Crystal Ball Gazing At The Coming Year in Tech Law

Michael Geist writes:

Predicting the future of Canadian technology law is challenging at the best of times, but during an election campaign prognostications are admittedly likely to be about as accurate as a coin flip. With that caveat in mind, my weekly Law Bytes column (Toronto Star version, freely available version) offers up likely developments in the coming year gleaned from a pair of crystal balls - one that assesses what Canada needs and the other what we are likely to get.  The column focuses on six issues: Supreme Court activity, the CRTC, privacy, copyright, Internet concerns, and international developments.

I'll add a few more items to the "what we need" vs "what we will get":

What we need: In order for copyright to benefit creators and users, meaning those without a team of lawyers such as the incumbent intermediary industry associations that control the debate, it must be radically simplified. This includes simplifying the term of copyright, which is the cultural recycling date critical for the next generation of creators who build on the past. We need to move to fixed terms that are not tied to the author in any way for types of creativity where the author (the relevant information -- not the copyright holder) is not easily determined from the work. This could mean we have life+ term for for books with the author in the front cover, but retain fixed terms for most other types of works from recorded music to photographs. We need to simplify the term for large collaborative works such that all parts of the work (such as a movie) expire at an easy to determine time that doesn't require intimate knowledge of the production process or who the longest living participant might be. In a world where people believe the rights of copyright holders should be harmonized, this would mean fixed terms for everyone.

What we will get: We have already seen the extremists in the incumbent recording industry and photographer groups who have successfully lobbied the government to obscure the cultural recycling date in Bill C-60. Whether policy makers will wake up to the massive harm of this policy has yet to be seen.

What we need: Canadian software authors need a protected right to reverse engineer existing software for compatibility with other software, and for security research. Many of our trading partners have a "fair use" regime which has better protected these necessary practises, sometimes clearly not offering any statutory monopoly for "interfaces" at all.

What we will get: Legal protection for technical measures will be pushed by the special interest groups and uninformed governments. As we have seen many times in the USA, mislabelled "anti circumvention" laws will be abused to circumvent privacy, competition, contract, trade and other laws, as well as attack computer security. This is inevitable given computer security and "Digital Rights Management" (DRM - AKA: technical measures, TM, TPM) have the opposite goals: computer security protects the owners from third parties, and DRM protects third parties from the owner of the computer.

What we need: Canada needs to modernize government processes (acquisition, publishing, etc) such that software and other knowledge that the government acquires, uses and distributes can benefit from a full spectrum of methods of production, distribution and funding. This would clear up existing acquisition problems where it is harder to get Free/Libre and Open Source Software into government than it is get "software manufacturing" software. This would include re-evaluating Crown Copyright and "cost recovery" for government knowledge, possibly opening things up to the public like our larger trade partners which don't have crown copyright and can leverage the wider economic benefits from this.

What we will get: The government will continue towards its "Common and Shared Services Strategy" , using this as an excuse to bypass existing pro-competition policies and further impose specific "software manufacturing" brand choices onto all government computers. The government will ignore the calls for review of crown copyright, likely making Canadian government knowledge more expensive (and thus less useful from a public policy point of view) than it has been in the past.