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Article first published in Canadian New Media, Decima Publishing.

Republished with permission.

Volume 8, Issue 13 July 7, 2005

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Copyright Act protection for rights management inappropriate

Russell McOrmond, a copyright activist and webmaster for www.digital-copyright.ca, submitted the following in response to articles in the June 24, 2005 issue of Canadian NEW MEDIA.

Recent comments by Canadian Recording Industry Association head Graham Henderson regarding technologies that claim to stop unauthorized copying, and the relationship of those to the workings of the free market, should give Canadian NEW MEDIA readers pause for thought.

Both Henderson's suggestion for subscription radio and Bill C-60 (CNM, June 24/05) is to propose to mandate or legally protect technological protection measures (TPMs) that claim to protect copyright. Henderson claims there are relatively inexpensive and simple technological fixes to accomplish his goals. When a technology vendor claims they can stop people from copying works without permission, we must ask how they accomplish this goal.

While TPMs can provide access control and authenticity, they can't directly control the creation of copies. All so-called "copy control" technologies either use access controls (like the technique used on DVD movies), or deliberate defects in the media (used on some music CDs) that behave certain ways with specific access technology.

Media defects do not require any circumvention to get around, as it is sufficient to use access technology other than that targeted by the defect. As one example, copy-controlled CDs that target Microsoft Windows users are invisible to anyone not using Microsoft Windows. In many cases Microsoft Windows users can bypass these controls simply by holding down the shift key when they insert the CD.

Other media defects make the CDs unusable on legitimate CD players, making "copy controlled" CDs harder to sell as consumers become uncertain if legally purchased CDs will work with their audio equipment.

Copyright and digital locks

Access control TPMs are often compared to locks on a door as they keep people without keys out. Copyright is a set of legal limits to what people who already have access are allowed to do, similar to rules for what people already in your home are allowed to do. Since TPMs and copyright accomplish quite different goals, it should be obvious that one can't be used to protect the other.

Access controls are of considerable benefit to the providers of the technology. They create a market where, in order for an audience member to access purchased content, they must also purchase specific brands of technology that contain the right access keys. For example, in order to access songs purchased from iTunes one must use technology from Apple, and to access songs purchased from Puretracks or Napster Canada you must use technology from Microsoft. As a non-consumer of Microsoft or Apple, I am forced to be a non-consumer of iTunes, Puretracks and Napster.

Policy makers long ago recognized the harm of allowing the purchase of one product to be tied to the purchase of another. This anti-competitive technique is known as "tied selling," and is part of section 77 of the Canadian Competition Act. Access controls should not be protected in copyright law, with any copyright related use of this technology prohibited or severely regulated. If access to culture is tied to the purchase of specific brands of technology, these vendors will become excessively powerful. They will not only be able to dictate what features may exist in technologies that audiences use to access culture, but will also be able to dictate terms to the content industry that wish to reach those audiences. We already have problems with the market for music in Canada. The Canadian Independent Recording Artists' Association (CIRAA) reports that less than 5% of Canadian musicians are signed to labels. While most of those musicians who do have recording contracts are not with the major labels represented by CRIA, CRIA reports that they represent over 95% of the Canadian recorded music market. This is a clear indication of a non-competitive market in need of correction.

While the market control of technology companies offering access controls can easily replace the market control of CRIA, I believe that replacing one harmful monopoly with another will only further harm the interests of Canadian creators and their fans. I believe the best solution for creators and audiences is for public policy to protect a full spectrum of development, distribution and funding options.

Those options can involve skipping the current intermediaries, whether specific major labels, broadcasters, publishers or technology companies.

This might include authorized P2P file-sharing. While this is good Canadian cultural policy protecting cultural diversity and cultural sovereignty, the benefits are to be gained at the expense of the special interests who have been the primary promoters of the backward-facing policies seen in C-60.

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