Steven M. Robbins
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Copyright Reform Process
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.
Submission from Steven M. Robbins received on September 14, 2001 via e-mail
Subject: a comment on digital copyright issuesDear members of the Intellectual Property Policy Directorate,
I am writing you with regards to the Consultation Paper on Digital Copyright Issues <http://strategis.ic.gc.ca/SSG/rp01099e.html>.
I write to you as a consumer rather than a producer of copyrighted materials; that is to say a reader. As a reader I enjoy, after purchase of a book, complete freedom in how and where I read the book. I am writing you today because I am deeply concerned that possible changes to the copyright act could completely upset the rights I currently enjoy.
I am concerned by any proposal that inserts into copyright law a legal protection of Technological Measures used to restrict access to the copyright work.
Such measures will undoubtedly be used by a publisher to impose restrictions on the consumer that do not currently exist under copyright law. Indeed, copyright law <http://laws.justice.gc.ca/en/C-42/> does not at all restrict how I use a work; rather, it restricts whether I may make a copy of the work. In ten years time, regardless of whether I may legally copy it or not, I will still be able to read the book I bought yesterday. If it becomes illegal to circumvent encryption, the same could not be said of the e-book I will buy tomorrow. In short, such a measure has repercussions far beyond mere copying of the work. As such, it does not appear to fit well into the Copyright Act.
I agree with the authors of the consultation paper that such a change deserves a much wider discussion on the public policy implications:
Under these circumstances, the departments question whether it is possible to establish a legal framework which, on the one hand covers virtually all activities that undermine the use of technological measures, but at the same time continues to reflect the policy balance currently set out in the Act. Such a change in the Copyright Act could potentially result in a new right of access, the scope of which goes well beyond any existing right, and would represent a fundamental shift in Canadian copyright policy. It could serve to transform a measure designed for protection into a means of impeding legitimate uses. In essence, a change of this nature would be tantamount to bringing within the realm of copyright law, matters (e.g., restrictions on use) which may be more properly within the purview of contract law. Given the rate at which the technology underlying protection measures is changing, it is difficult, under present circumstances, to evaluate the public policy implications of such a step. Perhaps the role of technological changes warrants a careful study to examine what will be the dimensions of the intersection of anti-circumvention measures with the current Act.On the topic of Technological Measures, there appears to be a great deal of fundamental confusion. The consultation paper remarks
Increasingly, a number of technologies are available that may be used to thwart the infringement of copyright materials on-line. Many rights holders have indicated that the adoption of such protective technologies (for example, encryption) are a key aspect of their plans ...In the context of copyright, infringement is basically to distribute a copy of the work. Presumably the protective technology is intended to prevent the act of copying itself. However, the example technology cited, encryption is fundamentally unsuited for this task. Encryption is used "... to enable two people ... to communicate over an insecure channel in such a way that an opponent cannot understand what is being said." ["Cryptography: Theory and Practice" by Douglas R. Stinson, page 1]. In other words, encryption is used to restrict the act of comprehending a work.
Encryption cannot prevent copying of a work, however. In the same way that I can photocopy a page of Chinese writing without understanding the message, I can copy bit-by-bit a digital work without ever decrypting it. This claim can be made for any other "protective technology": as long as I have the means to legally listen to a CD of music, I have the technical means to copy the stream of bits on that CD. There is no technical way to restrict the latter without restricting the former. Therefore, law regarding such protective technology, as demanded by the WCT article 11 and WPPT article 18, does not belong in the copyright act. Moreover, it is my view, as a consumer, that this would be too heavy a price to pay in any event.
The final observation I wish to make concerns the Rights Management Information provisions of WCT article 12 and WPPT article 19. In addition to the act of distributing a copy of a work without the information present, these articles would prohibit the mere removal the information without authority. To this layman's eyes, this also appears to go well beyond copyright. Stepping out of the digital world for a moment, it would be akin to prohibiting one from removing the copyright page in a legally-purchased book. Current copyright prohibits one from selling a book without the author's name attached (moral rights) but surely one could do it in the privacy of their own home.
Steven M. Robbins
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