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Competition Act vs Copyright Act: conflict in proposed changes.
From: Russell McOrmond <russell _-at-_ flora.ca>
(Copy to my MP and the canada-dmca-opponents forum) I spent part of my time this last weekend while visiting Montreal reading the current Competition act. <http://laws.justice.gc.ca/en/C-34/> This was added to my previous "light reading" of the current Copyright Act, NAFTA Chapter 10, parts of AIT, the Copyright "reform" process discussion papers... I will be trying to use what I understand from the Competition Act in my copyright submission and in related activism in a few ways. I am not a lawyer, and would appreciate any comments on these specific sections and my small summaries: - Section 9 indicates that if 6 residents of Canada file a complaint, then an investigation should be started. There is currently an "An Appeal for support" in relation to the status of Microsoft in Canada http://www3.sympatico.ca/cjw/AppealForSupport.html I urge anyone reading this to read the materials there, and to submit information requests to the Competition Bureau to try to encourage information on this case to be released. I have already made a submission to the Competition Bureau <http://www.flora.org/dmca/forum/42> in relation to DVD CCA. While I received a reply indicating that my "complaint regarding the DVD Copy Control Association has been forwarded to the Civil Branch of the Competition Bureau for action.", I have not received any further correspondence. I will post any further feedback I receive on either of these, and call on anyone reading this to make their own submissions to the Competition Bureau as well as the Minister of Industry and your own MP. We need to get involved and very political! - Section 32 indicates that "the exclusive rights and privileges conferred by one or more patents for invention, by one or more trade-marks, by a copyright or by a registered integrated topography" are not excused to be anti-competitive, and that the courts may order many different things. This may only relate to domestic privileges as paragraph 32.(3) seems to suggest that foreign treaties/conventions/etc trump this section, although I'm not sure how this limitation works. It does speak of acts which "limit unduly the the facilities for transporting ...supplying, storing or dealing in any article or commodity that may be a subject of trade or commerce" which seems to speak to regional encoding and whether it is illegal to limit ones ability to move DVD's from one country to another. Note: This was all already considered by (or submissions made to) the Australian Competition and Consumer Commission http://www.accc.gov.au/speeches/2001/jones_intellectual_property_11_5_01.htm The Commission has requested the Australian subsidiaries of United States film companies to explain why their regional restrictions on DVDs should not be deemed a breach of the Trade Practices Act 1974. The restrictions are maintained under the Regional Playback Control (RPC) system that splits the world into six distinct markets. http://www.accc.gov.au/speeches/2001/fels_sydney_institute_23_4_01.htm Australian consumers are currently suffering from an international cartel that restricts their access to digital versatile discs (DVDs). The cartel, headed by major film studios in agreement with the manufacturers of DVD players, has divided the world into regions. http://18.104.22.168/accc.internet/media/search/view_media.cfm?RecordID=218 The Australian Competition and Consumer Commission today advised consumers to exercise caution when purchasing a DVD video player because of the restrictions that limit their ability to play imported DVDs. - Section 45 speaks of "conspiracy, combination, agreement or arrangement" which seems to relate to cartels such as the DVD CCA <http://www.dvdcca.org/> - Section 77 deals with "exclusive dealing" and "tied selling", and I will argue that with DVD's that the purchase of a DVD movie seems to be "tied" to the direct or indirect (via purchasing of a DVD player) purchasing of a license from the DVD CCA for the Content Scramble System. Competition is clearly reduced as the "exclusive dealing" of requiring such a license removes from the unrelated DVD-player market any player based on Free Software which by its nature involves the full disclosure to the public of the source code and thus cannot contain claimed trade secrets. While the case is obvious in the situation of a Free Software player which cannot comply with a DVD CCA license agreement, the problems that exist with any cartel and a third party "player" producer still exist for those player producers who do have the legal ability to comply with the DVD CCA license agreement. - Sub-Paragraph 78.(1)g indicates as part of the definition of "anti-competitive act" the "adoption of product specifications that are incompatible with products produced by any other person and are designed to prevent his entry into, or to eliminate him from, a market;". The current "war on Free Software" from Microsoft and other promoters of the interpretation of copyright as "intellectual property", including the members of the DVD CCA, will clearly involve this sub-paragraph. - Section 82 and 83 speaks of "foreign judgements" and "Foreign laws and directives" and after a ruling on the above issues in relation to specific applications of the anti-circumvention clauses of the US's DMCA such as DVD CSS and proprietary e-Book formats may be used as a method to ensure that the US's DMCA is not enforceable in Canada. - Section 125 suggests that the Commissioner of Competition to make representation to the Copyright board in how proposed changes will affect competition. It suggests that the Commissioner can do this on his own initiative or by request of the board, but I don't currently know how to suggest, as a citizen in Canada, that this representation should be made. When I returned from the weekend, I noted some references to proposed changes to the competition act. I have not had time to read and fully understand this, but bill C-23 has had first reading and has wording in the summary such as: From: http://www.parl.gc.ca/common/bills_house_government.asp?Language=e&Parl=37&Ses=1#C-23 which links to: http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C-23/C-23_1/90150eE.html ---cut--- (3) No order shall be made under this section that is at variance with any treaty, convention, arrangement or engagement with any other country respecting patents, trade-marks, copyrights or integrated circuit topographies to which Canada is a party. ---cut--- This to me reads as if these temporary monopolies on information will be able to be used as legal justification to not give evidence to a judge/etc during an inquiry. If I have read this wrong, and I hope someone will confirm I have, it seems to me to continue to be getting way out of hand with the interpretation of copyright being some form of property, where this (supposedly temporary, but with huge loopholes) government granted monopoly on an idea is being granted higher status than even real property has been. --- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> Free Sklyarov http://www.dibona.com/dmca/ http://www.freesklyarov.org/ http://www.flora.org/dmca/ Oppose DMCA in Canada! (C) reform process.... http://russell.flora.org/drafts/copyright-2001.html My submission... -- For (un)subscription information, posting guidelines and links to other related sites please see http://www.flora.org/dmca/
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