
Unfortunately, a lot of that culture could be lost unneccessarily.

The frustrating aspect of this is that it is trivial to fix. I expect
it is against WIPO protocol, but it is not hard to think of
copyright systems that work a lot better:

0. Upon creation, the expression of a work enters copyright. This
copyright could last ten years.

1. Copyright could be renewed indefinitely. The copyright owner would
have to produce a copy of the work, an intent to register, a means of
contact, and potentially a small fee. This copyright could be renewed
as early as a year before the ten year period is up.

2. Copyright can be assigned in wills and by contract.

3. If copyright is not renewed by the copyright owner ten years after
the last renewal, it enters the public domain.

Such a scheme would protect the interests of companies like Disney --
so long as a lawyer remembers to renew the copyright every nine years,
Mickey Mouse will remain Disney property forever. Meanwhile, those who
don't care about their copyrighted material any more (because they
died, because their work has no commerical potential, or because they
have forgotten about the work) will let the copyright lapse. They will
still be able to use their works, but they will not be able to do so
indefinitely.

Before database technology and the Internet, such a scheme may have
been difficult to administer. These days it would be relatively cheap
an easy -- no harder than renewing a domain name. Anybody who would
like to licence the work can do so by looking in the copyright
database for contact information. Because first rights to the
copyright always lie with the copyright holder and there is a safety
margin when renewing, we can avoid sniping. People and organizations
could let their copyright lapse quickly, or preserve their copyright
to hand down through the generations. We would have to keep the cost
of copyright renewal cheap, but we could legislate that.

I am sure there are flaws with this approach, but they are not
obvious ones. Certainly I see such a system being much more effective
at balancing the desires of copyright holders with the public good
much more effectively than the current system.

I have seen similar approaches proposed many times. Although
considerably different than the current system, I would strongly
encourage the Canadian government to put such a scheme into law and
fight for it on the international stage.

Conclusion
----------

Thank you for taking the time to consider this submission. There is a
lot more that can be said about copyright, but this submission is long
enough. My intention was to articulate my position and to highlight a
few areas that I feel have gone neglected in this discussion. I hope I
managed to achieve this goal.