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(Strategis links updated June 25, 2003)

Submission to 2001 copyright reform consultation

This is my submission to the 2001 Canadian copyright reform process. You can read considerable background materials in an online forum called Canada DMCA Opponents which was created specifically to discuss this process from a specific perspective.

I also sent in a reply to the CMPDA submission, and co-signed a submission from the EFF (signed by EFC).

See also: Innovation Strategy 2002 submission.

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Table of Contents:

Copyright

Copyright (C) 2001, Russell McOrmond <http://www.flora.ca/>
Permission is granted to republish or include this document in your own materials, in whole or in part, as long as some form of acknowledgement is made. If the new work is a derivative work, please ensure that it is marked as such so that it will not be confused with my own writing.

Note: I considered using the Free Documentation License, but in this case I wanted people to use any ideas presented here in their own submissions. The importance is to ensure that specific ideas are presented as part of this round of copyright reform, and not specifically that these materials retain all their freedoms.

Summary

In order for a correct balance on copyright to be achieved we need to investigate a number of different relationships between copyright and other related Canadian laws, the differing and often incompatible needs of different copyright holders, as well as the needs of different constituencies such as authors, publishers and readers.

We need to first determine what we as Canadians are trying to accomplish with our Copyright Act. As part of this we need to decide whether we wish to use Copyright to encourage and/or enforce existing old-economy business models, or to allow and/or encourage potentially new models if a new economy is to emerge. Do we accept the idea that information should be treated as some new form of property, or do we reject that concept and try to provide a more balanced approach?

I will use myself as an example of a self employed consultant who makes use of copyright works, especially software governed under licenses that fall under the broad category of Free Software which is a well defined subset of what is commonly referred to as Open Source Software. The business models used in the Free Software industry are often quite different than those of the proprietary software industry, with the requirements of copyright law sometimes not only being different but incompatible. Aspects of copyright law that are often referenced as guiding innovation in the proprietary software industry can often become a strong barrier to innovation in the Free Software industry.

Copyright law must also find its place in relationship to other domestic Canadian laws and international agreements. As examples, Copyright law must never be allowed to be used as a justification for non-compliance with Canada's Competition Act, Access to Information Act, Privacy Act, or open procurement and standards requirements of NAFTA and AIT. When there is conflict, the balance must weigh in favor of these other laws, with the granting of temporary exclusive economic privileges afforded to copyright holders only being granted when not in conflict with other laws.

Introduction of Author

I am a self-employed, small-businessman who offers consulting and software services, focused on electronic communications, to both public and private sector clients. My clients are primarily in the non-profit, NGO and voluntary sectors. While employed by other companies previously, I opened my own business in the summer of 1995. I did business under my own name of "Russell McOrmond" until January of 2000 when I registered for the Ontario business name of "FLORA Community Consulting". In December of 2000 I registered the Canadian FLORA.ca Internet domain name.

I am also very active in the voluntary sector, most often bringing my skills in electronic publishing to community groups. I was involved early with the National Capital Freenet (was previously AA302), and in 1995 created FLORA.org Community Web which is an important part of the Community Networking movement within Canada. In order to encourage dialog on the current Copyright reform process from a sector of society that has not been well represented so far, I created and host the Canada DMCA Opponents forum.

When I was younger and first began to investigate computers and software, I did not put a copyright on any software that I wrote. I was assuming and desiring that this would place my software contributions into the public domain.

As I became more aware of the implications of Copyright and Patent law, I began to see how others were using these laws as a threat to my independence. I have never considered the economic priviledges associated with copyright, and the related ability of copyright to restrict others access to my work, to be an incentive to create more works.

My contributions, those written to be read by humans or interpreted by computers, were authored in the hopes that they would solve a problem or present a specific idea that was intended to be shared, explored, and improved upon by others who wished to share. In my mind it was not theft to share ideas as long as some credit was given to me, but did consider it theft to to take anothers shared ideas -- improve upon them -- and not share the results (a derivative work) with others. It is a foreign concept to me that an individual "genius" derives new ideas that are not simply derivatives of existing ideas.

From my initial investigations in the early 1990's (while in University and preparing to enter the workforce) I began to feel that CopyLeft, not traditional uses of copyright, would be the best method to protect my works. What I saw in the industry was a legal minefield set up by copyright (unknown potential restriction on the required reverse engineering to create compatible products), patents (one doesn't need to even be aware of a patent in order to infringe the abundant non-novel software patents) and trademarks which were seen to create enormous barrier to entry into the marketplace for my small business.

The only personal protection seemed to come from either working for a large corporation which took away my freedoms as an entrepreneur, or working in the growing Free Software industry. Since I wanted to both help protect my own freedoms as well as those of others, I chose to join the Free Software industry which has legal and research support to protect programmers and users of Free Software from larger industry players who were and continue to use court challenges to squash competition.

A new economy, or a new product for the old economy?

This copyright review process is intended to "ensure that the Copyright Act remains among the most modern and progressive in the world, as promised in the January 2001 Speech from the Throne." (Copyright reform introduction web-page).

Further, the introduction to A Framework for Copyright Reform indicates:

The federal government is committed to ensuring that Canada's copyright regime remains among the most modern and progressive in the world. The objectives to be met through the reform process are:

In trying to achieve this goal, some basic assumptions need to be explored about what the purpose of the Copyright Act is, who it should be serving, and what would be considered modern in the face of an ongoing transition from a primarily Industrial economy to the unknowns of the future Information economy.

If one goes to the website of the the World Intellectual Property Organization and reads their About WIPO they indicate:

The World Intellectual Property Organization (WIPO) is an international organization dedicated to promoting the use and protection of works of the human spirit. These works - intellectual property - are expanding the bounds of science and technology and enriching the world of the arts.

This organization, which Canada has signed treaties with and which Canada seems to be taking direction from, is introducing a new set of assumptions. These assumptions are that intellectual works should automatically be thought of as Intellectual Property.

The phrase "Intellectual Property" is a highly politically motivated phrase, biasing towards a very specific narrow interpretation of a number of related laws such as the Copyright, Patent, Trademark and other acts. This phrase pushes the use of an analogy to property that many disagree with, and it pre-assumes that the future intellectual economy will be based on the property-focused models from the industrial era.

The debate around whether information should be treated as property or not is an old debate. To read one viewpoint I agree with we can go to some of the debates around the origins of copyright in the United States, "The Founders' Constitution" (Article 1, Section 8, Clause 8, Document 12), and read a letter from Thomas Jefferson to Isaac McPherson which suggests:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.

In my own software discipline there is also obviously considerable writing on this idea, and we can also read from the Free Software Foundation's Words to Avoid which speaks of "Intellectual Property":

Publishers and lawyers like to describe copyright as ``intellectual property.'' This term carries a hidden assumption --- that the most natural way to think about the issue of copying is based on an analogy with physical objects, and our ideas of them as property.

But this analogy overlooks the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference.

This issue of language is also talked about in magazines such as in a recent Open Magazine editorial from July 2001 which indicated of Microsoft's Craig Mundie's commentary about Open Source software:

In one fell swoop, Mundie commandeered the knowledge economy and turned it into the intellectual property economy. This extraordinary bit of legerdemain equates intellectual capital with intellectual property, analogous to the 19th-century economic policy of tying the supply of money to the physical supply of gold/silver

We must keep the above in mind when considering any potential copyright reforms. Those of us who think about and are trying new business models that may form the basis for a new economy question whether or not the concept of "Intellectual Property" is necessary -- or even compatible with -- the creation of "opportunities for Canadians in the new economy".

The Three Rights

In discussions about copyright I have found that there are three very different types of rights/privileges that are being discussed. Part of the confusion around copyright happens simply because people confuse these three different rights, when in fact it would be best for discussions if we separate them. It is also very important to separate them when we discuss things such as the term(length) of copyright.

These three rights are often discussed in terms of "moral rights", "mass-copying rights", and "access rights", with the last two often lumped together under the phrase "economic rights".

Moral rights
Moral rights are already defined in subsection 14.1(1) of the Canadian Copyright act. The essence is that the author of a work has the right to the integrity of the work and to be associated with the work as its author.

In a potential information/knowledge economy it can be easily argued that this is the most important of government granted right. A person's ability to sell their information services is very much based on their ability to get credit for past work and to have the distribution of that work act as advertising for their skills.

In a broad sense, many of the Open Source and Free Software licenses attempt to codify in these agreements these moral rights. As an example, the simple Berkeley-based copyrights state:

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

  1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
  2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
  3. The name of the author may not be used to endorse or promote products derived from this software without specific prior written permission.

When discussing the term of copyright it is often moral rights that are used to justify increases in length. Many of us who in general oppose the lengthening of the term of copyright would support the lengthening of moral rights assuming that this right is uncoupled from any other rights.

Mass-copying rights
When reading on the history of copyright it is obvious that many of the concepts were conceived with the advent of the printing press. At this time in our history the only means of copying were either by-hand or by-machine, with the machine copying only happening in an industrial context. With the ability to make copies of books fairly cheaply it became clear that the economic possibilities that were created should be decided by the authors of those books.

As I read, I received the distinct impression that copyright was intended to be an industrial regulation, and not one that regulated the rights of average citizens. Authors were to be able to decide what industrial-publisher would be publishing their works, and would have the legal tools to negotiate the terms under which this mass-copying would happen.

There seemed to always be three constituencies when discussing copyright, and each have their own interests: authors, publishers, and readers. While copyright seemed to have started as a regulation of publishers where the rights were held by authors and obvious benefit was received by readers, we are quickly moving into a very different relationship where all the benefits and rights are being held by publishers and copyright has become a regulation against readers.

We need to quickly return copyright to being a regulation on mass-publishing where economic benefits are received by authors in order to encourage innovation. If we are to move into an information economy, however, we need to ensure that the basic rights of citizens - especially as readers - are not violated by the over-enforcement of economic privilege being lobbied for by industrial publishers.

New relationships are being discussed from the perspective of the authors. For scientists we now have an active protest initiated by the Public Library of Science:

The Public Library of Science is a non-profit organization of scientists committed to making the world's scientific and medical literature freely accessible to scientists and to the public around the world, for the benefit of scientific progress, education and the public good.
Their open letter to publishers contains the following pledge:
To encourage the publishers of our journals to support this endeavor, we pledge that, beginning in September, 2001, we will publish in, edit or review for, and personally subscribe to, only those scholarly and scientific journals that have agreed to grant unrestricted free distribution rights to any and all original research reports that they have published, through PubMed Central and similar online public resources, within 6 months of their initial publication date.
This initiative seems to bring to scientific publishing the idea that moral rights should be protected (as they are not calling for the research to be put into the public domain) for a long period, but that the economic rights relating to access and copying of materials should only be restricted for a maximum of 6 months.

This is in agreement with a belief I have had for some time which is that the right to industrial copying of materials should be tied not to the death of an author, but to the performance/publishing date and to the type of information. Information that is "news" should probably only be restricted from copying in the order of days or weeks, scientific research and computer software in the order of months less than a year, and only books and such literary works in the order of years. In any case, 50 years is already far too long for economic rights associated with copyright, but potentially not long enough for moral rights.

We also have musicians like Courtney Love, lead singer of Hole, who is publishing her "LOVE'S MANIFESTO" (Also published in Salon magazine as "Courtney Love does the math") which is a transcript of her speech to the Digital Hollywood online entertainment conference, given in New York on May 16, 2000. She opens this speech with:

Today I want to talk about piracy and music. What is piracy? Piracy is the act of stealing an artist's work without any intention of paying for it. I'm not talking about Napster-type software.

I'm talking about major label recording contracts.

Some musicians are starting to offer their music in the EFF Open Audio License, including bands participating in the Music Share-In Festival.

This prompted me to ask the following suggestion in the canada-dmca-opponents forum:

I was already thinking about an "industry switch" - what if actively encouraging Private Copying became the primary way of advertising music. Rather than paying radio stations to promote your music, you would be giving your music away on the net and encouraging people to make CD's and give to their friends.

Non-private copying, such as radio, would be where the money would be made. Radio stations would then, in order to get an audience for their advertisements, need to play the "top 10" music charts as defined not by CD sales but by Can.Napster/Can.Freenet/etc records that would be encouraged to be made public. Or better yet, these music-sharing services would be able to sell their listings to the radio stations to help pay for the running of their services..

My own current boycott of major record label music, especially those who are members of the Recording Industry Association of America. I wrote a small article about it entitled "Bye, Metallica: a lost fan". At the moment I only purchase music distributed directly by the musicians themselves, especially via more modern distributions systems such as MP3.com.

Until the legal issues are resolved, I also will not purchase a DVD player or purchase/rent any DVD movies. It is an irony that the only way I can watch the movie "Anti-Trust" in DVD format on my GNU/Linux-based home computer is by making use of the DeCSS software which the DVD-CCA cartel, which MGM is a member of, suggests is illegal and is actively suing programmers and website publishers.

Access Rights
These are new types of rights being proposed as changes to copyright that, as discussed above, are using copyright to regulate readers rather than regulate publishers.

The cases that have been brought forward by the controversial U.S. Digital Millennium Copyright Act have been discussed at great length in other articles that were presented to the Copyright Policy Branch. These were sent in as a response to the consultation papers with regards to the desire of publishers to "prevent the circumvention of technologies used to protect copyright material; and, prohibit tampering with rights management information".

To suggest that I disagree with this desire of mass-publishers to obtain protection in copyright for access controls would be an understatement. Not only do I believe that technologies used to restrict access to published information should not be protected, but that the general public should specifically be protected in law against these technologies. When the privilege offered by governments to authors (especially when transferred to publishers) comes in conflict with "fair dealings" of the reader, then it is "fair dealings" that should be protected in law.

It is also argued in other papers such as the one written by David F. Skoll of Roaring Penguin Software Inc. that "if there are legal sanctions against circumventing copy-protection, then companies have little incentive to provide high-quality copy-protection.".

While I do not agree with the use of technological measures for copy protection, some of the same cryptographic technologies that are being incorrectly used to prohibit copying of published information are also used to appropriately offer privacy for unpublished information. If copyright laws end up restricting the research and publishing done by cryptographers, then this essential technological service of privacy protection will be harmed.

We already have the self-censorship of Niels Ferguson, a professional cryptographer, that is discussed in his article "Censorship in action: why I don't publish my HDCP results", where the author was advised that his paper, even if published in his home country in the Netherlands, may be interpreted as illegal under the US's DMCA. The known public harm to privacy online caused by this type of censorship is clearly greater than the hypothetical economic harm suggested by publishers if they are not able to get protection of technological access controls.

The issue of basic rights to read, and the protection of an information commons against forces which are working to limit all forms of communication are discussed in more detail in two essays:

In an economy where copyright was used only to appropriately protect moral rights and industrial mass-copying rights, there is no utility to technologies which aim to inflict access controls onto the public.

Popular software business models

Since economic reasoning is most often used to justify restrictions on the ability to access or copy information, a discussion of ongoing changes in business models becomes key to deciding if the very drastic changes being proposed are warranted. I argue that these changes are not even compatible with some of the most modern business models.

Focusing for the moment on computer software, we can divide business models that use copyright in different ways currently in use for computer software into three broad categories:

Selling Licenses
Prominent method use by bigger businesses, modeling business practices against those that worked in the Industrial economy. This model makes money by creating artificial scarcity of software through restrictions in the ability of consumers to copy and access works.

Software as a Service
The growing ASP (Application Service Provider) market which includes players from both the Free Software and proprietary software markets. The new Microsoft .NET initiative as well as the compatible Free Software Mono projects will most likely primarily use business models in this category. In this business model the customer is purchasing the processing ability of remote software which is never sent to the customer, and thus copyright is not a factor. Authors who wish to keep their code private would do so through Trade Secrets which rely on privacy laws and not copyright.

Servicing Software
This is the most popular business model used by the Free Software industry where programmers get paid to innovate and increase the value of existing Free Software. In this case copyright is primarily needed to protect authenticity of software (IE: the copyright notice identifies the author) which gives credit to the author. Copyright laws are also used by the GNU GPL (GNU General Public License) to protect derivative works from removing freedoms afforded in the original intellectual work, to ensure that the availability of Free Software will continue to expand.

The "servicing software" model highly relies on open -- vendor independent as well as copyright and patent unrestricted -- access to software API's (Application Program Interfaces), File formats, network protocols, etc. Software cannot be based on a trade secret as the source code must be available to all. Copyright reform which restrict rather than protect the right to disassemble software to create compatible products, restricts cryptanalysis of distributed files or media to allow for alternative reader/player technologies, or other such restrictions become an insurmountable barrier to innovation and competition in this market.

When governments, such as the USA, enact copyright laws such as some of the provisions in the DMCA they are not universally helping all copyright holders. They are in fact choosing which markets and business models will survive and which will be forced by the government to fail. While those of us making a living in the "servicing software/Free Software" business model may wish to convince governments that there would be a stronger software economy by focusing on this model, I believe it should be obvious that it is not the place of government to pre-determine that only property-based business models will survive but to instead encourage a more free market of ideas.

Potential conflicts with other Public Policy

There is considerable discussion worldwide about copyright issues, including how some of the provisions of copyright have come in conflict with other public policy initiatives. Examples range from Competition laws and trade agreements, to other sections of the Copyright act itself.

As an example, an article in CNet's News.com titled "Governments around the world have found a new rallying cry--"Software libre!"--and Microsoft is working overtime to quell it. " speaks about a number of national government initiatives including Open Standards & Source Code Access (Link no longer available: 27/072002) which discussed some proposed changes to French law.

From the Frequently Asked Questions from the Open Standards & Source LAW site is the following quote:

The principle of "right for compatibility" is also in line with the "interoperability principle" of the 1991 European directive on software (Link updated by RWM: 22/04/2002) which states as principles that "interfaces, are not protected by copyright" and that "only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright".

This is in direct contrast with a recent Canadian case I was involved in where a client of mine, P&L Communications, was suing two Canadian federal government departments under fair government procurement standards under NAFTA Chapter 10: Government Procurement (Article 1007: Technical Specifications) and/or the Agreement on Internal Trade.

The essence of these cases was that these departments were requiring that an Intranet-based service be based on Microsoft branded technologies when they should only have needed to comply with recognized international computing standards. In the words of the Canadian International Trade Tribunal in their decision against the Library of Parliament they "relied extensively on trade names as a proxy for performance specifications, when recognized open standards exist".

In the Tribunal's opinion, the above mentioned issues, separately and taken together, document several material instances where the RFP, as amended, lacks clarity. In these instances, the Library is in breach of Article 506(6) of the AIT. Moreover, in the Tribunal's opinion, although the RFP allows equivalent solutions to be proposed (a situation with which PL Com claimed it can live in this instance), the Library, in setting out the requirements of the RFP, relied extensively on trade names as a proxy for performance specifications, when recognized open standards exist, and introduced unallowable and/or unsupported and non-documented extra support costs for bidders offering non-Microsoft-based solutions, thereby structuring an RFP that favours one class of bidders, those offering Microsoft-based solutions, over the other bidders. In the Tribunal's opinion, this amounts to discrimination.

This case demonstrates that not only is the Canadian government not protecting the "right of compatibility" by ensuring that computing interfaces not be protected in Canadian copyright, but that government departments are specifically procuring and through expensive litigation protecting their desire to procure products which are specifically not compatible with recognized standards. It is my belief that the "right of compatibility" should be protected in Canadian law in terms of Copyright law not protecting interfaces and protecting the right to reverse-engineer to create compatible products, Competition law protecting consumers and other companies from the unfair monopolies built by vender-dependent interfaces and file formats, as well as the strong enforcement of government procurement standards requiring governments to procure products with compatible standards-based interfaces.

Other examples exist where copyright is being used to create vendor-dependent interfaces in the form of distributed file formats, including encryption file formats. Two very visible cases are the DVC-CSS and Adobe eBook cases.

DVD CCA (Content Control Association)
In this case, copyright is being used not to control the copying of works , but control the DVD player market. Copying is not being restricted in any way by the CSS (Content Scrambling System) encoded file format as DVD CD's, as with any CD, can still be copied without technical restriction by doing a bit-for-bit copy of the CD.

This is a clear case where copyright law is coming in conflict with competition laws, and where competition laws should prevail.

I will be starting a new initiative on Canada high-tech Competition which among other things will try to encourage an investigation of the DVD-CCA cartel under Canada's Competition Act. As part of my research for this paper I read the Canadian Competition Act (C-34) and presented a summary of my reading to the Canada DMCA Opponents forum. This summary included the following section:

Section 32 indicates that "the exclusive rights and privileges conferred by one or more patents for invention, by one or more trade-marks, by a copyright or by a registered integrated topography" are not excused to be anti-competitive, and that the courts may order many different things. This may only relate to domestic privileges as paragraph 32.(3) seems to suggest that foreign treaties/conventions/etc trump this section, although I'm not sure how this limitation works.

It does speak of acts which "limit unduly the the facilities for transporting ...supplying, storing or dealing in any article or commodity that may be a subject of trade or commerce" which seems to speak to regional encoding and whether it is illegal to limit ones ability to move DVD's from one country to another.

Note: This was all already considered by (or submissions made to) the Australian Competition and Consumer Commission

http://www.accc.gov.au/speeches/2001/jones_intellectual_property_11_5_01.htm
The Commission has requested the Australian subsidiaries of United States film companies to explain why their regional restrictions on DVDs should not be deemed a breach of the Trade Practices Act 1974. The restrictions are maintained under the Regional Playback Control (RPC) system that splits the world into six distinct markets.

http://www.accc.gov.au/speeches/2001/fels_sydney_institute_23_4_01.htm
Australian consumers are currently suffering from an international cartel that restricts their access to digital versatile discs (DVDs). The cartel, headed by major film studios in agreement with the manufacturers of DVD players, has divided the world into regions.

http://203.6.251.7/accc.internet/media/search/view_media.cfm?RecordID=218
The Australian Competition and Consumer Commission today advised consumers to exercise caution when purchasing a DVD video player because of the restrictions that limit their ability to play imported DVDs.

I have already filed a complaint with the Competition Bureau. As part of this new initiative we will be filing further complaints to the Bureau as well as trying to raise public awareness of the potential competition issues with products already released into the Canadian market in the hopes that these can be resolved.

Adobe eBook and U.S. v. Sklyarov
This case is similar to the DVD-CCA case in that Adobe's eBook format does not limit the ability to copy the raw data file, but allows Adobe to create a market monopoly in eBook players compatible with books encoded in a file format they are claiming ownership to.

The USA's DMCA was used in US-v-Skyarov to arrest and imprison a programmer for complying with laws in his own country (Russia, which better protects fair dealings) which conflict with controversial U.S. copyright law. The crime in this case was the production of a file conversion tool to convert a file encoded in Adobe's eBook format to the more interoperable Adobe PDF format.

The ability of vendors to restrict the creation of file conversion tools should not be be protected in law. Governments should be enacting and enforcing laws to protect the right to reverse-engineer these files formats in order to create a competitive viewer market of compatible products.


Discussion of "A framework for copyright reform"

Conclusion

As a conclusion I would like to list, in point form, the major comments and recommendations I have made in this paper.

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