Dan Scott (En anglais seulement)
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PROCESSUS DE RÉFORME DU DROIT D'AUTEUR
SUGGESTIONS REÇUES RELATIVEMENT AUX DOCUMENTS DE CONSULTATION
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Suggestion de Dan Scott reçue le 15 septembre 2001 par courriel
Objet : Concerns over the Consultation Paper on Digital Copyright Issues
Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
235 Queen Street
5th Floor West
I am a software engineer employed in Canada by one of the largest multinational technology companies. I hold a bachelor's degree in English and Philosophy from Laurentian University and a Master's of Information Studies from the University of Toronto. I have read the CPCDI posted at http://strategis.ic.gc.ca/SSG/rp01099e.html, and I would like to present my concerns about one of the proposals contained in the paper.
Comments on proposal 4.2: Legal Protection of Technological Measures
One of my major concerns about prohibiting the act of circumvention of technological measures that protect copyrighted material, or the manufacturing and trade of circumvention devices, is that enacting these kinds of prohibitions potentially tilts the balance between enabling fair dealing and protection of copyrighted material precipitously towards copyright stakeholders.
The CPCDI invokes the U.S. DMCA in several comparisons. I will draw upon one effect of the DMCA that illustrates my concern prohibitions on the act of circumvention. The Motion Picture Association of America (MPAA) distributes audio-visual performances (primarily movies) on DVD. The content of most DVDs are protected by an encryption algorithm licensed by the DVD Copy Control Association (DVDCCA).
I can understand the DVDCCA's intent: they are attempting to protect the content of DVDs from unauthorized reproduction. The problem is that if an individual purchases an encrypted DVD in the U.S., the prohibitions of the DMCA mean that that individual does not have the legal right to view the contents of that DVD without purchasing licensed technology for viewing that DVD. For example, I have a DVD-ROM drive installed in my computer at home. The DVD-ROM drive can read the contents of DVDs, but still requires a software mechanism to decrypting those contents before I can view the DVD. When software programmers reverse-engineered the encryption algorithm and developed a program that decrypts the performance recorded on a DVD, they were arrested under U.S. laws for circumventing the copyright protection for the purposes of reproducing the recorded work.
This arrest occurred even though the intent of the software program was to enable the software programmers to view the content of the DVDs they had purchased. The argument, on behalf of the DVDCCA and MPAA, is that the software developed independently by the programmers not only enabled viewing DVD content, but also enabled the ability to reproduce that content. Realistically, however, any program for which source code is available that enables an individual to enjoy a performance protected by copy control measures also enables individuals to make copies of those performances. The United States has made the mistake of confusing the potential that a tool has for being used in an unethical manner with the intent an individual has to act in an unethical manner. Canada must not make this same mistake; we must certainly act against those who act, or demonstrate the intent to act, in an unlawful manner; but we must not punish those who act, and intend to act, only in a manner in accordance with the ethical principles of fair dealing in other media.
Prohibiting individuals from creating or sharing these programs would significantly and detrimentally affect the culture of Canadians and international citizens who engage in the collective development of non-commercial applications and operating systems. The copyright stakeholders cited in the CPCDI appear to be arguing not only for the right to determine who is entitled to view a performance, but also to acquire the right to determine what technology can be used to view the performance--in effect, they are arguing that they should be granted the right to profit both by the content they distribute and by the means by which that content can be viewed.
As a professional software engineer, my livelihood depends upon the honesty of others to pay for licenses for the software which I help to develop and document. I feel obliged to point out that the effect of the proposed prohibitions on technology circumvention is to remove the traditional emphasis on prosecuting individuals based on the intent of their actions, and to place the emphasis on the actions which are potentially enabled as a result of their actions.
This is not the right direction to take our Copyright Act. We must protect the principle of fair dealing with copyright works. As the owner of a distributed performance, I should have the right to view that performance using the technology of my choice.
These prohibitions would also hamper innovation. The adoption rate of new technology in the Internet has been largely influenced by the existence of open standards and the level playing field of competition enabled by those standards. Offering protection to copyright owners of these prohibitions against circumvention of copyright technology effectively gives copyright owners the means of closing those standards and preventing competition. As a software developer, I should have the right to develop and distribute a technology that enables others to view their own legally acquired copies of a distributed performance, without being forced to license technology from a consortium that can arbitrarily decide who can license the viewing technology and under which terms.
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