ARCHIVÉE — Todd Showalter (En anglais seulement)
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Processus de réforme du droit d'auteur
SUGGESTIONS REÇUES RELATIVEMENT AUX DOCUMENTS DE CONSULTATION
Les documents reçus seront affichés dans la langue officielle dans laquelle ils auront été soumis. Toutes les suggestions sont affichées comme elles ont
été reçues par les ministères; toutefois, toutes les informations sur les adresses ont été enlevées.
Suggestion de Todd Showalter reçue le 12 septembre 2001 par courriel
Objet : Consultation on Canadian Copyright Act Reform
My name is Todd Showalter. I am a Canadian citizen and, in my capacity as a professional videogame developer, an artist.
I am writing this letter in response to the call for discussion issued in A Framework for Copyright Reform. As a Canadian citizen and as a developer of copyrighted materials, I am concerned with the possibility that Canadian copyright law and the Canadian citizenry might be burdened with the weight of legal protection for access controls.
More generally, I am concerned with the direction in which intellectual property law has been moving of late. The recent expansion of copyright and patent law has had a chilling effect on the industry in which I work, and has been demonstrably harmful to the public interest.
The Consultation Process
Notification of the Canadian public with regards to these proceedings has been poor.
The proposed revisions to the Canadian Copyright Act will have a major (and as I shall argue shortly, negative) effect on the vast majority of Canadians, including artists. The revisions are drastic, and greatly expand the power of multinational media conglomerates wholly to the detriment of the Canadian public and Canadian content producers. To consult the public on the matter of the proposed revisions is laudable and well in line with a participatory democracy, but the public notification of this consultation has been inadequate.
As a Canadian citizen working in the content creation industry, the proposed changes to the Copyright Act affect me even more directly than most of my fellow citizens. I am actively concerned with the direction intellectual property law has been taking, and have been making some effort to remain informed about the further erosion of public rights in Canadian copyright law. Despite my efforts, I have yet found only three references to the consultation process. The first was on the American freelance news website Slashdot, which concerns itself with (among other things) matters of public rights. The story, entitled DMCA Worldwide: Canada, New Zealand, USA is one of only three references to this copyright consultation process which I have yet found. The second reference is in the Linux Weekly News, a freelance news site that concerns itself with the Free Software movement and is thus directly concerned with the negative impact of intellectual property law. The LWN article gives a brief overview of the consultation and links the relevant documents. The third reference can be found on the Teledynamics website. This is the only Canadian source I have found outside the Canadian government web sites referring to the consultation.
I have searched the Canadian Broadcast Corporation's web pages in vain for reference to this consultation process. Likewise those of the National Post, the Toronto Star, the Globe and Mail, CTV, and Global TV are devoid of mention of the consultation process. How, then, is the average Canadian citizen to find out that this consultation process is taking place? Had a freelance American news website not been tracking changes in Canadian intellectual property law, I would likely never have been aware that the consultation was taking place.
Even the consultation page on the Canadian government website is essentially hidden from the public view; were it not linked from the Slashdot article I would never have found it. The link, Government to Modernize Copyright Legislation is hardly noticable on the News By Date page. It is a little more visible on the News By Category page, but neither can truly be said to be in the public view. Furthermore, even these pages are buried within the Industry Canada website, and were difficult to find even when I knew they were there. Even the mailing list that Industry Canada maintains (and to which I have subscribed) has not mentioned it since I subscribed.
Oddly, there is no obvious link from the Canadian Intellectual Property Office pages, where one would expect to find reference to such a fundamental change to the laws with which they are associated.
If we are to consider ourselves a democracy, we need to do a better job of educating the public with regards to pending legislation. An uninformed public cannot truly participate in the governance of the country except with public demonstration after the laws have already been enacted. Unless some better method of informing the Canadian public is found, the handling of this consultation will give greater weight to the opinions of the media conglomerates than the opinions of the Canadian public, because whereas the media conglomerates have been lobbying for these changes, the Canadian public has no good way of knowing that the consultation is even taking place.
General Copyright Law
Copyright law is failing to ensure that the actual producers of artistic works are adequately compensated for their work because it concentrates on protecting rights owners.
The Canadian Copyright Act is failing it's primary purpose; to ensure that the actual creators of art are adequately compensated. Most of the money that changes hands for artistic works ends up in the hands of the companies which distribute the works; publishers, distribution companies and the like. Especially in the music industry, compensation of artists for their works has been dismal.
Given that the same multinational corporations run the Canadian distribution systems as run the United States distribution systems, it is instructive to consider the voices of artists from America as well. In a famous speech, Courtney Love, a published and famous musical artist from the United States of America summed up the current state of the music distribution industry as organized, state supported piracy. Her conclusion is that the artists in the music industry are practically unpaid for their work, while distribution companies make out like bandits. This assessment is mirrored in many other places; voices of support for the content distribution industry are extremely rare, and most have a conflict of interest.
Further extension of the duration or scope of copyright protection will do nothing to improve the lot of artists; it will merely ensure that control of copyrighted material remains in the hands of the content distribution industry even longer. This is not beneficial to the artists, and not beneficial to the public.
The term of copyright protection is overly long.
Life of the author plus 50 years is an unduly long duration for copyright protection; even the life of the author is far too long a duration for copytight protection. The proposal to extend copyright protection to the life of the creator plus 70 years is clearly not to the public benefit, nor to the benefit of the artists.
One can hardly claim that an author has incentive to create more works after they have died. The only reason to extend copyright beyond the life of the creator is to give the creator a greater bargaining position when dealing with publishers, and in the end this simply increases the power of the publishers at the expense of the creators of artistic works and the public.
Since the protection duration is the same for all artists, the only beneficiary is the publisher who acquires the rights to the work. The extended distribution rights allows the publisher to distribute the work, but it also allows the publisher to withhold the work, in order to prevent it from competing with more recent works released by the same publisher. In practice, this means that any work which is not a constant generator of revenue for the publisher will go "out of print", and become very difficult to acquire. The work may not be available in any form when copyright protection expires and it is required to enter the public domain.
Furthermore, the current term of copyright ensures that by the time a work reaches the public domain it is no longer socially relevant. Let us consider an author who is 20 years of age , and assume that they live to the age of 75. If they write and copyright a book now, it will enter the public domain in 105 years. Generations will pass and entire lives will be lived while the book is awaiting entry to the public domain. For much of that time it may well be out of print, and there is no guarantee that there will be a surviving copy of it by the time the copyright protection expires. Even if the author writes the book at 50 years of age, it will be four generations before the book enters the public domain.
Consider how much has changed in Canada in the past decade, let alone the past hundred years. Attitudes have changed, Canada's cultures have evolved, and we are very different people from our forefathers. Our children and grandchildren will likewise be different from us. By the time a copyrighed work reaches the public domain, odds are it will be archaic and of more interest to historians than the general public. Some works will stand the test of time, but most will not.
Furthermore, even for works that see re-release there can be problems. Works are often adulterated to suit the spirit of the age consider the case of Horses and Men, a work which Jesse Walker discusses in Copy Catfight. In his words:
"The book has long been out of print; the rights to it are owned by the Sherwood Anderson Trust, which makes money by putting out scholarly editions of Anderson's work. Many of the stories in Horses and Men will not be reprinted in any of their Anderson anthologies, and those that are will often have the punctuation "corrected" to reflect modern usage."
This, of course, prevents any scholarly consideration of the work as a cultural artifact; it has been modified in unquantifiable ways by subsequent editors, and the original is not easily available for consideration.
More disturbingly, consider the case of Faranheit 451, a work of fiction by Ray Bradbury which deals with the censorship of books. The books is required reading in many Canadian high schools. The version of the book which I own has an angry and depressed essay in the back written by the author. At the time of publication of the version I held, he had discovered that over the years and with each re-release of the work it had been further and further "abridged" (that is, censored), until it bore little resemblance to the original work. The book had been restored to its original version by the action of the author, but how many other works have been thus changed over the years without the knowledge of the author or the public?
The general public would be far better served by a copyright expiry term of ten or twenty years; copyrighted material should enter the public domain before it has lost all cultural relevance, which means it should enter the public domain within a generation of its creation.
The artists too would benefit from a shorter copyright duration. The content distribution industry currently has a strangle-hold on the artistic community; in order to get a work distributed in most artistic fields, one must essentially sign away all rights to the works to the distributor. Once a work has entered the public domain, the distributor's control of the work ends and the artist is in a better position to use that work for their own benefit. The artist could use the work to promote their more recent works, or even simply sell signed versions of the public domain work they created. Though the work is public domain, the author retains the perpetual right to be identified as the creator of the work, and there is no reason that the author cannot continue to sell the work. They no longer have exclusive copyright, but that does not prevent them from selling value-added versions of the work or using it for self-promotion.
Both the general public and the creators of artistic works would be far better served by a copyright duration of between ten and twenty years. The proposal to extend the copyright protection duration to life of the author plus 70 years is clearly not in the interest of the public, and clearly not in the interest of the artists.
The lifespan of many storage media is shorter than the duration of copyright protection.
The storage life of most media is relatively short. Magnetic tapes such as audio cassettes and VHS tapes have a projected lifespan of 5 to 15 years before serious degradation sets in, assuming light usage. Lifetime estimates for optical media such as DVDs and CDs range from 30 to 100 years, depending on usage patterns. Most novels, printed on moderate quality paper, are unlikely to last 100 years in real world conditions. Computer floppy disks show serious degradation after only 10 years.
The term of copyright is much longer than the survival time of distribution media. There is a real risk that no good copies of material on DVD or CD will be left when copyright has expired. It is almost certain that magnetic storage media will have degraded beyond use by the time copyright has expired on the contents of the media.
Even books are at risk. At the Merril Collection of Science Fiction, Speculation and Fantasy, an important and valuable collection of speculative fiction maintained by the Toronto Public Library, most of the book collection is stored in a controlled environment due to the poor condition of the books. Books from as late as the 1950s are in poor enough condition to require this kind of care. Members of the general public are hardly equipped to treat their own copies of works with such care.
Furthermore, even if the media were to survive the length of copyright, the technology required to play back the contents of the media may no longer be available. Where, a century hence, can we expect to find a laserdisk player to view or copy laserdisks that have entered the public domain? Where will one be able to find betamax videotape players? Where will one find 8-track tape players, reel to reel tape players, 8mm projectors or 1980s home computers?
The content creation industry has a poor record of living up to the responsibilities of the copyright bargain. There is a conflict of interest in the responsibilities of copyright for the owners of copyrighted material; once it enters the public domain, the former copyright owner is forced to compete with their own material. This is part of the copyright bargain, however. Copyright holders are expected to gracefully release their works when the expiry date for copyright protection arrives.
Many games for the home computers of the 1980s (the Commodore VIC-20, Commodore 64, Apple 2, Sinclair Timex, TRS-80 and many others) have been lost forever; the media on which they were stored has rotted away, there are few machines left that could read the data even if the media were still usable, and often there is no way to transfer the copyrighted material out of the old systems even if it could still be read. Furthermore, many games of that era used access control mechanisms to prevent copying, and so were difficult to access even when they were new. It has been less than twenty years, and already much of the copyrighted material of that era is gone and unrecoverable. It will never enter the public domain.
The owners of the copyrights on those games enjoyed the benefits of the copyright bargain, but failed to live up to the responsibilities. This is entirely to the detriment of the public. Many of these companies are no longer even in business, and the original source code and art for the games is probably lost. One can only imagine how dismal the chances are of recovering these games a century and a half hence when copyright protection expires and the games are legally in the public domain.
The music and movie industry have similar problems; many old celluloid films which are still under copyright protection are deteriorating to the point of uselessness. CDs and DVDs have a shorter projected lifespan than the term of copyright protection, as do magnetic tapes (including videotapes and audio cassettes) and vinyl records. Even many books will not survive the length of copyright protection; few books are printed on acid-free paper and most will disintegrate long before their copyright term is completed.
Less popular works are often not reprinted after their initial release; if the public demand for the work is not great enough to tempt the copyright owner to a second release, the only versions of the work available are the initial release. This, combined with the projected lifespan of the storage media, means that it is likely that many works will be lost long before they reach the public domain.
I would suggest that the best solution to this problem is to require all material protected by copyright to be entered into the National Archive of Canada as a condition of copyright protection. In that way, the government of Canada could ensure that materials which enjoy the protection of copyright are eventually released to the public domain as the copyright bargain requires.
It would not be unreasonable to charge a minor processing fee (on the order of $5.00) for the registration of copyright; this would help to cover the increased storage and processing costs that the Archives would face. In return, the applicant would be given official notice of their copyrighted material. Authors who copyright their work and designate it as public domain would not be charged the processing fee.
Unreleased manuscripts, prototypes and the like should be considered trade secrets, and would not need to be entered into the Archives until the owner decided to release them to the public under copyright.
Entry of all copyrighted works into the National Archive of Canada would be of great benefit to both the general public and the creators of the works. For the public, it would increase the number of available works, ensure that those works remain available, and ensure that works enter the public domain at the end of their copyright protection as required by law. For the artists, it would provide an alternative distribution mechanism from which they could derive compensation for their works; works of the artist could be purchased from the Archive and the Archive could assess a processing fee and pass the remainder of the money to the copyright owner.
Such a role would, of course, greatly increase the responsibilities of the National Archives of Canada, but the results are so clearly beneficial to the artists and the general public that I believe it should be seriously considered.
Scientific and religious text should receive different protection under copyright law.
Any work which, rather than being a work of fiction, purports to relate a fundamental truth or truths about our world, should be protected differently from artistic works. Works which report fundamental truths or perceived fundamental truths should be placed immediately in the public domain, though it should be required that the name of the author or authors be maintained with the work.
It is not in the public interest for any party to have control over knowledge of fundamental truths, or for such truths to be withheld from public view. Furthermore, if a perceived fundamental truth is indeed a fundamental truth, no author may claim ownership of it. To make such a claim would be to deny that it was a fundamental truth, and assert that it was a creation rather than a discovery of the author.
Current and proposed intellectual property law creates artificial scarcity to the detriment of the public.
One of the things which is often forgotten in discussion of intellectual property is that ideas are not things; one cannot hold an idea in one's hand, and there is no reproduction cost for ideas. The only reproduction cost is for the storage media on which the ideas are contained.
In earlier ages, the storage media for ideas imposed a per-copy cost; books, CDs, videotapes and other storage media cost money to produce and distribute. In the case of the Internet, however, the costs are so vanishingly small that they cease to affect the economics of distribution. Once a computer is on the Internet, the transaction cost of copying information (and thus ideas and art) is effectively zero.
Unfortunately for the Canadian public, a huge industry has developed in content distribution. This industry, while producing no content on its own, makes its money "publishing", which is to say storing works on media and selling them to the public. This industry has grown large, powerful and exploitive over the years; the bulk of the profits from content now go to the distributors rather than to the artists who created the content. The distribution industry has relied on media reproduction costs and a distribution monopoly to keep both the artists and the public in line.
The recent push for content controls in copyright law comes largely from the content distribution industry, and is primarily concerned with keeping the public and the content creators apart. The Internet gives content creators new possibilities; they can talk directly to their fans, sell directly to their fans, and eliminate the cost of duplicating their art. This strikes at the heart of the distribution industry's monopoly.
The response of the distribution industry is to push for laws that create artificial scarcity in order to prop up their monopoly. This is neither in the interests of the public nor the interests of the artists; both stand only to lose. Only the content distribution industry will gain from content control and access control laws.
Such laws create a two-tier system; there are those who are allowed to distribute controlled content (the distribution industry), and those who are not (the public and the artists). The "haves" in this system can decide which art is distributed and which is not, what prices will be charged for art, how it will be used, and how often it may be used before it "expires". The "have nots" in the proposed system are reduced to servitude; they may only do what is permitted by the "haves".
The effects of this is to reduce diversity in the arts, to reduce choice for the public, and to funnel money to multinational corporations that rightfully belongs to Canadian artists. It will prevent most members of the public from creating art by denying them access to distribution methods that would otherwise have been available. It will prevent the public from making reasonable use of the artistic works they purchase. It will even prevent the public from being able to take advantage of their Moral Rights under the Canadian Copyright Act by making those rights impossible to legally exercise; one cannot, for instance, make an archival copy of a work when the work has mechanical copy protection which is illegal to circumvent. The production of artistic works in Canada is occurring in spite of the current state of intellectual property law rather than because of it, and the proposed extensions to intellectual property law will further constrict the production of artistic works.
The law does not currently offer enough protection for personal use, parody, fan use, interpretations, and public performance.
One of the major flaws in the Canadian Copyright Act is the small scope of non-infringing actions which the purchaser of copyrighted material may take. The Act implicitly views the public as passive, and indeed makes taking a non-passive role illegal. This is at odds with the actual behavior of the public.
Consider the 1997 amendment to the Canadian Copyright Act. Phase II (Bill C-32), included a levy on blank recording media (subsection 82, Levy on Blank Audio Recording Media), an act which can only be seen as misguided. It implies that the mass of the Canadian public must be considered untrustworthy thieves who are incapable of producing copyrighted material on their own. This is hardly a progressive stance for a government intending "to stimulate the production of cultural content and diversity of choices for Canadians" as the Copyright Reform Process document claims.
In my case, I have recorded six CDs of audio; every last track of audio on those CDs is music for which I legitimately purchased the original artist's audio CDs. On five of the disks, I mixed the audio CDs myself because I only liked some of the tracks on the original CDs and wanted a better musical mix. The last disk is the soundtrack to a game I purchased, and I simply burned a copy of the game disk with the initial data track removed so that it would not choke my audio CD player. This falls well within my moral rights as a purchaser of copyrighted material, and yet the levy is still taken from me as if I had stolen something.
I also have tens of recordable CDs which contain archival data of my own creation; I am a console videogame programmer, and in the course of my work I generate a good deal of computer data which needs archiving; images, sounds, source code and the like. In the case of my archive CDs, I am paying a levy because I am presumed to be illegally copying my own works. Again, the assumption is that I, as a mere member of the public, could not possibly be creating copyrightable material.
The fundamental assumption behind the levy is that home users are thieves incapable of producing copyrightable material on their own, and that their only use for recordable media is copyright infringement. I find this belief to be misguided and offensive, and would urge the government to seriously consider repealing this section of the Canadian Copyright Act.
The levy is symptomatic of one of the false assumptions behind the current Copyright Act; that there is a special class of people - "artists" - who exist apart from the public, and shower the people with art from on high. The truth of the matter is that the vast majority of the Canadian public has some level of artistic talent, and that as a country Canada would be far better served if the public was more able to distribute their works.
One need look no further than the fan communities on the Internet to see that the line between art consumers and art producers is very blurry. Many fans write stories set in the worlds of which they are fans. Usually this is done without a profit motive; it is done for the love of the story world, for the love of the creative process, and so that the fan has something of their own to share with their community. These works are beneficial to everyone. They provide a creative outlet for the fans, increase the depth of the story universe, and act as free advertising for the creators of the original work. The same is true of character drawings produced by fans, music, and other derived forms of art.
When an artistic work is released, some measure of control of that work is ceded to the public regardless of the law. The popular consciousness helps to define the work; the genre to which it belongs, the meaning of the work both in its own context and the greater context of its genre and in society, the quality of the work, its enjoyability and value are all defined by public consciousness. In the form of discussions, art and derivative works produced by fans, through popular perception and critical analysis the public takes partial control of the work, extending it, examining it and often improving it.
It is arguably this process that gives art any value at all, and yet the Copyright Act gives no recognition or protection to this kind of behavior. Between copyright law and trademark law in Canada, producing derived works (pictures of your favorite character, stories set in the world of some fiction you like, musical remixes) is a legally risky matter. This should not be the case; the law should encourage derived works.
Likewise, when a person purchases storage media containing copyrighted material, they are purchasing the right to consume the contained material as they see fit. Users do not in general purchase CDs for the sake of owning a shiny disk; they are interested in the music or movie or game contained therein. The distribution medium for the copyrighted material is necessary in order for the purchaser to actually acquire the copyrighted material, but it should not be considered the only form in which the purchaser may use said material. The distribution medium is merely the container for the material for which the purchaser has paid.
There is no good reason to prevent a user from copying a movie, a book, music, or any other copyrighted material onto their computer for personal use. There is likewise no good reason to prevent a user from making archival copies of purchased material, from making multiple copies for their own use (so they can listen to music they purchased both at home and at work, for instance). The provisions of the Canadian Copyright Act are already too restrictive in this sense; the United States of America's doctrine of Fair Use contains a far more reasonable set of use restrictions for copyrighted material.
Why is it, for instance, that Canadian citizens are forced to watch FBI warnings at the beginning of DVDs? As Canadian citizens operating within the borders of our own country, we are not subject to the laws of the United States, and we are not responsible to the FBI. Despite this, all DVD players in Canada require that the FBI warning at the beginning of the disk be unskippable; if the disk is played, the FBI warning will appear on the screen for a set time, and there is no way of stopping it or even speeding it up. It is often accompanied by unskippable advertising from companies involved with the production of the disk. In the case of one disk I have, there are two minutes of unskippable drivel at the beginning of the disk, advertising for the production company, the company that produced the sound and other companies. Through these sections, even the fast-forward controls do not work.
I would love to be able to make a copy of all my DVDs that stripped out this warning. As a Canadian citizen I take offense that a foreign police agency nags me about piracy every time I want to use some media which I legitimately purchased. Technically and morally, there is no reason I should not be able to make personal use copies without the irritating FBI warnings, but Canadian copyright law denies me the right, and the DVD industry denies me the equipment.
I also have some media which I would like to subtitle. The subtitling capabilities of DVDs are quite useful; the maker of a disk can add subtitle tracks that the user can turn on and off as the disk is playing, something which is very useful for people attempting to learn languages. The subtitling on some disks is inadequate or not present, however, and as a legitimate purchaser of those disks it would be nice to be able to make copies with correct subtitles. This too, however, is denied. Since the Canadian public is given neither the means nor the rights to make copies of DVDs, they can not take advantage of the tools the system offers.
Canadian copyright law is far too restrictive. There are many uses which the Canadian public would like to be able to make of artistic works, but which are denied by law. These uses do not harm the producers of such works; they are beneficial for all. The Canadian Copyright Act should greatly expand the "fair dealings" rights of the public.
There is no evidence that access controls are in the interests of the Canadian artistic community or the Canadian public.
Much of the argument for the expansion of copyright protection is predicated on the supposed threat of "piracy", that is, illegal copying of copyrighted material. This argument is specious; the expansion of copyright protection and the use of access controls will have no discernible effect on piracy.
To consider why this is the case, we must first realize that the term "piracy" covers two major categories of behavior; professional criminal activity in the form of mass-produced forgeries, and small-scale copyright infringement by individuals. These are separate phenomena, and need to be considered individually.
The expansion of copyright protection will have absolutely no effect on mass-produced forgeries. Access controls are designed to make copying data hard for amateurs, but they have no effect on professional copying systems. A professional grade copying system can mass-produce perfect copies of copyrighted materials, access controls and all. Since the professional grade copier can make a perfectly identical copy, the copy will behave exactly the same as the original. No technical protection measure can prevent the production of mass-produced perfect forgeries. No access control technology can protect copyrighted material from being copied by professional criminals, and no access control technology can tell the difference between a perfect copy and the original.
Access control technology, therefore, is useless as a means of combating professional copyright theft. It can only be used to prevent small-scale, casual theft.
The other type of piracy, small-scale copyright infringement by individuals, is a different matter. No good statistical evidence regarding such piracy has ever been presented, however, either in terms of its scope or its actual economic cost. The only statistics on illegal copying which have been submitted to the public for consideration have been generated by groups with vested interests; content distribution companies and their lobby groups. This represents data generated by entities with a severe conflict of interest, and yet the data is generally reported as gospel by mainstream news services. There are currently no trustworthy assessments of the level or scope of copyright piracy, and there is every reason to suspect that the available figures are total fantasy.
Furthermore, there is little evidence that illegal copying represents actual financial loss on the part of the copyright holder. Since the theft of the copyrighted material is virtual (that is, the thief supplies the storage medium which holds the illegal copy), there is no material loss on the part of the copyright holder; all the copyright holder can be said to have lost is the potential sale of the copyrighted material to the thief. This assumes, however, that the thief would have purchased the copyrighted material from the copyright holder were it unavailable any other way. This is probably not the case; likely, they only stole the material because it would be free, or nearly so. The theft was still in breach of the law, and the owner of the copyrighted material is entitled to reparations, but it is specious to claim that the theft represents a lost sale.
Consider the case of illegally copied software. There have been several cases of teenagers caught with pirated software valued in the hundreds of thousands of dollars. Certainly, the theft of the software was illegal, but one can hardly claim that the perpetrator would have purchased the software were it not available for illegal copying. The "loss" that this represents to the creators of the software is entirely virtual; someone who would never have had legal access to their software because of financial barriers made an illegal copy. The copy cost the copyright owners nothing, and no sales were lost because there was no prospect of the teenager ever buying the software. The law has been broken, but with the exception of court costs no money has been lost.
Some software is also illegally copied because of the tendency of software companies to charge upgrade prices for bug fixes. Not a few copies of commercial software have been stolen for this reason; an upgrade is released that fixes a critical bug (say, a bug that makes the company's word processor crash and lose documents), but the developer charges for the upgrade. Many people feel morally justified illegally copying the upgrade when this happens, at least in part because consumer rights have been woefully neglected in the software industry. When buying software it is not uncommon to purchase products that are defective or simply do not work, and illegal copying in this sense can be seen as a kind of bellum servile.
For similar reasons, some software is "illegally" copied by people who have already purchased it. For some, their copy of the software was destroyed; I know of one person who accidentally ironed a CD of software that he had purchased. In many cases, people will download "cracked" versions of software which they already own. The cracked version is the same as the version they purchased, except that it has the access controls removed. This is not uncommon; access controls on software have been known to be extremely intrusive, and in some cases they are actually broken. More than one PC game has, on it's initial release, had broken access controls that would not allow even legitimate owners of the game to play. Downloading a cracked version is the only way of playing such a game until the manufacturer fixes the problem.
When Napster was in full operation, the music industry decried the massive piracy it represented and declared the whole operation to be illegal copying, but this can hardly be considered the case. At least some part of the music exchanged with Napster was public domain, and in several cases was sample material released by new artists looking for a way to reach an audience without having to deal with the entrenched music industry. Even amongst the copyrighted material there was much legitimate copying; morally, at least, it is not a crime to download a copy of a song which you have already purchased on another storage medium. For the less technically literate, it was often easier to download music which they already owned than to copy it on to their computer. This is especially true if the user's purchased copy was on cassette tape, 8-track or vinyl. Others downloaded music because it was simply unavailable for purchase elsewhere; music that was "out of print", music which was not released in the region where the person lived, and similar reasons.
Napster too represents at least in part a bellum servile; the music distribution industry behaves suspiciously like a cartel, and has spent a great deal of time, money and effort eliminating its competition and lobbying for laws like the U.S. Digital Millennium Copyright Act. One of the major results of this is the utter lack of diversity and choice in music; the products produced by the music industry are extremely homogenized. At any given time there is a small set of music which is:
- playing on all the top-40 radio stations
- playing on muzak and other closed-circuit music systems in offices and stores
- available for sale in music stores
- used as soundtrack for Hollywood movies
The music industry claims that this small but revolving set of music is carefully tuned for public tastes and represents the will of the purchasing public, but the evidence is strongly to the contrary. On Napster and the other music sharing resources on the Internet (The Internet Underground Music Archive, mp3.com and others) categories of music unheard-of in the mainstream have flourished. The type of pop music promoted by the mainstream music industry has an almost negligible presence in online music. The weight of evidence is that the current music distribution industry is only maintaining its dominance by weight of a collusive monopoly and control of distribution; when given alternatives, the public have spoken with their feet and their money, abandoning the mainstream almost completely.
Consider the case of Industrial music. Industrial is a genre of electronic music, with heavy emphasis on synthesizers and samplers. Vancouver, Canada has been home to some of the best and most influential Industrial bands in the world (Skinny Puppy, Front Line Assembly, Download...), but their music is relatively hard to find and often must be purchased as "import", the irony of which is obvious. In practice, "import" means the price is roughly doubled, and once the album goes "out of print" it will likely not see distribution again. Though cutting edge in their own field and thoroughly Canadian, their music can only be found in large music stores in major cities, and only then at high prices. Their fan base developed largely on word of mouth.
The furor over piracy is a red herring. Access controls have little to do with preventing the theft of copyrighted materials and much more to do with the threat that the Internet presents to the content distribution industry's monopoly. Access controls create a class division between those who are permitted to control distribution and those who are not; ceding this control to the multinationals in the content distribution industry. This is directly counter to the interests of the Canadian public and the Canadian artistic community.
The "fair dealing" provisions of the Copyright Act are effectively nullified by access controls.
The U.S. Digital Millennium Copyright Act (H.R.2281 of the 105th Congress) gives access controls the force of law in the United States; the Act makes it illegal to make, sell or import any device or method which can be used to remove access controls. With no method of removing access controls, the "fair use" provisions of the U.S. copyright act are useless; the public cannot access the copyrighted material in order to make fair use of it. Attempts to access data for purposes which were obviously fair use (the DeCSS program, a program written to allow people to watch DVDs on computers using non-Microsoft operating systems, for instance) have resulted in prosecution under the D.M.C.A. in the United States.
Private citizens are far less able to defend their own interests in court than corporations. A case involving copyright law, whether in Canada or in the United States, is likely to make it all the way to the Supreme Court. The issues at hand are closely connected to the constitutions of both the U.S. and Canada, and rulings on the constitutionality of copyright modifications will require hearing in the highest court. Such proceedings, however, are prohibitively expensive for private citizens; without legal and financial backing, a private citizen's case is essentially doomed regardless of the merit of their claims.
In practice, this means that the public interest is effectively trampled by giving access controls the force of law. The rights enumerated in the "fair dealing" section of the Act are useless to the public if the public cannot acquire the tools necessary to exercise those rights. Since there is no way of differentiating between tools that allow "fair dealing" and tools that allow illegal behavior (since they are essentially the same tools), the "fair dealing" rights are effectively unexercisable.
There are legitimate reasons users may wish to decrypt encrypted content for their own uses. For instance, if the means to disable access controls are illegal, section 32 of the Copyright Act (Persons with Perceptual Disabilities) might as well be elided from the act. Dmitry Sklyarov, a Russian citizen and computer programmer, is under arrest in the United States at the time of this writing for the crime of giving a lecture on the access control mechanism used in Adobe eBooks. He faces five years in prison and a $500,000.00 U.S. fine if convicted.
Sklyarov, while in Russia working for Elcomsoft, wrote a program called Advanced eBook Processor which is capable of translating Adobe eBook files into Adobe PDF format. PDF format is not as restrictive as eBook format with regards to rights management, and one of the prime reasons given for the development of the Advanced eBook Processor was to allow the visually impaired to feed eBooks to text-to-speech converters. This is exactly the sort of use covered by "fair dealings" under the Canadian Copyright Act and similarly under "fair use" under U.S. copyright law, and yet Sklyarov is currently awaiting trial.
The music industry is currently moving towards making audio media uncopiable; Bertelsmann, for instance, has reportedly licensed the Cactus system for use in encoding their audio CDs. This system is designed to prevent the user from making copies of the disk, defeating the provision of the Canadian Copyright Act allowing users to make a single archival copy. Technically skilled users can work around this, but if it is declared an access control the hands of the Canadian public are completely tied. Even the present state of affairs is unreasonable; only technically skilled users can exercise their rights.
Canadian "fair dealing" rights are already far too restrictive. The passage of laws which make even those limited rights impossible to exercise cannot be in the interest of the Canadian public. Rather, laws should be considered which return to the Canadian public the rights which the content distribution industry has been destroying.
What constitutes an "access control method" or "encryption" is ill-defined, and can not be well defined.
The U.S. Digital Millennium Copyright Act (H.R.2281 of the 105th Congress) in discussion of the circumvention of technological measures, says:
`(A) to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
`(B) a technological measure `effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
This is extremely vague language; it may appear to offer a solid definition of terms, but legally and technically speaking it can be interpreted in radically different ways. Worse, there is no way to correct the language; the concepts with which the language is dealing are themselves vague. The whole concept of access controls and rights management directly fails one of the major criterion given for revision of the Canadian Copyright Act: "clarifying the law where it will reduce the risk of unnecessary litigation". Any protection for "access controls" or "digital rights management" under the law will open the door to endless, highly technical litigation.
Encryption, scrambling and the like are translation; when one encrypts data, one is simply translating that data into a different language. The decryption system is a second translator, designed to translate the data back into its original language. Scrambling and descrambling, likewise, are merely translations to and from a new language.
Computer science is full of such application-specific, simple languages; in fact, almost all of computer science can be seen as an exercise in data translation. This document, for instance, is written in HTML; a specialized language for text storage on computers which allows the user to request simple text formatting and provide hyperlinks to other documents. Philosophically and legally, there is no difference between the language in which this document is written and an encryption language. The program in which you are viewing this document (or perhaps the program which printed it, if you are reading this on paper) understood how to translate the language into the representation you are reading. On the storage media where this file resides, it is represented by a long string of magnetic spots or optical pits whose sequence represents ones and zeros.
Consider the case of Microsoft Word. Microsoft Word, for those who have not seen it, is a word processor used to assemble text documents not unlike this letter. Those documents may be printed, but they may also be stored on disk as files or exchanged in email. Like most word processors, Microsoft Word uses a custom file format; the way Word stores the document on the disk was designed by programmers working for Microsoft, and represents a specialized language just as access controls, encryption and scrambling routines do. If there is a prohibition on breaking access controls, Microsoft could reasonably argue that any other program that could read Microsoft Word files is "decrypting" them, thus breaking an "access control method", and thus in violation of the law. The same applies to any other program that uses a custom file format, a description which fits most useful computer applications. One copyrighted document stored in the format is all the legal proof that would be needed.
More chillingly for a programmer like myself, Microsoft could easily designate the windows executable format as an access control. This would mean that programmers would have to pay licensing fees to Microsoft in order to write programs that ran on Windows. Apple could legally do the same for the MacOS executable format. To do this would allow Apple or Microsoft (or any other producer of operating systems) to levy a tax on everyone who writes software for their operating systems, and to decide who is allowed to write software for their systems. This already happens in the game console industry in which I work, though the practice may or may not stand up in court if challenged.
The storage mechanism used by audio CDs is simply another specialized language, used to describe the power levels to be fed to the speakers to reproduce music. The same is true of the scrambling mechanism used in DVDs, the encryption system in Adobe eBooks, and all other forms of media storage. These specialized languages are technically and legally indistinguishable. All that can be said about them is the intent of the designer, and evidence from the computer and content distribution industries is that this simply means that the legal boilerplate in all future license agreements will have "All storage formats in this product are access controlled." appended. This has far-reaching implications, makes illegal many forms of behavior that do not infringe copyright.
In essence, a copyright holder can designate any storage format as an access control technology because there are no criteria on which to differentiate storage formats. No storage language can reasonably be considered more worthy of the title access control technology than any other. The concept of an access control technology is a statement of intent on the part of the implementor, not a quality inherent in the storage language. The legal problem embodied here is that a prohibition on breaking access controls prohibits a vast range of activities, and there is no good method of establishing limits on the prohibition. If history and the U.S. experience is anything to go by, prohibition will wind up being interpreted in the broadest possible terms, far beyond the scope of the planners of the law.
Reverse engineering, for instance, becomes illegal. This is a huge problem, because reverse engineering is essential both for the sake of competition and for the health of our increasingly technical society. Without reverse engineering, for instance, how are we to legally determine what purchased software is doing behind our backs? There are documented cases of programs stealing private information about their users and sending the information illegally to the program's author. If we cannot reverse engineer programs, how can we even know this is happening, let alone prevent it? Without reverse engineering, we lose an important freedom and an important ability to protect ourselves.
Reverse engineering also makes up for the utter failure of patent law; patents are now so incredibly vaguely worded that they are simply a blanket mechanism for lawsuits and monopolistic behavior. It has been years since patents were readable or detailed enough that they actually served their supposed purpose of informing the public or disseminating knowledge. To the engineer or the scientist, patents are useless; they are only useful to lawyers. Reverse engineering is necessary in order for people to find out what their competition's products are actually doing. It is also necessary for troubleshooting when dealing with systems which have components of unknown origin.
Many forms of translation become illegal, including some forms of translation essential for the operation of computers. The potential scope for monopolistic behavior, abuse and legal bullying with such a prohibition is massive.
Monopolistic control of distribution of copyrighted materials becomes easy; if a company or cartel of companies can seize control of a standard for distribution (say, for instance, the access control method used for DVDs), they can force any content producer who wishes to distribute on DVD to pay exorbitant licensing fees. They can prevent competing manufacturers from producing players, and they can control who is allowed to produce content by making the license fees unacceptably high for anyone who they wish to keep out of the industry. If the reader believes this to be speculation or fantasy, they are invited to look into licensing and distribution practices for DVDs and console videogames.
In fact, this is the reason why the content distribution industry is lobbying so hard for access controls to be given the force of law; once access controls are backed by law, their distribution monopoly is assured. They can charge any price they like, and can keep any competing media off the market by refusing to support it. There is no wording of such a law that will prevent this ambiguity, and the content distribution industry can be counted on to stretch the definitions as far as possible in court. Such a law is not in the interests of the Canadian public, nor is it in the interests of Canadian artists.
Access controls reduce diversity and choice in content, and will make it harder for Canadians to compete in the new economy.
In A Framework for Copyright Reform, one of the stated goals of copyright reform is "to stimulate the production of cultural content and diversity of choices for Canadians". Access control systems for copyrighted materials have the opposite effect; they reduce the diversity of available materials and restrict who may produce works for public consumption.
Consider the case of the DVD. The access control system on DVDs is used to prevent home users from making their own DVDs. Home DVD burners are prohibitively expensive for most people, and they are not capable of producing DVDs which can be viewed with a DVD player. They are only capable of producing data disks for computer data storage. The excuse given for this, of course, is copyright protection, but in practice it means that home users are denied the ability to produce their own works of art.
The owner of the access control mechanism has de-facto control over what can be protected and what the player will play. By definition, therefore, once all forms of media have content protection, the owner of the access control mechanism also controls who may produce art. Without the ability to legally make art that can be used with consumer electronics, one cannot produce works for public consumption. This becomes all the more sinister with the current proposed Bill in the United States, the Security Systems Standards and Certification Act. This Bill would require that all systems which can be used to display artistic works include "digital rights management", that is, access controls.
The companies who control the access control systems are also the companies distributing and licensing content, and this creates a serious conflict of interest. Copyright protection and access control mechanisms are already being used to reduce competition in the content distribution industry by creating a financial barrier to entry. Adding the weight of law to access controls by prohibiting the public from removing or reverse engineering them gives a monopoly on distribution to the owner of the dominant media type. This will vastly decrease the diversity and choice of artistic works available to the Canadian public.
Another of the stated goals of copyright reform in A Framework for Copyright Reform, is "to create opportunities for Canadians in the new economy". Access control systems for copyrighted materials, as we can see, will have the opposite effect; they hand control of distribution to foreign media conglomerates. This, in turn, reduces the influence of Canadian people and Canadian culture on the media in general.
As a console game developer, I speak with some authority here. In the console game industry, there are a small number of console manufacturers, each of which has a distribution monopoly on their own hardware. In practical terms, one can not produce works for the Sony PlayStation without permission from Sony, and such permission includes paying licensing fees. Similar is true of all of the other major game consoles. Adding legal force to access controls will make this true for all forms of media, and none of the entities which own these access control methods are Canadian.
Even ignoring the economic arguments, the cultural implications of allowing access controls to exist are unfortunate at best. To distribute on access controlled media, one needs to be able to encode one's content for the access control system. Since the proposed law would make reverse engineering of the access control system illegal, Canadian content producers would be at the mercy of whatever licensing scheme the owner of the access control system chose to impliment. Even now, when access controls do not have the weight of law, it is prohibitively expensive for the average citizen to produce a playable DVD or a console videogame of their own creation. As a console videogame author, this hits me where I live.
Furthermore, access controls are already being used in DVDs and videogame consoles to restrict the availability of works. The region locking codes in these media are used to prevent works from crossing region boundaries; media from one region is simply rejected by players whose region does not match that of the media. This is used to create artificial distribution barriers, both to limit the distribution of media and to allow collusive price-fixing. It also forces electronics manufacturers to pay licensing fees, the cost of which are passed on to the Canadian consumer.
Japan, one of the premier producers and consumers of artistic works in the world, uses the same television standard and the same power voltages and connectors as Canada; but for the language of the instruction manual, you can usually use Japanese domestic electronics in Canada and never know the difference. Often the same player is available in both markets. Players that use access controlled media, however, will not play Canadian material. Likewise, Japanese access controlled media will not play on Canadian players. This denies Canadian artists access to the lucrative Japanese market, and denies the Canadian public access to Japanese works; it is a system constructed to prevent trade and the interchange of culture and ideas.
Much of the artistic works produced in Asia and Europe are unavailable in Canada; they are only available through gray market import houses, and even then for videogames and DVDs one needs a player keyed to the region from which the work was imported. The region-locked players from other regions are exactly identical to the North American region players except for trivial differences of software; there is even a gray market in "mod chips" that change the region of players. The owners of the access control mechanisms, of course, have been trying to bring legal action to stop this gray market for years.
Access controls, region locking and similar technologies are designed to reduce diversity and choice of content; their purpose is to give greater control of the market to the content distribution industry. Even without support of law, such systems have already reduced the diversity and choice of artistic works available to the Canadian public, and have acted to the detriment of Canadian artists. Rather than granting force of law to such a detrimental system, access controls should be made illegal under Canadian law.
Access controls never expire.
The access control systems currently in use (the DVD Content Scrambling System, for instance) are simple encryption/decryption systems, and contain no expiry mechanisms. When the copyrighted material has passed the expiry date of copy protection and is legally required to enter the public domain, the access control system will still be in place. Furthermore, the software required to remove the access controls will still presumably be illegal.
Worse, players for access controlled data become obsolete quickly, and are replaced with players which use different control methods. Consider, for instance, the console game industry; the lifespan of a given console is less than ten years, and after its replacement arrives it is quickly removed from the shelves. Further, it has been argued that a large part of the reason for format changes in the content distribution industry has been to convince the public to upgrade and re-purchase all of their content on the new media. With no way to transfer their content to the new form of media, the general public will be forced either to keep old players around or re-purchase any content they wish to keep.
Access controlled works will never enter the public domain, which is a willful violation of the copyright bargain. Access controls should be made illegal under Canadian law.
U.S. law professors and Computing Professionals have been uniformly critical of the scope and intent of the Digital Millenium Copyright Act.
In the discussion of the U.S. Digital Millenium Copyright Act, there have been very few voices of support; aside from paid lobbyists of the content distribution industry, the author has been unable to find a single voice of support for this controversial legislation. Voices of opposition, however, are many and easilly found, especially amongst legal experts and computing professionals.
No less a body than the Association for Computing Machinery has expressed grave opposition to the D.M.C.A. Distinguished legal professors such as Eben Moglen and Lawrence Lessig have expressed similar concerns. The American Civil Liberties Union has described the D.M.C.A. as creating unprecedented expansion of liability under copyright law. The Electronic Frontier Foundation has been fighting the D.M.C.A. since the proposal of the Act, and is now urging Canadians to do the same for the proposed revision to the Canadian Copyright Act. The Electronic Privacy Information Center expressed opposition to the D.M.C.A. as well, warning that "the anti-circumvention language in section 1201 is extraordinarily broad and will have all sorts of unintended consequences.". Researchers in information and encryption fields have expressed concern that whole branches of mathematics have been made effectively illegal, and several international conferences have declared that they will boycott the U.S.A. until the D.M.C.A. is repealed, for fear of the unwarranted arrest of academics.
Voices like that of Joel Walker, associate editor of Reason magazine, are sharply critical of the D.M.C.A. and the process which brought it into law. Likewise, Bryan Pfaffenberger, Associate Professor of Technology, Culture and Communication at the University of Virginia, likened the passage and use D.M.C.A. to the behavior of a corrupt dictatorship. Computer industry news sites on the Internet such as Linux Weekly News and Slashdot have been uniformly critical of the D.M.C.A.
There is no shortage of distinguished voices of opposition to the D.M.C.A. The few voices of support are from within the content distribution industry, and have severe conflicts of interest. In the short duration of its existence, the D.M.C.A. has been wielded as a bludgeon by the content distribution industry; the scope of abuse made legal by this abhorrent Act is stunning. The D.M.C.A. has been used in the United States to stifle academic research, and to prevent fair use.
It has also been used to arrest employees of competing businesses, an act which has caused the government of Russia to advise Russian citizens with backgrounds in computer science against travel to the United States; Sklyarov, after all, was arrested for giving a lecture. Alan Cox, one of the premier developers of the Linux operating system, has urged non-U.S. software engineers to stay away from the United States "Until the DMCA mess is resolved". The irony of a Russian citizen being arrested in the United States for non-political speech would be rich, were it not so frightening. The D.M.C.A. has, in the United States, subborned freedom of speech to the financial interests of corporations. Public outrage, needless to say, has been great, despite the fact that the mainstream news took almost no notice of the case.
The D.M.C.A. has also been used to gag the free press, a case in which the Dean of Stanford University's Law School, Kathleen M. Sullivan, appeared on behalf of the defense and argued that the D.M.C.A. was unconstitutional. In highlighting the fundamental problem of access controls, she argued: "It's a statute that protects against access, not against use,". In the case, 2600 Magazine was enjoined from even linking to the subject of the trial; this is akin to declaring that a newspaper could not show pictures of a subject or indicate where it might be found.
According to Open Secrets, a U.S. based website that tracks financial lobbying in U.S. politics, the content distribution industry has donated almost one hundred million dollars to federal politicians in the United States over the past ten years. Given the vast sums of money being funneled to Washington politicans by the content distribution industry, the shady nature of the passage of extensions to U.S. copyright law, and the lack of serious public consultation or consideration of the public interest in the passage of the D.M.C.A. and similar copyright amendments in the United States, the current state of U.S. Copyright law should not be considered as a model for balanced intellectual property legislation.
Furthermore, considering the taint of corruption that clings to the D.M.C.A. in the United States, it would be unwise for the Canadian government to consider a similar law. Even if passed with the best of intentions, it will reduce the trust which the Canadian public has in the Canadian government; the similarity of the law would invite comparison with it's U.S. counterpart. Such a law is clearly not in the interests of the Canadian public or the Canadian government.
The duration of copyright protection is already far too long, and should not be extended further. Copyright protection should last for ten to twenty years at most. The interests of the Canadian public and Canadian artists are not served by a longer duration.
Copyright restricts public action far more than it should. There are a wide range of actions useful to the public and harmless to artists which are made illegal by the Canadian Copyright Act. The Act should be reconsidered in light of what the public actually wants from the artistic works which they purchase, rather than the limited scope of actions which the distributors wish to allow.
The proposal to add protection for content control systems to Canadian copyright law is ill-considered and undesirable. The consequences of adding the weight of law to access controls will tip the balance of rights embodied in Canadian Copyright law even further away from Canadian artists and the Canadian public. It will inconvenience the Canadian public and artistic community, increase the technical complexity of intellectual property court cases, and will sacrifice the interests of the average Canadian citizen and the interests of Canadian artists in favor of the financial interests of multinational media conglomerates. It will also decrease public faith in the Canadian government.
Rather than being granted the weight of law, access control systems for copyrighted materials should be made illegal. Access controls are directly counter to the interests of the Canadian public and Canadian artists.
- Copyright Act
- The Canadian Copyright Act
- H.R.2281: The Digital Millenium Copyright Act
- The Digital Millenium Copyright Act; unfortunately, the webserver it is stored on will not provide permenant links, so the Act must be accessed through the search engine.
- Courtney Love on Compensation of Musicians
- An American rock musician demonstrates why musicians see almost none of the money they are owed; it all goes to the distributors.
- Eben Moglen: Anarchism Triumphant
- An essay which discusses the problems of intellectual property law in a world with zero-cost copying.
- The Electronic Frontier Foundation
- An U.S. based organization dedicated to protecting the public interest online.
- Lawrence Lessig: Jail Time in the Digital Age
- An article by a U.S. law professor discussing some problems with the D.M.C.A.
- The "Free Speech, Free Sklyarov" petition
- A petition to free Dimitry Sklyarov, a Russian citizen arrested in the United States for giving a lecture on access controls.
- The Globe and Mail: Russian's case shows severity of copyright law
- An article in the Globe and Mail discussing the Sklyarov case.
- Joel Walker: Copy Catfight
- A discussion of some of the more egregious developments in U.S. intellectual property law over the past few years.
- Security Systems Standards and Certification Act
- A new proposed Bill in the United States which would require access controls in all equipment that accesses digital media. The implications of this Bill are disastrous for the U.S. public, and for the Canadian public as well.
- Open Secrets
- A web site that tracks financial donations to U.S. politicians and tracks donations against each politician's voting record.
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