Why do some people claim that Canadian copyright is "weak"?

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. Sookman.

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.

1. 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.
2. 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.

Sookman: Provide protection against circumvention of TPMs that are required by the WIPO Treaties and that comport with international standards

Sookman: These treaties provide an internationally recognized norm for reducing digital piracy.

1. 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.
2. 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.
3. 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.
4. 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 illegal.

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 holders.

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 cases just 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 "making-available right"

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 uploads.

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.

Sookman: Establish new exceptions to facilitate private uses of works where justified, and do not adopt "fair use" or an "expanded fair dealing" provision

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 reforms.

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 another.

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 is legal.

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 my Neuros OSD, format shifted on my Ubuntu PC, and then watched the program (commercial and all) with a mobile device while in transit.

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.

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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 Copyright Canada.