In a series of postings over the years,
lawyer Howard Knopf has detailed how Canadian Copyright law is strong
(protects incumbent copyright holders), including many ways that
Canadian law is stronger than that of the USA (See: 21
Reasons Why Canadian Copyright Law is Already Stronger Than
Example of How Canadian Copyright Law is Stronger than US - and
Another Possible US Treaty Violation
I had a recent twitter conversation with lawyer Barry
Sookman, who has clients in the recording, motion picture
and proprietary software industries. As a response to his
tweet, "Canada again named to USTR’s Priority Watch
List for weak IP laws", I
said "Canada being on the USTR priority watch list for
having strong Copyright (stronger than US in many ways) only makes
list a joke". He then claimed I was wrong, pointing me his
submission to the summer 2009 copyright consultation.
His submission didn't provide
me with what I was looking for, which was something as detailed as
what Mr. Knopf has authored.
Mr. Sookman's submission he
said (multiple times) that "Canada is viewed as a country in
which laws to address digital piracy are weak, ineffective, or
non-existent." While it is true that many view it that way, I
was looking for references as to why people believe this as I don't
believe this viewpoint is correct. The references were not to details
of why he or others believes this, but to other organizations that
share that belief.
Saying how Canada is viewed is
a circular argument as, when you look into the background, the source
of that belief is the same set of special interest groups which are
Mr. Sookman's primary customers: the recording, motion picture and
proprietary software industries. This set of sources were behind the
Conference Board of Canada's report that needed to be recalled given
the authenticity of the claims were recognized as suspect.
What remains in Mr. Sookman's
submission is new copyright reform proposals in the form of a series
of principles and specific recommendations. While I agree with some
of the principles, I disagree with many of his specific
recommendations as I believe they will be harmful to the interests of
creators. While his customers are the recording, motion picture and
software manufacturing industries, his submission seeks to suggests
that his recommendations would be good for all Canadian creators.
There are many times when the
policy proposals for different copyright holders conflict. We can
see this with the proposed expansion of the private copying regime
which is supported by Canadian composers and performers, but opposed
by the (largely foreign) major label recording industry. It has been
unfortunate that policy makers, including Heritage
Minister James Moore, has been confused when it comes to
who can be said to represent the overall music industry in Canada.
I will highlight parts of his
submission to illustrate differences in policy goals.
Sookman: Do not
regard copyright reform as a "zero-sum game" or succumb to
the philosophy of unrestricted user "rights."
If you only look
superficially, copyright reform is a "zero-sum game". The
activities which Copyright regulates are activities which are natural
for human beings to carry out, such the use of tools to communicate
with each other. What copyright does is take activities which one
person would naturally do on their own, and say that in order to do
this with respect to specific creative works they must gain
permission from someone else.
As a society we have decided
that this transfer of control of some uses of communications tools is
in societies best interests, in that we gain more by having copyright
holders be in control of some activities than if the general public
retained that control. At this level I strongly agree with Mr.
Where we disagree is on some
of the specifics, including the times when limiting the control of
copyright holders is not only in the best interests of society but in
the interests of copyright holders themselves.
Mr. Sookman clarifies that,
"It is often said that copyright law should promote a balance
between creators and users." For me that balance is articulated
in the United Nations Universal
Declaration of Human Rights, specifically the balance
between the relevant interests articulated in Article 27.
- Everyone has the right freely
to participate in the cultural life of the community, to enjoy the
arts and to share in scientific advancement and its benefits.
- Everyone has the right to the
protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author
It is important to note that
just because it says "freely to participate", that does not
mean free as in free beer (no money), but free as in free speech and
free markets. It is also important to note that authors should have
"the protection of the moral and material interests", which
is not the same as having absolute control.
protection against circumvention of TPMs that are required by the
WIPO Treaties and that comport with international standards
treaties provide an internationally recognized norm for reducing
- There is no requirement for
Canada to ratify the 1996 WIPO treaties, just as there is no
requirement for the USA to ratify the Rome Statute of the
International Criminal Court, which it signed but never ratified.
- The actual treaty text is
quite flexible and does not require the legalization or legal
protection of non-owner locks on communications technology, or
anti-competitive (brand imposing) locks on content.
- It is quite reasonable for
Canada to adopt those parts of the treaty which are seen to benefit
Canada without any harmful aspects, or ever ratifying. Treaties do
not need to treated as an all-or-nothing exercise, with people who
agree with some aspects of the treaty falsely claiming that the only
way to adopt any good ideas it to ratify these two treaties.
- There is just as much
evidence to suggest that the policies promoted in the 1996 treaties
have increased copyright infringement, as evidence that they have
decreased infringement. I think the jury is still out, especially
when including independent studies that don't take as an axiom the
very policies which need to be adequately analyzed.
Mr. Sookman suggests that,
"TPMs act as enablers of innovative ecommerce services and new
business models". Earlier this week I discussed how granting
authors control over what brands of technology can be used to access
their works (See: When
consumer choice is not enough: Dishonest Relationship Misinformation
(DRM)) is harmful to the interests of copyright holders. This is true even if we ignore for the moment that any services or
business models that are dependent on non-owner locks on technology
are essentially commercial exploitation of a form of theft. Whether
we are talking about commercial copyright infringement or non-owner
locks, we should all at least agree that we shouldn't be enabling or
legally protecting people making money on activities which should be
Mr. Sookman appears to be
working under the idea that if we grant more control to copyright
holders, that they will make more money. I believe there is
considerable evidence to the contrary.
In a free market situation we
would be free to allow different producers to experiment and see
which ideas work and which ones fail.
We have a problem in
copyright, in that the statistics used to allege losses in the
marketplace do not differentiate between market failure due to
mistakes being made by copyright holders, competition from legitimate
alternative business methods, and infringement. I would like Mr.
Sookman to detail how he or his clients claim to know that the losses
they measure are due to infringement, rather than the equally valid
possibility that a large component is due to their use of
anti-competitive locks on content.
I'm not suggesting that there
are no losses that can be attributed to infringement. What I am
suggesting is that there are other potentially greater influences
which should be focused on first, and that the 'solutions' to
infringement should not themselves reduce the revenue of copyright
In my case I stopped
purchasing music CDs when the recording industry was putting
deliberate defects on them which meant that they were no longer
interoperable with all the devices I owned. I have never been (and
won't become) a customer of any of the platform dependent music
stores (iTunes, etc) which the major labels promote. I am instead a
customer of the platform-neutral eMusic which the major labels Mr.
Sookman represents refuse to make their music available on (in some
not to Canadians, as with American record label Epic, owned
by Sony Music Entertainment.)
That is money that the major
labels would have seen from me in the past, but that they haven't
seen in the past 10 years. I know that I show up in their statistics
as if I were a music copyright infringer, something that is factually
incorrect. The same is true of the proprietary software industry
where my usage of legal Free/Libre and Open Source Software (FLOSS)
is mixed in with their infringement numbers, largely because IDC
incorrectly estimates FLOSS usage. (See: Lies,
Damned lies, and IIPA/BSA/etc statistics.)
Sookman: Establish a
While there are many different
interpretations and form of the "making-available right",
Mr. Sookman clarified which one he means by stating, "It makes
proof of infringement much easier without requiring rights holders to
collect information about file-sharing activities from individuals
who download infringing files.". In other words, it allows
copyright holders to allege infringement without having to acquire
evidence of infringing activity.
This is something we clearly
don't need in Canadian law. There should always need to be actual
evidence of an allegedly harmful activity before the law can be used
to go after someone.
It is trivial for copyright
holders to first use the information disclosed by intermediaries such
as BitTorrent sites to determine if a given file being shared is
actually owned by the copyright holder. They can then join the
torrent as a peer and collect information about other members of the
torrent, as well as be downloading proof of the nature of the
infringing material being shared.
There are clarifications that
would be helpful in this area.
Our "communicate the work
to the public by telecommunication" aspect of our Copyright act
could be clarified with the WIPO treaty language of, "including
the making available to the public of their works in such a way that
members of the public may access these works from a place and at a
time individually chosen by them". While I think our current
copyright act is clear enough, there are those that worry that our
current act would be insufficient for on-demand scenarios.
We should be clear that our
"authorize any such acts" is clarified such that having
metadata documenting how to download material is seen as a form of
authorization. This is similar to, but not quite the same as Mr.
Sookman's suggestion to, "Clarify the law related to secondary
infringement to help address online piracy".
My concern with the use of
secondary liability is the same I have with intermediary liability. There is a belief held by some in the copyright industries that third
parties such as ISPs are in the best position to police copyright
infringement. This is simply a "pass the buck" policy as
it is copyright holders that know what works they are copyright
holders of, and are in the best position to detect any infringement
of these works. There is nothing wrong with copyright holders hiring
companies providing internet related services to help them, including
working with sites such as YouTube to implement filtering systems for
The problem with the rhetoric
is that copyright holders want to sit in their ivory towers pointing
fingers at everyone else, and wanting someone else to pay any costs
(financial, political, or brand) for any enforcement activities. Costs to brand is in my mind the main reason that these industries
have ceased targeting copyright infringers in lawsuits, and have
instead focused their political and other activities on third parties
which they allege are "enablers".
In a fair system, enforcement
activities would be a cost to the copyright holder of a given
business model. If a business model requires enforcement against
intended customers, and this enforcement causes customers to reduce
purchases, then it is the business model and not the law that needs
to change. I have no sympathy for people or corporations who want to
externalize the full costs of their own business decisions.
new exceptions to facilitate private uses of works where justified,
and do not adopt "fair use" or an "expanded fair
The major complaint here is
that "fair use" or "expanded fair dealing"
provisions create uncertainty in what is allowed and what is not
allowed. I argue that the complexity of copyright law itself,
including the many ways that our fair dealings regime doesn't
adequately carve out uses which people rightfully assume are not part
of copyright law, is the source of that problem.
Ever since the Section 92 in
2002, I have been saying that "clarifying and simplifying the
Act" should be moved from being the last entry in the lowest
priority group to being the top propriety that shapes any other
This suggestion by Mr. Sookman
that we not adopt expanded fair use/dealings is not the only proposal
within his submission that goes towards making copyright more complex
and less clear.
In the USA their Fair Use
doctrine was used by the courts in the Betamax
case to clarify that the personal time shifting of recorded
television does not need the copyright holders permission. Twenty
six years later technology has moved forward, and it should be
further clarified that time, device and format shifting should also
not require permission of the copyright holder.
This goes back to that balance
of rights, and how sometimes the overall system works better when a
specific activity is under the control of one person compared to
On the day that the new Star
Trek movie came out on DVD, I purchased it. I had already
seen it twice in the theaters, and wanted to have it available to
watch in more personal settings. I have watched it on a DVD player,
and format shifted to be able to watch on my OLPC as well as my Nexus One.
Under current Canadian
copyright law, time, format and device shifting without permission is
technically an infringement. My viewing of this movie on my OLPC and
my Nexus One is as infringing as recording a television show to watch
at a later date, something most Canadians do all the time and presume
I paid $30 for the DVD. If I
wasn't going to device/format shift the movie to work on all my
devices I would have paid $0, and not bothered acquiring it as it
would not have been worth that amount of money to me. I have
recently been creating a DVD collection -- ignoring outdated Canadian
copyright law and acting as if the DVDs have the value they would
under adequate fair use/dealings exceptions.
The same is true of television
where it is unlikely I would be paying as much as I do for Cable if I
wasn't able to time shift content, as well as access on multiple
devices. I have more than once recorded something from Cable TV with
OSD, format shifted on my Ubuntu PC, and then
watched the program (commercial and all) with a mobile device while
While these are examples of audience-focused exception to copyright which ultimately financially
benefits copyright holders by making their content more valuable, it
is important to look at other aspects of fair use/dealing. In most
cases (criticism, review, parody, news reporting) these are
exceptions that benefit fellow creators. This is not adequately
understood in the debate, which is that much of the balance that is
attempted in copyright law is to balance the interests of past
copyright holders with the interests of new copyright holders.
To summarize, what I saw in
Mr. Sookman's submission did not detail why he suggests that Canadian
copyright law inadequately protects the moral and material interests
of creators. What I saw was cyclically referenced attacks on the
state of our law, and a laundry list of reforms which can (and
should) be debated as to whether they would help or harm the
interests of Canadian creators.
Russell McOrmond is a self employed consultant,
policy coordinator for CLUE:
Canada's Association for Free/Libre and Open Source Software,
co-coordinator for Getting Open Source Logic INto Governments (GOSLING),
and host for Digital