[d@DCC] Letter to MP Re: Proposed Copyright Act amendments over-reach

From: Russell McOrmond <russell _-at-_ flora.ca>
To: General Copyright Discussions <discuss (at) list.digital-copyright.ca>
Date: Thu, 11 Nov 2004 13:00:37 -0500 (EST)

  I am forwarding a letter to an MP to this list as an example for other
people to follow!

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Code is Law: how software code regulates the activities of citizens,
 and acts similar to law.  How do we ensure transparency/accountability?  
 http://www.flora.ca/russell/drafts/code-is-law.html

---------- Forwarded message ----------
I license the text following to you under the license found here: 
http://creativecommons.org/licenses/by-nc-nd/2.0/


From:
Randy Legault
999 Connaught Avenue
Ottawa, Ontario
K2B 5M7
<phone number omitted>


Dear Ms. Catterall:

I am writing as a constituent who voted for you in the last federal
election and who posted a lawn sign.  In the next election, I will
have to reconsider.  Fast-tracking embarrassing radical policy
proposals from the Standing Committee may succeed in avoiding public
awareness and debate, but it has not escaped my attention.

I am concerned that the Standing Committee on National Heritage has
not adequately considered the implications of proposed amendments to
the Copyright Act and proposes to proceed in a way that fails to
balance the rights of creators, consumers and intermediaries.  I would
be pleased to meet with you to discuss the reasons why the report is
ill-conceived and is, to my thinking, an abdication of your duty to
represent your constituents and Canadians more generally (not just
publishers).

Canada's foremost academic/legal authority on copyright, Michael Geist
blames "an amazing lobby job" by the recording industry.  It is a
pleasure to me to see how even lawyer can learn.  Michael once
dismissed my long-held concerns in conversation as being the "fair
use" argument.  Now, after thinking and writing extensively about this
issue he has come to an in-depth understanding that seems to have
escaped your committee.

This policy direction that threatens to dampen innovation and extend
unjustified and burdensome monopolies on the public.  Copyright has
its place and no-one would argue that the grant of a time-limited
monopoly is an incentive to creators.  However, any extension of
Copyright is an infringement on the cultural commons that is our
heritage.  We are witnessing the privatization of heritage globally
through overlong and over-reaching "intellectual property" regimes --
most infamously the misbegotten U.S. Digital Millennium Copyright Act 
The first huge step on the slippery slope is the ratification of WIP0
treaty.

Your committee is proposing to fall into a trap in a way that will not
balance the obvious harms to Canadian cultural heritage, knowledge
economy and innovation.  I will not speculate whether this is due to a
facile understanding of the issues or, less generously from a desire
to serve established industry interests to the detriment of the public
good.

I commend the following analysis of the "consensus of the willing" report:
adapted from that of Russell McOrmond
that can be found at: http://www.digital-copyright.ca/node/view/550 

  1. The highly controversial WIPO treaties
     http://www.wipo.int/copyright/en/treaties.htm were signed in
     1996, long before most policy makers and citizens started to
     understand new media like the Internet. We should move forward
     including all stakeholders and not just the special interests from
     incumbent industrial associations that influenced these treaties
     which oppose new media. These treaties are based on extremist
     policy recommendations originating out of the United States who
     implemented these policies in their Digital Millennium Copyright
     Act ( http://www.eff.org/IP/DMCA/ ).

  2. There is no advantage and many inconveniences to changing the
     rules around photography to be different than how most Canadians
     would understand. Photographers are already recognized as the
     authors when they take pictures on their own initiative, but this
     recommendation will cause many unintended consequences outside
     situations that are similar to other creators. When a picture is
     taken on my camera, absent an agreement to the contrary, I should
     be the copyright holder. This is how the copyright act has worked
     since cameras were invented and policy makers added photography to
     the act.

  3.  I think that it would be a grevious error to impose a "claim and
     censor" type regime for Internet Service Providers (ISPs).  I
     suspect that it would not stand up to the due process requirement
     of the Canadian Charter of Rights and Freedoms.  The onus should
     be on the aggrieved party to prove on the balance of probabilities
     before a court of law that content is infringing before ISPs are
     ordered to remove content.  Courts can issue interim injunctions
     if time is the essence.  What your committee proposes put
     enforcement in the hands of corporate lawyers who can bully ISPs
     into taking down content regardless of the expressive rights of
     the poster.  This threatens the free exchange of ideas that is at
     the core of democratic governance and the democratic promise of
     the internet.

  4. The radical proposal for an "extended license" proposal is an
     unwarranted extension of the economic reach of copyright holders.
     The very idea of collecting royalties from educational
     institutions for works received from the Internet belies a
     fundamental  misunderstanding of the way the Internet works.  The
     publishers of works on the internet should internalize the cost of
     their distribution channel decisions.  No-one forces you to
     distribute on the internet and it is easy to charge licensing for
     internet distribution without invoking a state sanctioned internet
     tax.

  5. Attempts to define "publicly available material", reverses the
     underlying premise of copyright that is that copyright is a
     noxious monopoly that is tolerated by society for economic
     reasons.  Just as the license for a book does not need to clarify
     that a purchased book may be read any number of times by any
     number of readers as this is implied by the nature of a book, the
     same is true of the royalty-free ability to access and cache
     documents on the password-free Internet. Their definition will
     cause royalties to be collected based on works where the copyright
     holder didn't use a legalistic license to indicate a document is
     royalty-free, or dishonest copyright holders who seek to create
     confusion about the implied license.

  6. Another exception to copyright in the form of an "extended
     license", this time for materials distributed by educational
     institutions. There is no justification for this exception as
     copyright holders or collectives can already license works where
     they are the copyright holder, or the work is part of the
     repertoire of the collective. Like recommendation 4, this
     exception allows collectives to invalidly collect royalties from
     works that are not part of their repertoire, something I have a
     hard time differentiating from commercial copyright infringement.

  7. The"extended license", collected from libraries for electronic
     inter-library loan is less desirable that existing market based
     solutions which do not have the very harmful unintended
     consequences. No exception to copyright is needed in any of these
     extended license examples, and the government has no business
     imposing business models on copyright holders or their potential
     customers.

  8. Fast-tracking these embarrassing radical policy suggestions may
     succeed in avoiding public awareness and debate. The report
     appears to have only accepted information from witnesses
     representing incumbent content industry associations and
     collectives, all of which appear to see new media like the
     Internet as a threat to their monopoly positions rather than an
     opportunity for the creators they falsely claim to represent. This
     report doesn't appear to be about protecting copyright, but
     creating exceptions to protect these monopolies from legitimate
     and much needed competition





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