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

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 thatCanadian law is stronger than that of the USA (See: 21Reasons Why Canadian Copyright Law is Already Stronger ThanUSA's, 22ndExample of How Canadian Copyright Law is Stronger than US – andAnother Possible US Treaty Violation)

I had a recent twitter conversation with lawyer BarrySookman, who has clients in the recording, motion pictureand proprietary software industries. As a response to histweet, “Canada again named to USTR’s Priority WatchList for weak IP laws”, Isaid “Canada being on the USTR priority watch list forhaving strong Copyright (stronger than US in many ways) only makeslist a joke”. He then claimed I was wrong, pointing me hissubmission to the summer 2009 copyright consultation.

His submission didn't provideme with what I was looking for, which was something as detailed aswhat Mr. Knopf has authored.

Mr. Sookman's submission hesaid (multiple times) that “Canada is viewed as a country inwhich laws to address digital piracy are weak, ineffective, ornon-existent.” While it is true that many view it that way, Iwas looking for references as to why people believe this as I don'tbelieve this viewpoint is correct. The references were not to detailsof why he or others believes this, but to other organizations thatshare that belief.

Saying how Canada is viewed isa circular argument as, when you look into the background, the sourceof that belief is the same set of special interest groups which areMr. Sookman's primary customers: the recording, motion picture andproprietary software industries. This set of sources were behind theConference Board of Canada's report that needed to be recalled giventhe authenticity of the claims were recognized as suspect.

What remains in Mr. Sookman'ssubmission is new copyright reform proposals in the form of a seriesof principles and specific recommendations. While I agree with someof the principles, I disagree with many of his specificrecommendations as I believe they will be harmful to the interests ofcreators. While his customers are the recording, motion picture andsoftware manufacturing industries, his submission seeks to suggeststhat his recommendations would be good for all Canadian creators.

There are many times when thepolicy proposals for different copyright holders conflict. We cansee this with the proposed expansion of the private copying regimewhich is supported by Canadian composers and performers, but opposedby the (largely foreign) major label recording industry. It has beenunfortunate that policy makers, including HeritageMinister James Moore, has been confused when it comes towho can be said to represent the overall music industry in Canada.

I will highlight parts of hissubmission to illustrate differences in policy goals.

Sookman: Do notregard copyright reform as a “zero-sum game” or succumb tothe philosophy of unrestricted user “rights.”

If you only looksuperficially, copyright reform is a “zero-sum game”. Theactivities which Copyright regulates are activities which are naturalfor human beings to carry out, such the use of tools to communicatewith each other. What copyright does is take activities which oneperson would naturally do on their own, and say that in order to dothis with respect to specific creative works they must gainpermission from someone else.

As a society we have decidedthat this transfer of control of some uses of communications tools isin societies best interests, in that we gain more by having copyrightholders be in control of some activities than if the general publicretained that control. At this level I strongly agree with Mr.Sookman.

Where we disagree is on someof the specifics, including the times when limiting the control ofcopyright holders is not only in the best interests of society but inthe interests of copyright holders themselves.

Mr. Sookman clarifies that,”It is often said that copyright law should promote a balancebetween creators and users.” For me that balance is articulatedin the United Nations UniversalDeclaration of Human Rights, specifically the balancebetween the relevant interests articulated in Article 27.

  1. Everyone has the right freelyto participate in the cultural life of the community, to enjoy thearts and to share in scientific advancement and its benefits.
  2. Everyone has the right to theprotection of the moral and material interests resulting from anyscientific, literary or artistic production of which he is the author

It is important to note thatjust because it says “freely to participate”, that does notmean free as in free beer (no money), but free as in free speech andfree markets. It is also important to note that authors should have”the protection of the moral and material interests”, whichis not the same as having absolute control.

Sookman: Provideprotection against circumvention of TPMs that are required by theWIPO Treaties and that comport with international standards

Sookman: Thesetreaties provide an internationally recognized norm for reducingdigital piracy.

  1. There is no requirement forCanada to ratify the 1996 WIPO treaties, just as there is norequirement for the USA to ratify the Rome Statute of theInternational Criminal Court, which it signed but never ratified.
  2. The actual treaty text isquite flexible and does not require the legalization or legalprotection of non-owner locks on communications technology, oranti-competitive (brand imposing) locks on content.
  3. It is quite reasonable forCanada to adopt those parts of the treaty which are seen to benefitCanada without any harmful aspects, or ever ratifying. Treaties donot need to treated as an all-or-nothing exercise, with people whoagree with some aspects of the treaty falsely claiming that the onlyway to adopt any good ideas it to ratify these two treaties.
  4. There is just as muchevidence to suggest that the policies promoted in the 1996 treatieshave increased copyright infringement, as evidence that they havedecreased infringement. I think the jury is still out, especiallywhen including independent studies that don't take as an axiom thevery policies which need to be adequately analyzed.

Mr. Sookman suggests that,”TPMs act as enablers of innovative ecommerce services and newbusiness models”. Earlier this week I discussed how grantingauthors control over what brands of technology can be used to accesstheir works (See: Whenconsumer 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 orbusiness models that are dependent on non-owner locks on technologyare essentially commercial exploitation of a form of theft. Whetherwe are talking about commercial copyright infringement or non-ownerlocks, we should all at least agree that we shouldn't be enabling orlegally protecting people making money on activities which should beillegal.

Mr. Sookman appears to beworking under the idea that if we grant more control to copyrightholders, that they will make more money. I believe there isconsiderable evidence to the contrary.

In a free market situation wewould be free to allow different producers to experiment and seewhich ideas work and which ones fail.

We have a problem incopyright, in that the statistics used to allege losses in themarketplace do not differentiate between market failure due tomistakes being made by copyright holders, competition from legitimatealternative business methods, and infringement. I would like Mr.Sookman to detail how he or his clients claim to know that the lossesthey measure are due to infringement, rather than the equally validpossibility that a large component is due to their use ofanti-competitive locks on content.

I'm not suggesting that thereare no losses that can be attributed to infringement. What I amsuggesting is that there are other potentially greater influenceswhich should be focused on first, and that the 'solutions' toinfringement should not themselves reduce the revenue of copyrightholders.

In my case I stoppedpurchasing music CDs when the recording industry was puttingdeliberate defects on them which meant that they were no longerinteroperable with all the devices I owned. I have never been (andwon't become) a customer of any of the platform dependent musicstores (iTunes, etc) which the major labels promote. I am instead acustomer of the platform-neutral eMusic which the major labels Mr.Sookman represents refuse to make their music available on (in somecases justnot to Canadians, as with American record label Epic, ownedby Sony Music Entertainment.)

That is money that the majorlabels would have seen from me in the past, but that they haven'tseen in the past 10 years. I know that I show up in their statisticsas if I were a music copyright infringer, something that is factuallyincorrect. The same is true of the proprietary software industrywhere my usage of legal Free/Libre and Open Source Software (FLOSS)is mixed in with their infringement numbers, largely because IDCincorrectly estimates FLOSS usage. (See: Lies,Damned lies, and IIPA/BSA/etc statistics.)

Sookman: Establish a”making-available right”

While there are many differentinterpretations and form of the “making-available right”,Mr. Sookman clarified which one he means by stating, “It makesproof of infringement much easier without requiring rights holders tocollect information about file-sharing activities from individualswho download infringing files.”. In other words, it allowscopyright holders to allege infringement without having to acquireevidence of infringing activity.

This is something we clearlydon't need in Canadian law. There should always need to be actualevidence of an allegedly harmful activity before the law can be usedto go after someone.

It is trivial for copyrightholders to first use the information disclosed by intermediaries suchas BitTorrent sites to determine if a given file being shared isactually owned by the copyright holder. They can then join thetorrent as a peer and collect information about other members of thetorrent, as well as be downloading proof of the nature of theinfringing material being shared.

There are clarifications thatwould be helpful in this area.

Our “communicate the workto the public by telecommunication” aspect of our Copyright actcould be clarified with the WIPO treaty language of, “includingthe making available to the public of their works in such a way thatmembers of the public may access these works from a place and at atime individually chosen by them”. While I think our currentcopyright act is clear enough, there are those that worry that ourcurrent act would be insufficient for on-demand scenarios.

We should be clear that our”authorize any such acts” is clarified such that havingmetadata documenting how to download material is seen as a form ofauthorization. This is similar to, but not quite the same as Mr.Sookman's suggestion to, “Clarify the law related to secondaryinfringement to help address online piracy”.

My concern with the use ofsecondary liability is the same I have with intermediary liability. There is a belief held by some in the copyright industries that thirdparties such as ISPs are in the best position to police copyrightinfringement. This is simply a “pass the buck” policy asit is copyright holders that know what works they are copyrightholders of, and are in the best position to detect any infringementof these works. There is nothing wrong with copyright holders hiringcompanies providing internet related services to help them, includingworking with sites such as YouTube to implement filtering systems foruploads.

The problem with the rhetoricis that copyright holders want to sit in their ivory towers pointingfingers 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 industrieshave ceased targeting copyright infringers in lawsuits, and haveinstead focused their political and other activities on third partieswhich they allege are “enablers”.

In a fair system, enforcementactivities would be a cost to the copyright holder of a givenbusiness model. If a business model requires enforcement againstintended customers, and this enforcement causes customers to reducepurchases, then it is the business model and not the law that needsto change. I have no sympathy for people or corporations who want toexternalize the full costs of their own business decisions.

Sookman: Establishnew exceptions to facilitate private uses of works where justified,and do not adopt “fair use” or an “expanded fairdealing” provision

The major complaint here isthat “fair use” or “expanded fair dealing”provisions create uncertainty in what is allowed and what is notallowed. I argue that the complexity of copyright law itself,including the many ways that our fair dealings regime doesn'tadequately carve out uses which people rightfully assume are not partof copyright law, is the source of that problem.

Ever since the Section 92 in2002, I have been saying that “clarifying and simplifying theAct” should be moved from being the last entry in the lowestpriority group to being the top propriety that shapes any otherreforms.

This suggestion by Mr. Sookmanthat we not adopt expanded fair use/dealings is not the only proposalwithin his submission that goes towards making copyright more complexand less clear.

In the USA their Fair Usedoctrine was used by the courts in the Betamaxcase to clarify that the personal time shifting of recordedtelevision does not need the copyright holders permission. Twentysix years later technology has moved forward, and it should befurther clarified that time, device and format shifting should alsonot require permission of the copyright holder.

This goes back to that balanceof rights, and how sometimes the overall system works better when aspecific activity is under the control of one person compared toanother.

On the day that the new StarTrek movie came out on DVD, I purchased it. I had alreadyseen it twice in the theaters, and wanted to have it available towatch 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 Canadiancopyright law, time, format and device shifting without permission istechnically an infringement. My viewing of this movie on my OLPC andmy Nexus One is as infringing as recording a television show to watchat a later date, something most Canadians do all the time and presumeis legal.

I paid $30 for the DVD. If Iwasn't going to device/format shift the movie to work on all mydevices I would have paid $0, and not bothered acquiring it as itwould not have been worth that amount of money to me. I haverecently been creating a DVD collection — ignoring outdated Canadiancopyright law and acting as if the DVDs have the value they wouldunder adequate fair use/dealings exceptions.

The same is true of televisionwhere it is unlikely I would be paying as much as I do for Cable if Iwasn't able to time shift content, as well as access on multipledevices. I have more than once recorded something from Cable TV withmy NeurosOSD, format shifted on my Ubuntu PC, and thenwatched the program (commercial and all) with a mobile device whilein transit.

While these are examples of audience-focused exception to copyright which ultimately financiallybenefits copyright holders by making their content more valuable, itis important to look at other aspects of fair use/dealing. In mostcases (criticism, review, parody, news reporting) these areexceptions that benefit fellow creators. This is not adequatelyunderstood in the debate, which is that much of the balance that isattempted in copyright law is to balance the interests of pastcopyright holders with the interests of new copyright holders.

To summarize, what I saw inMr. Sookman's submission did not detail why he suggests that Canadiancopyright law inadequately protects the moral and material interestsof creators. What I saw was cyclically referenced attacks on thestate of our law, and a laundry list of reforms which can (andshould) be debated as to whether they would help or harm theinterests 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 DigitalCopyright Canada.

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