Open letter to the members of the Standing Committee on Canadian Heritage.

Dear members of the Standing Committee on Canadian Heritage,

In an October 11 Globe and Mail article¹, Gary Schellenberger (Vice-Chair of Heritage Committee) is quoted as saying "Copyright is not an easy issue," and "But we've tried to make it the best of all possible worlds."

While I agree with him on his first statement, I must strongly disagree with his second.

Later in the same Globe article Mr. Schellenberger suggests that "There's not even a bill on it yet," "And when a bill is brought up, then there will be debate."

I believe it is inappropriate to wait for the bill, as this report offers a direction that the committee wishes to take. As a creator I wish to urge the committee to change their direction. Rather than only supporting the privileges of powerful old-media intermediaries that wish to harm the creativity enhancing aspects of new-media, the committee should be providing additional support to new-media creators and new-media business models. One of the powerful advantages of the new media is the ability to "skip the intermediaries" and create healthy relationships between creators and their audiences. While skipping the intermediaries may not benefit these old-media intermediaries, it can not be stressed enough to the committee that this would be of great benefit to creators, audiences, and Canadian culture generally.

Copyright is a hard issue, and advances in communications technology in the last few decades have radically transformed the copyright debate. It has often been said that "freedom of the press only applies to those who own a press". With modern technology, practically all citizens have the modern equivalent of a press. While copyright was into the 1980's a regulation of intermediaries who control these communications technologies, largely regulating only the activities of these intermediaries, this is no longer the case. Copyright policy making must now scale to not only consider the activities of industrial players, but the activities of private citizens in the privacy of their own homes². While this is true, the Committee has thus far been acting as if it is still the early 1980's and has been talking only to these industrial players, and not to the private citizens who represent the majority of the relevant constituencies³.

I am an independent software creator and a creator of other works I have been publishing via new electronic media for more than 2 decades. I read the report⁴ and found it to be a full-out attack not only of my rights as a creator and audience, but also an attack on the new media that I use to create and communicate my works⁵. This is understandable as those constituencies that were invited to talk to the committee represent the incumbent intermediary industry associations. These associations do not see these new media as the culturally enhancing tools that they are, but as a threat to their existing market monopolies. Given these interests it is not surprising that they recommended that the exclusive rights of copyright be replaced by Digital Rights Management (DRM) or by extended licenses. Each of these cases are techniques that will either transfer the control of the creative process to these intermediaries, or will transfer control over business models to these intermediaries. This only creates government imposed dependencies on these legacy intermediaries.

The committee heard from some copyright holders that, within the necessarily limited scope and term of copyright, is not the job of parliament to impose a $0 rate. It is important for parliament to realize that it is also not their job to impose narrow old-media business models onto all Canadian creativity. There are far more business and incentive models than "monopoly rent seeking" for all uses of a work, and this inappropriate imposition of outdated business models seems to represent the core of this report.

The harm that will come from the WIPO treaties can not be underestimated. This treaty was pushed through at the urging of the same old-media special interests that have dominated the discussion with the Heritage committee, and thus is itself an attack against creators and audience rights in new media. When properly analyzed, legal protection for Digital Rights Management (DRM) represents a transfer of control of Information and Communications Technology (ICT) from creators and audiences to technology manufacturers⁶. This is as extreme as you can get, and the loss of control of ICT often seen as theft. I own my computer, VCR and DVD, and as the owner should be able to use it for any lawful purpose: regardless of the wishes and desires of the manufacturer of the technology.

It is interesting to note that three of the recommendations involved extended licenses. Few have noted that from the perspective of the creator that those few interests heard by the committee were in full agreement. In this case the intermediary groups were collective societies like Access Copyright and the educational and library communities. In all cases they wished to remove the exclusive rights of authors to license their works in ways that support their own business models, with the only disagreement between these third parties being the rate that would be charged. The educational and library communities wanted a zero rate, while the collectives wanted some non-zero rate.

Creators rights were also attacked in the section on ISP liability. It is inappropriate to have an ISP involved in a dispute between two parties who may both claim to be copyright holders. As we have seen with a similar regime in the USA, it is quite possible that a misidentified document that I am the copyright holder of will be the subject of an automated message coming from a third party claiming that this document infringes their copyright. Given that the committee has already admitted that copyright is hard, how can they possibly justify having ISPs involved in determining what is and is not a violation of copyright. ISPs should only be reacting to letters from the courts who are capable of making these determinations, and should not be asked to monitor, take-down or terminate anything relating to their customers without the intervention of a court.

I also have to admit to not understanding the requests of the photographers. In the ways in which photography is like other creative works, photographers already have similar rights as their fellow creators. The special cases for photography to deal with important practical issues⁷ are no more radical than the part of the copyright act which allows computer software to be backed-up.

Thank you,

Russell McOrmond⁸
305 Southcrest Private,
Ottawa, ON
K1V 2B7

This work is Copyright 2004 and licensed under a Canadian Attribution-ShareAlike Creative Commons License.⁹