DRAFT: Submission to 2001 copyright reform
From: Russell McOrmond <russell _-at-_ flora.ca>
To: No DMCA in Canada <canada-dmca-opponents (at) flora.org>
Date: Sun, 5 Aug 2001 14:33:08 -0400 (EDT)
Here is a basic outline of what I wish to submit to the reform process. I will also want to send in specific reponses to the existing documents on their site, but have not yet read them (I have a stack of paper for my "light reading" in the next few weeks which includes the current copyright act ;-) My work-in-progress will be at: http://russell.flora.org/drafts/copyright-2001.html Who else is working on a submission? We should ensure that we compare notes in this forum. Hearing the same thing said may times will be helpful in this process. We want to ensure a ballance in what get sent in, and not have us drown out by the big-money/big-business monopoly-lobby. --- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> RMS clarifies Freedom http://www.gnu.org/press/2001-05-04-GPL.html Free Sklyarov http://www.dibona.com/dmca/ http://www.freesklyarov.org/ http://www.flora.org/dmca/ Oppose DMCA in Canada! ---------- Forwarded message ---------- Date: Sun, 5 Aug 2001 14:13:27 -0400 From: Russell McOrmond <russell@flora.ca> To: russell@flora.ca Subject: DRAFT: Submission to 2001 copyright reform DRAFT! Submission to 20001 copyright reform consultation Summary In order for a correct balance between constituencies on copyright to be achieved, a number of different relationships between copyright and other related Canadian law, as well as differing and often incompatible needs of copyright holders. I will use myself as an example of a self employed consultant who makes use of copyright works, specifically software governed under licenses that fall under the broad category of Free Software which is a well defined subset of what is commonly referred to as Open Source Software. The business models used in the Free Software industry are often quite different than those of the proprietary software industry, with the requirements of copyright law sometimes not only being different but incompatible. Aspects of copyright law that are often referenced as guiding innovation in the proprietary software industry can often become a strong barrier to innovation in the Free Software industry. Copyright law must also find it's place in relationship to other domestic Canadian laws and international agreement. Copyright law must never be able to be used as a justification for non-compliance with Canada's Competition Act, Access to Information Act, Privacy Act, or open procurement and standards requirements of NAFTA and AIT to name a few laws where copyright can come in conflict. The balance must weigh in favor of these other laws, with the granting of temporary exclusive rights afforded to copyright holders only being granted when not in conflict with these other laws. BODY being filled in * Introduction of author + Self employed, small-business which offers services to both public and private sector clients, primarily in the non-profit/NGO/Voluntary sectors. + CopyLeft, not copyright, seen as best method to protect works. Legal minefield set up by copyright (restriction on reverse engineering to create compatible products), patents and trademarks create enormous barrier to entry for small business. Only protection comes from working in a larger Free Software industry which has legal and research support to protect programmers from larger industry players using court challenges to squash competition. + 3 broad categories of business models that use copyright in different ways. o Selling Licenses Prominent method use by bigger businesses, modeling business practices against those that worked in the Industrial economy. This model makes money by creating artificial scarcity of software through restrictions in the ability of consumers to copy works. o Software as a Service The growing ASP (Application Service Provider) market which includes players from both the Free Software and proprietary software markets. The new Microsoft .NET initiative as well as the compatible Free Software Mono projects will primarily use business models in this category. In this business model the customer is purchasing the processing ability of remote software which is never sent to the customer, and thus copyright is not a factor. Authors who wish to keep their code private would do so through Trade Secrets which rely on privacy laws and not copyright. o Servicing Software Most popular business model used by the Free Software industry where programmers get paid to innovate and increase the value of existing Free Software. In this case copyright is primarily needed to protect authenticity of software (IE: the copyright notice identifies the author) which gives credit to the author. Copyright laws are also used by the GPL (General Public License) to protect derivative works from removing freedoms afforded in the original intellectual work, to ensure that the availability of Free Software will continue to expand. Model relies on open access to software API's (Application Program Interfaces), File formats, network protocols, etc. Software cannot be based on a trade secret as the source code must be available to all. Copyright reform which restricts the disassembly of software to create compatible formats, cryptanalysis of distributed files to allow for alternative reader/player technologies, or other such restrictions become an insurmountable barrier to innovation and competition in this market. When governments, such as the USA, enact copyright laws such as some of the provisions in the DMCA they are not universally helping all copyright holders, but choosing which markets will survive and which will fail. * Case Study: DVD CCA (Content Control Association) Case Used not to control the copying of works (which is not restricted in any way by the format as DVD CD's, as with any CD, can still be copied without technical restriction), but control the DVD player market. This is a clear case where copyright is coming in conflict with competition laws, and where competition laws should prevail. * Case Study: Adobe eBook and the U.S. v. Sklyarov Used not to control the copying of works (which is not restricted in any way by the format), but control the reader market. This is a clear case where copyright is coming in conflict with competition laws. Law used in US-v-Skyarov to arrest and imprison programmer for complying with laws in his own country (Russia, which better protects fair use) which conflict with controversial U.S. copyright law. * Case Study: PLCOM.net PLCOM.net filed with the CITT against two government departments essentially for using software other than a branded (Microsoft) solution. We hope to get final information from the second case soon to use as an example where allowing further proprietary information formats (IE: encrypted eBooks, DVD's, etc) may come into conflict with NAFTA/AIT, disallowing Government to use any works only available in these formats. _________________________________________________________________ Investigate * Current copyright law exceptions relating to "fair use"/etc. * Current Competition Act and Competition Bureau * Access to Information Act and Privacy Act * Trade agreements relating to standards in government procurement/etc + NAFTA Chapter 9: Technical Barriers to Trade NAFTA Chapter 10: Government Procurementt (Article 1007: Technical Specifications) + Agreement on Internal Trade + Canadian International Trade Tribunal + PLCOM.net as case study -- For (un)subscription information, posting guidelines and links to other related sites please see http://www.flora.org/dmca/
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