Friday, September 04, 2009

My Copyright Consultation Submission

The Copyright Consultation wraps up on Sunday, September 13, so there's just over a week left to make your submission! I finally finished mine today. Here it is.

Thank you very much for receiving this submission, and for holding this consultation in the first place. I hope that hearing the views and concerns of all Canadian stakeholders will lead to new copyright legislation that is more balanced and forward-looking than the deeply flawed Bill C-61.

The primary reason for this submission is to express, in the strongest terms possible, my opposition to the DMCA-like anti-circumvention provisions of Bill C-61. Banning all circumvention of technological measures (as opposed to just circumvention for the purposes of infringement) and banning technologies that can be used for circumvention are extreme measures that destroy all balance in copyright.

We do not achieve balance by allowing copyright holders to decide for themselves exactly how their works may be accessed and then legally protecting the technologies that enforce those decisions. If a consumer has purchased a copyrighted work and a technological measure attempts to, for example, override Fair Dealing, protect the work beyond its copyright's expiration, or revoke access on the whim of the distributor, the consumer must be allowed to circumvent that measure to access the work.

The DMCA has been wholly ineffective in preventing widespread copying in the USA. The realities of modern computing and communication -- that copying and distribution now have essentially zero cost -- have led to an explosion of file sharing in that country, just as they have here in Canada and in the rest of the world. The anti-circumvention provisions of the DMCA didn't stop DVD-CSS or FairPlay from being defeated. Rather, they have been used and abused to limit interoperability, deny access to persons with disabilities, disrupt security research, and slow innovation. The American situation is absolutely not one we should be trying to recreate here.

Instead, I believe we should take a wider view on modernizing copyright, as I will explain in my responses to the five specific questions posed for the consultation.

1. How do Canada’s copyright laws affect you? How should existing laws be modernized?

I am affected by copyright law both as a producer and a consumer of copyrighted materials. Professionally, I am a software developer and a published author. Like most members of the general public, I am a consumer of music, movies, and the written word. I am a strong supporter of Canadian artists.

In both my professional and personal lives, I am a user of, contributor to, and advocate for Free and Open Source Software. While this type of software is usually distributed without charge and without any restrictions on end users, it relies on copyright law to control distribution and use in derivative works. Free and Open Source software thrives in open environments, and it is vulnerable to abuse of copyright law to restrict compatibility and interoperability with other software and hardware.

Canadian copyright law is in need of modernization. In particular, I believe it should be simplified and brought into line with current technological realities and public sentiment.

Copyright law currently just doesn't feel relevant to most individuals, especially younger people. Millions of Canadians engage in file sharing, without believing that they're really doing anything wrong. For most people, sharing feels good. Sharing music tends to build communities of fans and promote the artist whose work is being shared.

The overall effect of a decade of file sharing on the music industry has been most decidedly negative, but in the last few years, we have seen dramatic growth in online music sales beginning to offset the losses. It is hard to pinpoint the reasons for this change, but the music industry's long-overdue move to abandon DRM could be one of them. It is also too early to tell whether, given enough creativity and technical savvy on the part of artists and the industry, this could mark the beginning of a turnaround.

What is abundantly clear, however, is that file sharing is not at all comparable to commercial, for-profit copyright infringement. If non-commercial copying is to be outlawed, this should be specified expressly in copyright law and the punishment must fit the crime. In the USA, individuals have faced multi-million dollar lawsuits for sharing a handful of files. This is an unreasonable and disproportionate response. Statutory fines on the same scale as a speeding ticket (total, not per file or per transfer) would seem much more appropriate.

Moreover, copying for one's own personal use (and for the use by other members of one's household) should not be subject to any copyright restrictions at all. Once a consumer has legitimately purchased a work, he should not be prevented from making a backup copy or transferring the work to another format or device. Any restrictions only undermine the credibility of copyright and artificially diminish the value of new technologies that could otherwise help users enjoy the content they have purchased.

In the not-too-distant past, copying and distributing creative works was difficult and expensive, which meant that these acts were generally only carried out for commercial purposes. If someone was going to make money from copying the work, it certainly made sense to ensure that it was the creator, so as to provide an incentive to create. Today, copying and distribution is effectively free and instantaneous, making personal and non-commercial copying commonplace. Copyright law should reflect this reality.

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

Technological neutrality and flexibility are key to ensuring that copyright law can withstand the test of time. Rights and exceptions can be specified without ensorsing or banning particular technologies, leaving the courts with sufficient flexibility to apply the principles to the relevant technologies of the day. Bill C-61 was very poor in this regard, attempting to carve out exceptions for specific uses of specific technologies, many of which were already obsolete.

3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

I believe that all of the changes I have described so far would have a positive effect on public perception of the credibility and relevance of copyright law. If fewer Canadians are inclined to violate copyright law, then creators will be better able to receive the benefits that the law intends.

Beyond that, the best way to foster creativity is to ensure that copyright law does not negatively affect people's ability to create new works based on existing ideas. Creative people have always built on what has come before, and with the help of technology that is now more true than ever. More flexible Fair Dealing, most especially including parody and satire, would be helpful in this regard, and certainly the public domain must be protected by not extending the current term of copyright.

4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?

Once again, I believe that technological neutrality in copyright is key to fostering competition and investment in Canada. Banning particular technologies would be damaging to the software and electronics industries.

5. What kinds of changes would best position Canada as a leader in the global, digital economy?

Certain large players in the content industries are having trouble adapting to the new, digital economy, and they are pressing for extreme changes to the copyright balance. It is worth noting again that these changes have not had the desired effect in other jurisdictions that have adopted them, and that artists and creators, themselves, are not at all convinced.

I believe that the more reasonable proposals described so far in this submission would be much more effective in helping position Canada as a leader in the global, digital economy.

Thank you again for receiving and considering this submission.

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