As a followup to the meeting I had with Mr. McGuinty on November 15, I was asked to create a 1-page summary of my perspective. This is without the tables I used with the handout I gave to him at the meeting.
The following is what I came up with.
Recent advances in communications technology has drastically reduced the marginal cost (cost per additional unit) of production, reproduction and distribution of creativity. Peer-to-peer methods make the reproduction and distribution costs so close to zero to not be worth metering. This economic reality split the creative industries between the beneficiaries of established ways of doing businesses (incumbents), and those who wish to harness this change to use competitive and new methods of production, distribution and funding of their creativity (innovators).
Recognizing competitive threats, the incumbent content and "software manufacturing" industries more than a decade ago launched an offensive against these new technologies,. They lobby to increase the scope, term, and complexity of copyright, ensuring that only the larger corporations with teams of lawyers can participate. They emphasize the lowered financial cost of copyright infringement, using emotionally loaded terms such as "theft", to claim they are only protecting their copyright.
Bill C-60 favours the incumbents, ignoring the vast majority of Canadian creators who are competitors and not represented by the incumbents. The "Canadian" Recording Industry Association (CRIA), primarily comprised of US and European major labels, controls 95% of the market for recorded music with less than 2% of Canadian musicians signed. The statistical methods that CRIA (recorded music) and CAAST ("Software Manufacturing") use to estimate infringement do not adequately differentiate copyright infringement from competition. Independent studies suggest that the negative impacts of unauthorized sharing is minimal, if not helpful.
The Petition for Users Rights http://digital-copyright.ca/petition/ was signed by approximately 2400 Canadians so far. Petitioners represent a wide variety of Canadians, including innovative creators, audiences, educators, and librarians. Their views have thus far been ignored by the Government in the copyright revision process.
Where the majority of creators and other Canadians need copyright to be clarified and simplified so that it can be respected without a team of lawyers, Bill C-60 makes copyright more complex and uncertain. The new "making available" right is an example that does not replace, clarify or simplify existing rights, but adds yet another layer of complexity. The nature of this right is entirely unknown, even to the experts.
Where parliament sided with the incumbents who wanted to extend and/or obscure the term of copyright (examples of photography and recorded music), petitioners stated that "the creation of original works is nourished by wide accessibility of earlier works, including a vibrant public domain", further calling upon parliament "not to extend the term of copyright".
Where parliament sided with the incumbents claiming that new technologies enabled infringement, the petition states that "digital technologies have recently given copyright holders the ability to upset the balance in the Copyright Act by preventing Canadians from accessing works for purposes that have been legally granted to them". Petitioners further called on parliament to "recognise the right of citizens to personally control their own communication devices".
"Technical measures" used by copyright holders are incapable of protecting against the unauthorized activities of authorized audiences. They can protect specific (often hidden) contractual terms. These provisions, often called "paracopyright", are outside the traditional substance of copyright law. Bill C-60's "paracopyright" provisions may not be constitutional as they pertain to areas of provincial jurisdiction.
Contract law protects valid contracts as well as protecting consumers, competitors, and the public interest from unlawful or harmful contracts. Sony-BMG recently includes harmful malware ("RootKit" and "SpyWare") within their so-called "copy control" software on specific music CDs. This software circumvented the security of infected personal computers. This is proof that Canadian property holders, the owners of communications technologies, must be protected from unscrupulous copyright holders.
Stewart Baker, recently appointed as the Department of Homeland Security's assistant secretary for policy, said the following to the incumbents:
"It's very important to remember that it's your intellectual property -- it's not your computer. And in the pursuit of protection of intellectual property, it's important not to defeat or undermine the security measures that people need to adopt in these days.
The "notice and notice" regime for ISP liability is the only positive thing within C-60. The "takedown" regime proposed by the incumbents and the US government inadequately protects the charter rights of Canadians who must be protected from the unscrupulous use of notices. Studies of the "claim and censor" (AKA: "notice and takedown") regime used by the United States have indicated that approximately 1/3 of notices are invalid.