Willem de Lind van Wijngaarden

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Copyright Reform Process


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Submission from Willem de Lind van Wijngaarden received on September 8, 2001 via e-mail


Regarding 'Legal Protection of Technological Measures' as described in the CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES I strongly urge that the WIPO requirement be interpreted in the narrowest possible terms so as to avoid criminalizing fair use, where fair use requires circumventing technological protection.

Since no technological measure can act on the intent of the copier this makes it impossible to ban circumvention devices without effectively annihilating fair use provisions.

In particular, a technologically protected work remains protected:

  • When all or part of it passes into the public domain
  • When it's being referenced for commentary or satire
  • When it has to be massaged to be useful: e.g. text to speech translation for the visually impaired
  • When any other fair use applies

    The remaining illegal copying actions are covered by existing copyright law.

    This is of particular concern because provisions in the U.S. DMCA legislation have already been grotesquely abused and such abuses would likely be considered as precedent for interpreting similar provisions in Canadian law, should these be enacted.

    In particular:

  • In the DeCCS case, attempts to independently create DVD-player software were banned. This effectively creates a cartel with sole authority to license DVD players. Not content with this, the presiding judge went on grant injunctions against web sites giving information as to where any of the code could be found.

  • In the Felton incident, a professor pulled a paper from an academic conference discussing the security of SDMI digital watermarking. This was at the insistence of the SDMI proponents, even though they had publicly invited people to test their security.

  • A Russian programmer (Dmitri Sklyarov) was jailed for weeks without bail and is threatened with up to 25 years because his employer is claimed to have sold a circumvention device of which he was a part author.

    Notable in all 3 incidents is that no violation of copyright law as previously understood was required to get the injunctions, threaten the researchers or bring about the arrests of the parties concerned.

    -Willem de Lind van Wijngaarden

    (email address removed)

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