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[d@DCC] Correspondence with Mr. Rajotte

From: Russell McOrmond <russell _-at-_ flora.ca>
To: "Rajotte, James - Assistant 1" <RajotJ0 (at) parl.gc.ca>
Cc: General Copyright Discussions <discuss -_at_- list.digital-copyright.ca>
Date: Mon, 21 Feb 2005 10:00:34 -0500 (EST)
References: <2D58CFB667F64D4F83C6826AED50F0B0017755C1@exc01z.hoc-cdc.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re-interpretations of outdated laws by special interests who have an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/
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