Protecting Creators' Rights in the Digital Age -- letter to the CRA.

The Creators' Rights Alliance sends out a monthly news briefing. In the November issue (#31) there was a report from the conference entitled Copyright Reform in Canada: Meeting the Challenges of the Digital Age held at the Old Mill in Toronto in September 15-16.

I sent the following letter as a reply to that section of their briefing.

I suspect the conference was not as biased as reported. I will add my own comments to the two areas discussed to offer some balance.

Technical measures

Legal protection for Technical Measures is appropriately known as "Paracopyright" (See: ). While technical measures are used by copyright holders, so are cars, money, computers and musical instruments. Technical measures have no more a place in Copyright law than the Bank Act.

Copyright law regulates creation/distribution of copies, communication to the public, performance, etc. Copyright does not regulate "access", but the activities of people who already have access. Technical measures can limit access, and can indicate identity and authenticity. Limiting access to only those who agree to conform to specific licensing/contractual terms is an issue of contract law, not copyright. While authenticity is useful for protecting moral rights, that is about as close "technical measures" directly get to the substance of Copyright law.

Technical measures are used by copyright holders to encode, and enforce in software, specific licensing/contractual terms. This must be understood as a part of contract law. Contract law has all the proper balance to protect not only valid contracts, but protect consumers from invalid contracts. The controversy around "technical measures" would not exist if they were understood in a contract law context rather than inappropriately in the unrelated Copyright Law context.

ISP Liability

There is always a false presumption that the only people who would use an ISP "notice" systems are valid copyright holders notifying an ISP about a valid copyright violation. The fact is that a notice system can be as easily abused to harm the interests of authors as unauthorized P2P systems can be, with people who are not copyright holders making accusations about activities which are not copyright violations.

The "notice and take down" is better understood as a "claim and censor" system. Given the complexities of copyright is is clear that any system which involves a take-down of information requires judicial oversight. Any lower level of protection from invalid notices should be seen as opening up Canadians to violations of our communications, cultural and creators' rights.

Those "trading partners" who have lower standards for protection from invalid notices than proposed by Canada have experienced many problems. Automated "bots" have been used by (as one court slipped and appropriately called "anti-privacy") companies like MediaSentry that sends notices to people hosting competing software. One example I read included mirrors of the Free/Libre and Open Source Software called being falsely claimed to be infringing the copyright of Microsoft Office.

It is clear that a "notice and take-down" or "notice and terminate" system are not intended to protect the rights of authors, but to protect the current market position of incumbent major labels, major studios, and "software manufacturing" monopolies from competition. They wish to increase the number of false-positives and have competing music, movies and software more easily removed from legitimate distribution sites.

Thank you for the clarification later in the briefing about CIPPIC and

The clarification I mentioned related to a previous letter to CRA Briefings #29 (HTML version from Google) which under the title "AMENDMENTS TO THE COPYRIGHT ACT TABLED IN PARLIAMENT" said that "Some user groups are concerned that the WIPO amendments will damage the rights of users".

I suggested that, " is an unbiased law clinic that deals with all sides of the issue, and is a citizens forum primarily made up of people who are from the next generation of creators. They are not as this bulletin claims 'user groups'."