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[d@DCC] Correspondence with Mr. Rajotte
From: Russell McOrmond <russell _-at-_ flora.ca>
(Please share with other members of the Conservative party) I would like to draw Mr. Rajotte's attention to an article in this morning's Toronto Star. http://geistcopyrightpolitics.notlong.com This duality suggests that copyright policy must consider both economic and cultural goals. Were Industry Canada to adopt an exclusively economic-based approach, it might eliminate government programs supporting the arts on the grounds that it is the market that should determine Canadian cultural activity. Similarly, a single-minded focus by Canadian Heritage on cultural goals would risk the development of extreme copyright policies that place the interests of the culture sector ahead of the broader economy and the public interest. I would like to offer a few comments on Mr. Rajotte's current position on copyright: On Fri, 18 Feb 2005, Rajotte, James - Assistant 1 wrote: > O T T A W A > February 18th, 2005 > > Dear Mr. McOrmond: > > On behalf of Mr. Rajotte, I would like to thank you for your continuing > correspondence on a number of issues including copyright and software > patents. > > Let us know when CIPO provides you with more information on software > patents. I was not sure with your last e-mail if your questions were > resolved. My questions are not resolved. This is expected to be an ongoing battle with the government. What is offered a government protected monopoly in the form of patents has been continuously expanding in Canada. This is without parliamentary or judicial oversight, but through legal re-interpretations of outdated laws by special interests who have an economic incentive to create uncertainty in the marketplace. > I am pleased to provide you with Mr. Rajotte's position on copyright. > > Sincerely, > > Michele Austin > Legislative Assistant > The Office of James Rajotte, M.P. > > I have been monitoring this issue very closely and several committees of > the Conservative Party of Canada caucus have been discussing copyright. > I understand there have thus far been no amendments proposed to the > Copyright Act, and the federal departments of Industry and Heritage are > still spending considerable time and resources trying to work out how to > best move forward with this file. The position offered is consistent with what I hear from others. It keeps the debate at the highest level where nearly everyone agrees. Once we dive into the details of how to achieve these common goals, the opposing methods show themselves. The debate in copyright is not about these common goals, but about the methods to achieve these goals, and what existing (or proposed) policies are in opposition to these goals. It is my hope that Mr. Rajotte and other Conservatives will side on a free market support for a full spectrum of development, distribution and business models for creativity. Public policy needs to not only be technologically neutral, but also neutral on these other areas of innovation as well. The government has thus far been protecting incumbent development, distribution and business models, with the entire purpose of the 1996 WIPO treaties being to protect the incumbents from new-media competition. In the language of Mr. Geist, Heritage has been granted far too much control and not only is avoiding a market based approach, but is also ignoring future innovation and creativity in order to protect the past. Much of the most contentious issues in copyright can be explained using the following quote from US law professor Lawrence Lessig. * Creativity and innovation always builds on the past. * The past always tries to control the creativity that builds upon it. * Free societies enable the future by limiting this power of the past. * Ours is less and less a free society. Innovation and creativity is necessarily disruptive over the long term of established ways of doing things. This disruption should be recognized as progress, not a threat to creativity. When the electric light bulb was invented we did not create protectionist policy for candle makers to protect them from this innovation. > Canada has been less aggressive than most of its other international > competitors in linking innovation to intellectual property, or in > protecting and promoting intellectual property rights. The Conservative > Party believes that we must continuously examine and update our > copyright legislation. We all agree that there is a link between innovation and intellectual property. Where there are debates is how that link works. A common belief is that "if some intellectual property is good for innovation, then more is better". Pretty much every economic study done on this subject has indicated that this is not the case. Copyright and Patents are to creativity and innovation like water is to humans; too little and you dehydrate and die, too much and you drown and die. Unfortunately when politicians see creativity hurting they throw more water at us, not realizing that in a number of cases the cause of the pain is that we are already drowning. The Canadian government should be protecting and promoting creativity and innovation. Copyright and patents are simply tools governments can use to offer that protection. When we confuse the tools for the goals, we risk inflicting considerable harm. > The Conservative Party of Canada believes that the objectives of > copyright legislation should be: > > * to create opportunities for Canadian creators to enjoy the > fruits of their labour to the greatest possible extent; > * to ensure that the rights of Canadian creators are adequately > protected by law; This should not simply include exclusive rights for the outputs of creativity, but to ensure access to existing culture upon which all creativity and innovation builds. This requires that the term and scope of exclusive rights are adequately limited. As a creator I became involved in copyright because new policy proposals that claimed to be protecting creators was in fact seriously harming the sector I am from. > * that these rights are balanced with the opportunity for the > public to use copyrighted works for teaching, research and lifelong > learning; > * that enforcement is applied fairly and in accordance with > international standards. There is a belief that the 1996 WIPO treaties represent an "international standard" on copyright. This can't be further from the truth, and in fact they represent a misguided direction from a single country which is already having considerable problems with its own implementation of the law. In the early 1990's the United States launched a National Information Infrastructure initiative. As part of this initiative there was a Working Group on Intellectual Property Rights. Rather than seeking ways to regulate this new media to support a full spectrum of development, distribution and business models, they instead created recommendations that would make this new media "safe" for the old-media incumbents. This is a direct opposition to a market based approach that would have enabled new-media innovators and creators to possibly disrupt established business processes and replace the incumbents. The 1995 "Lehman report" is available at: http://www.uspto.gov/web/offices/com/doc/ipnii/ The USA then took this extreme anti-free market vision to WIPO, and in 1996 a watered down set of recommendations were signed by many countries. The USA then implemented this vision in their 1998 Digital Millennium Copyright Act which came into force in 2000. The chill on innovation and creativity has been considerable, especially with the USA arresting foreign innovators. There is discussion of how this law may affect homeland security given there is a chill against security research that might relate to copyright in the United States. The Technological Protection Measures used to protect privacy, authenticity and other security measures are the same tools (ab)used by those claiming to be protecting copyright, so this is a chill on most security research. Note: Since the keys, algorithm, and data (content) are all present whenever digital media is played, Digital Rights Management (DRM) will always be trivial to circumvent. This is a technical fact that no amount of man-made laws can change. Legal protection for these techniques will only ever affect law abiding citizens who would have been less likely to infringe copyright in the first place. Microsoft Research DRM talk (See: "1. DRM systems don't work") http://www.craphound.com/msftdrm.txt Since 1996, WIPO has also seen far more balanced debate. As a counter proposal to the "Lehman report" a number of developing nations have come forward with a "development agenda". Canada will need to decide where it stands on this important issue: will it protect only incumbents, or will it protect future creativity including enabling the independent development of least developed nations? Which of these conflicting policy goals will Canada side with? Future of the World Intellectual Property Organization http://www.cptech.org/ip/wipo/futureofwipo.html Geneva Declaration on the Future of the World Intellectual Property Organization http://www.cptech.org/ip/wipo/genevadeclaration.html > Canada needs to be more assertive in enforcing copyright with respect to > file sharing and digital media. At the same time, we continue to > support the private copying regime in Canada that entitles an individual > to make copies of sound recordings of musical works for that person's > personal and individual use. The question becomes, how does Canada become more assertive? A free market approach would be to allow the affected industries to sue those infringing their rights. In the federal case with CRIA (BMG vs. John Doe) there was inadequate evidence of ownership of the copyrights of the relevant files. Should the government step in and help the private sector to provide evidence of infringement? I believe it should be obvious that the government should not step in and make the burden of proof lower, something that would create a considerable chill on innovation and creativity -- not protect it. The use of peer-to-peer should never be allowed to be incorrectly equated by the incumbents to copyright infringement. This may be how the incumbent content industries see this, but that simply because it represents disruptive innovation. While in broadcast media there were large costs to distribution, the peer-to-peer design of the Internet lowers these costs such that an low-budget (possibly home) movie can be widely distributed without needing any more bandwidth than what most Canadians already have in urban homes. P2P should not be seen as harmful to creativity, but an important innovation that will bring inexpensive digital media distribution to the masses. This can disrupt the old-media monopolies and allow for a free market in creativity that was not possible in the broadcast era. > For Canadian students and teachers, reasonable access to Internet > resources is a critical necessity for learning and teaching. Access to > copyrighted materials enriches life long learning, and is an essential > component of an innovative economy. Exceptions can and should be made > with respect to copyright legislation and educational public policy > goals. We are moving into a time where we have the information and communications tools to enable life-long learning. Innovation in education will allow distance learning to be extended to the point where there may no longer be a connection with a traditional educational institution. I believe the time of institutional exceptions has run its course, and we should instead be looking at creating appropriate limits to the scope and term of copyright that are not tied to any institution. In terms of the exception requested by the educational community for the use of the Internet, and the levy requested by Access Copyright in response, neither is necessary or desirable. What is needed is for the government to legally clarify different parts of the Internet to be consistent with how they have been operating. The Internet can be divided into two distinct "modes" of operation: a) An anonymous "no membership required" mode where materials are published and accessed (browsed) under the assumption that there is no further permission or payment required for these uses. b) A "membership required" mode where materials are published behind some type of technological protection measure (Passwords, cookies, etc). Since it is possible to grant these members different access depending on payment, a full spectrum of business models is supported in this mode. What the Interim report on Copyright recommended is that educational use of the anonymous "no membership required" mode be levied, with a zero-rating offered for those creators who used a complex copyright license to indicate what most recognized as being the status-quo. I go into more detail in other articles, but I hope that the conservatives will give this issue an adequate hearing and will reject both the exception and the levy recommendations. Summary of Interim Report on Copyright Reform (See: "Excess Copyright? Towards a full spectrum of business models for published works." ) http://www.digital-copyright.ca/node/view/550 When I look at the levy proposed, I see something quite different. Given this is a levy that is imposed on creators (who are forced to "defend" the royalty-free status of their works at the Copyright Board) and the "customer" (educational institutions), this looks far more like a government program than an exercising of an exclusive right. Looked at as a government program in support of culture, it breaks a number of goals: a) It does not have adequate parliamentary oversight, as other government programs do (or should). b) It disrespects federal/provincial boundaries, having provincial governments through their educational budgets funding a federal program. Letter to Ottawa-South members of provincial and federal governments: careful of the stealth transfers. http://www.digital-copyright.ca/node/view/695 If the federal government wishes to create a program to help fund writers then they should do so from a federal budget. The most appropriate model to follow is the funding through the Department of Canadian Heritage for the so-called "Public Lending Right". Final Report - Evaluation of the Public Lending Right Program http://www.pch.gc.ca/progs/em-cr/eval/2003/2003_03/index_e.cfm Other alternatives exist in the form of Open Access. Much of the materials needed for educational use are of the type ideal for peer production development methodologies (See: http://www.flora.ca/floss.shtml ) and Open Access publishing. This is material such as non-fiction textbooks and research materials. Much of this is currently created in an educational setting and then re-sold through educational publishers back to the educational community. New methodologies would allow the educational community to "skip the intermediaries" (the educational publishers) and supply their own demand. See: http://open.utoronto.ca/ This could take care of the bulk of what is currently spent on educational publishers, leaving fictional literature and other such works which do not lend themselves to these alternatives. With a much smaller percentage of the works to be dealing with, voluntary licensing systems within a free market may continue to be the best option. > The Conservative Party of Canada encourages the government to expand its > role in increasing awareness and education in working with industry to > develop a public education campaign to better inform users and creators > on the copyright laws in Canada. I believe we have a lot of work to do on cleaning up the copyright act before this is feasible. I was at a copyright conference a few weeks ago and there is not consensus between different lawyers on the plain-language reading of the existing act. If this is a law where lawyers are unable to consistently interpret, how are private citizens possibly able to obey it entirely? Prior to digital media there were 3 classes that uses of works could be put in: unregulated uses, regulated uses that were fair dealings, and regulated uses that were exclusive. With a book most uses were in the unregulated class, where the purchaser of a book could allow any number of people to read it any number of times, and they could do anything else with the book they wanted (sleep on it, use it as furniture, dispose of it any way they wished including as firewood). With digital media there was a (IMHO mistaken) assumption that any copying that happened within a computer should be interpreted as a regulated copy. Without adequate democratic oversight we wiped out the entire class of unregulated uses, leaving us to try to defend what little balance remained through "fair dealings". While I agree with the incumbents that there is more copyright infringement in digital media than in the past, we disagree on the reasons. I believe that the vast majority of digital infringement comes from the fact that more common activities are now considered regulated by copyright. Activities which most citizens would not recognize as harmful to a copyright holder are in fact currently considered infringement. I believe that ongoing attempts to protect incumbents from disruptive free market changes (WIPO treaty ratification, ISP liability, Private copying levy, levy educational use of the Internet) only makes the law more complex, and thus harder to respect. -- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> http://www.digital-copyright.ca/blog/2 (My BLOG) Sign the Petition Users' Rights! http://digital-copyright.ca/petition/ _______________________________________________ Discuss mailing list Discuss@list.digital-copyright.ca http://list.digital-copyright.ca/mailman/listinfo/discuss
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