The Canadian government’s affirmation for copyright reform in this month’s throne speech could have implications on technological innovation as well as the open source community, according to industry activists.
At last week’s Free Software and Open Source Symposium (FSOSS) 2007, held at Seneca College’s York University Campus in Toronto, Rory McGreal, associate vice-president of research at online Athabasca University, discussed his growing concern over new copyright legislation as well as Canada’s potential adoption of the World Intellectual Property Organization’s (WIPO) copyright treaty.
The international WIPO copyright treaty, adopted in 1996, provides additional protections for copyright due to advances in information technology. A controversial element of the treaty is it prohibits circumvention of technical protection measures (TPMs), a tool used to restrict the use of a digital work, even when such circumvention is legal under fair use rights.
“When you buy property you should own it, but some companies want to remove your property right and control the way you use their products,” McGreal said. “To pretend that the WIPO copyright treaty is a big deal around the world is simply not true as less than 50 per cent of countries have ratified it. It will only stifle innovation and harm the preservation of the public domain.”
McGreal argued that the original intention of copyright laws have been lost with the introduction of TPMs and other U.S. copyright legislation. He said that copyright laws were brought in to protect researchers and general public and encourage of learning and science advancement.
“It was not brought in to protect the author’s rights,” McGreal said. “It’s amazing to me how much copyright controllers have been able to morph a law into it’s exact opposite and have everyone believing that.”
But it doesn’t appear that the government has been listening to McGreal. In this month’s throne speech, the Conservative government prioritized copyright reform to “improve the protection of cultural and intellectual property rights in Canada.” This has led many to suggest that, like the U.S. Digital Millennium Copyright Act (DMCA), Canada could soon have elements of the WIPO copyright treaty entrenched into law.
“The government has always stated that the intention of the next series of copyright reform would be to enable Canada to ratify the WIPO copyright treaty,” Barry Sookman, a lawyer specializing in intellectual property litigation with legal firm McCarthy Tétrault’s Toronto office, said. “I would highly doubt the government would cherry pick and only implement some of its provisions.”
Sookman said he is in support of ratifying the treaty as it is critical to help build the legal infrastructure necessary to e-commerce in Canada. Sookman indicated that Canada signed on with WIPO in 1996 and had committed to ratifying the treaty, “so 11 years later, I think it’s about time Canada goes through with it.”
Not so fast, said Russell McOrmond, an Internet consultant and head of Digital Copyright Canada. The landscape in 1996, he said, was one where the Internet was still in infancy. McOrmond said the thinking from many U.S. politicians was that if technology could be abused to infringe copyright then private citizens should not be allowed to own and control that technology.
“Over 10 years has passed and I think most Canadians have realized that is nonsense,” McOrmond said. “Most of the innovation that has happened over the last 19 years hasn’t occurred because people have been denied access to own and control technology, but rather because they have been granted access to own and control technology. You can’t create a knowledge economy by making it harder for citizens to access the primary tools used to create and distribute information."
And in terms of the effect potential DMCA-like legislation would have in Canada, McOrmond described two sets of digital locks: one lock on content or software to ensure encryption and protect against piracy; and another lock on devices or hardware that disallows the owner of the device to be fully control of its use. The lock on hardware, McOrmond said, can create problems for software developers, especially in the open source community, trying to create products with functionality across a wide range of hardware.
“If you’re a software developer, before anything else, you need to know that your potential audience or customer has the ability to make their own software choices, because otherwise, how can they possibly choose your software,” McOrmond said. “Anything that locks hardware owners out of the ability to make their own software choices harms the entire software industry, including open source.”
Sookman fervently disagreed, saying that legislation which supports TPM provisions will have no effect at all on developers in the open source community.
“The main intent of TPM legislation is to prevent the hacking of proprietary programs or content from massive piracy,” Sookman said. “And there’s no requirement under the legislation for people to use TPMs. So, the open source community doesn’t have to use them nor do the people who own content, but the point is to create a regime where people can use it if they feel the need to protect their investments.” Sookman said that if software is delivered in a format that anyone can access it without restrictions, all it takes is one person to upload it onto the Internet to turn it essentially into freeware.
The last attempt for copyright reform occurred in 2005 when the Liberal government’s Bill C-60, which also aimed to implement the WIPO copyright treaty and its prohibition of TPM circumvention, was struck down by a non-confidence motion by the Conservative opposition.
