CIPPIC/PIAC responds to Bulte Report on Copyright Reform

CIPPIC responds to Bulte Report on Copyright Reform:
Together with the Public Interest Advocacy Centre (PIAC), CIPPIC issued a highly critical response
(PDF) to the Interim Report on Copyright Reform released by the House of Commons Standing Committee on Canadian Heritage last month. CIPPIC and PIAC state that the report ignores key evidence and submissions by public interest groups, and lacks reasoning for some key recommendations. They call for rejection of the report and for a more balanced approach to copyright reform in Canada.

Text version follows:

CIPPIC/PIAC Response

to the May 2004 Standing Committee on Canadian Heritage Interim Report on Copyright Reform

June 21, 2004

Background: Last year, the House of Commons Standing Committee on Canadian Heritage Committee (the Committee) was tasked with reviewing the operation and potential reform of the Copyright Act in light of the government's October 2002 report Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act (the "Section 92 Report"). It held hearings in late 2003 and early 2004.

In May 2004, the Committee, chaired by Liberal M.P. Sarmite D. Bulte, issued its Interim Report on Copyright Reform (the "Bulte Report"). The Bulte Report contains substantial recommendations for short-term copyright reform in Canada. The recommendations in the Bulte Report are highly controversial and contrary to the views of many copyright experts and those in the Canadian public interest community. The report closely reflects the positions of a few stakeholders and ignores most of the submissions and evidence put forward by public interest groups.

The Canadian Internet Policy and Public Interest Clinic (CIPPIC) and the Public Interest Advocacy Centre (PIAC) are organizations with public interest mandates. More information on each can be obtained from their websites at http://www.cippic.ca and http://www.piac.ca . Both organizations participated in the Committee hearings that led to the Bulte Report. During the June 2004 federal election campaign, CIPPIC posed questions to political parties on some of these issues; the questions and responses can be accessed at http://www.cippic.ca/election2004 .

The recommendations in the Bulte Report, along with CIPPIC's and PIAC's concerns, are set out below.

Bulte Report Recommendation 1: "The Committee recommends that the Government of Canada ratify the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) immediately."

CIPPIC/PIAC Concerns: Ratification of the WIPO treaties would require Canada to adopt much stronger copyright protection measures, including prohibiting the circumvention of technological protection measures used by copyright holders.

Through the use of legally protected technological protection measures, copyright owners stand to gain unprecedented control over the public's ability to access and use literary, musical, dramatic and other works in non-infringing ways. Public access to and use of works may become curtailed and largely fee-based. Copyright owners will also gain an unprecedented ability to invade individuals' privacy, including the ability to create, use and share highly detailed profiles of what users read, listen to and watch in the privacy of their own homes.

Librarians have also pointed out that the unrestricted use of technological protection measures (let alone legal protection of them) could cause cultural and scientific knowledge to be locked away forever, as technologies for accessing the protected data become obsolete. See http://www.copyright.gov/1201/comments/reply/034dillon.pdf

Laws similar to that recommended by the Bulte Report have proven to be highly problematic in the USA, both because they prevent entirely legal and desirable uses of copyrighted materials, and because they are being used by companies (e.g., Lexmark) to shut down competition for products that have nothing to do with copyright (e.g., printer cartridges, garage door openers). The USA is now having to backtrack and consider amendments to its anti-circumvention laws. See the CIPPIC backgrounder on the legal protection of technological measures at http://www.cippic.ca/technological-protection .

The Bulte Report appears to have recommended immediate ratification of the WIPO treaties in response to pressure from self-interested parties without undertaking any analysis of the implications for Canada of adopting anti-circumvention laws or a new "making available" right. Because these new laws would significantly expand the rights of copyright holders without any corresponding expansion of user rights, there is widespread concern that they would upset the balance between creators' and users' rights on which copyright is based. The Supreme Court of Canada recently affirmed the importance user rights in this balance in CCH Canadian Ltd. v. Law Society of Upper Canada.

Another concern with WIPO treaty ratification is that the treaty requirement of "national treatment" will force Canada to increase substantially the levies we currently pay on blank audio recording media, in order to compensate American as well as Canadian artists for the supposed effects of private copying. This concern, while raised before the Committee, appears to have been summarily dismissed. Evidence presented to the Committee on this point appears to have been ignored.

It is not clear why there is such a rush for Canada to ratify the WIPO treaties, how Canada would benefit from ratification, or what consequences Canada would suffer by not ratifying (at least until Canada has determined how and why it should ratify). The Bulte Report contains no analysis of these critical issues, and no rationale to support its recommendation that the treaties be ratified.

Canada should undertake a thorough and careful consideration of whether it is in the best interests of Canadians to ratify the WIPO treaties. Possible ratification of the WIPO treaties, including the form of the ratification, should only be considered after such an analysis is completed. Included in that analysis should be a consideration of the operation of similar laws in other countries.

Bulte Report Recommendation 2: "The Committee recommends that the Copyright Act be amended to grant photographers the same authorship right as other creators."

CIPPIC/PIAC Concerns: The Committee appears to have ignored submissions made by CIPPIC about why the default rule in the case of photographic and portrait works commissioned and paid for by consumers for personal and domestic purposes should give copyright to the consumer (the weaker party to the bargain) by default. As a repeat player, the artist/photographer is in a much better position than is the consumer to change the rule by contract. Default rules should favour contract-takers, since contract-makers can always change the default rule in their contracts.

The recommendation in the Bulte Report would mean, for example, that Canadian couples who hire a photographer to take photos of their wedding do not own copyright in their photos, unless they have negotiated such ownership with the photographer. This means that they would not be able to make copies of their photos or send them to friends. It would also mean that the photographer would have the right to copy and make use of the photos as the owner of copyright in them.

Canadian consumers who hire and pay for a photographer to take photos for personal or domestic purposes (e.g., a wedding or portrait) should, by default, own copyright in their photos. This default rule could also apply to other types of works commissioned for personal or domestic purposes. Photographers and other creators can always change this default rule by contract. The onus should be on the creator, not the consumer, to raise the issue of copyright in personal and domestic situations.

Bulte Report Recommendation 3: "The Committee recommends that the Copyright Act be amended to provide that Internet service providers (ISPs) can be subject to liability or copyrighted material on their facilities. The Committee notes, however, that ISPs should be exempt from liability if they act as true "intermediaries," without actual or constructive knowledge of the transmitted content, and where they meet certain prescribed conditions. ISPs should be required to comply with a "notice and takedown" scheme that is compliant with the Canadian Charter of Rights and Freedoms, with additional prescribed procedures to address other infringements."

CIPPIC/PIAC Concerns: Recommendation 3 suggests that Internet Service Providers (ISPs) should be subject to liability for copyrighted material on their facilities, unless they act merely as conduits for the material and comply with a "notice and takedown" regime under which they must remove allegedly infringing material after notice from the copyright holder.

This recommendation would put ISPs in the costly and difficult position of censoring content on the Internet on the basis of mere allegations by others. ISPs would pass on the costs of these new responsibilities to their customers, thus increasing the cost of Internet access to the Canadian public. Moreover, perfectly legal material posted on the Internet could be forcibly removed, allowing copyright holders to shut down legitimate expression. Innocent citizens would effectively be treated as guilty and forced to defend themselves at significant cost or to give up their right to free speech.

The risk inherent in this kind of approach is that in an attempt to avoid liability, ISPs will simply remove content every time they receive a notice of any kind (whether justified or not) from a copyright holder. In fact, the Bulte Report recommendation encourages ISPs to remove content by promising them immunity if they do. Once the content is removed, it is questionable whether the ISP or affected subscriber will challenge the validity of the allegations in court, given the cost of doing so. Hence, the recommendation would have a negative effect on freedom of expression in this country.

As a general principle, ISPs should not be liable for infringement of copyrighted material on their facilities where they act as mere conduits. Just as would be required for any non-copyright dispute, a court order should be required before any ISP is obliged to remove content at the request of a copyright owner. There is no reason to provide special rights and treatment to copyright owners. ISPs should only face potential liability if they fail to comply with a valid court order to remove content or where they deliberately collaborated in an infringement.

Instead, Canadian law should reflect the "notice and notice" approach currently taken by Canadian ISPs, rather than the "notice and takedown" approach taken in the USA. Under the "notice and notice" approach, when an ISP receives a notice from a copyright holder, the ISP gives notice to its affected customer, and confirms to the copyright holder that the notice was given. The dispute is thus left as a matter between the copyright holder and the affected customer, except where the ISP is required by court order to take other action.

Bulte Report Recommendations 4 & 5: "The Committee recommends that the Government of Canada amend the Copyright Act to allow for extended licensing of Internet material used for educational purposes. Such a licensing regime must recognize that the collective should not apply a fee to publicly available material (as defined in Recommendation 5 of this report)" AND "The Committee recommends that publicly available material be defined as material that is available on public Internet sites (sites that do not require subscriptions or passwords and for which there is no associated fee or technological protection measures which restrict access or use) and is accompanied by notice from the copyright owner explicitly consenting that the material can be used without prior payment or permission."

CIPPIC/PIAC Concerns: Recommendations 4 and 5 suggest that teachers should have to pay a licensing fee in order to reproduce for educational purposes material that is publicly available over the Internet, except where such material is accompanied by a notice from the copyright owner explicitly consenting to such reproduction, or where copying of the material is restricted by technological or other measures.

The Copyright Act already contains user rights provisions which state that using copyright materials for private study, criticism, review or research is permitted and is not an infringement of copyright. It is difficult to differentiate between those activities and the activities of teaching. Moreover, it can be argued that those who post material on the Internet without any copyright notice or technological restriction on copying are implicitly consenting to its reproduction by teachers and others.

Teachers and schools asked that the law be clarified to allow them to reproduce publicly available Internet material for use in the classroom. Instead, the Committee recommended that teachers should have to pay for freely available Internet material. This approach will result in either increased expense to educational institutions or reduced learning opportunities for students, despite the fact that much of what is available on the Internet is either in the public domain or is material for which the copyright owner does not expect to be compensated.

There is a strong public interest in facilitating educational use of Internet materials. In keeping with the Supreme Court's broad interpretation of user rights under the Copyright Act, educational use of unprotected and non-explicitly licensed material freely available on the Internet should not be treated as copyright infringement and should therefore not be subject to any remuneration scheme. Teachers should be permitted to reproduce and use material that is freely available on the Internet, without having to pay for it and without being afraid that they are infringing copyright.

See the May 31, 2004 Toronto Star article by Michael Geist on this point.

Bulte Report Recommendation 6: "The Committee recommends that the Government of Canada put in place a regime of extended collective licensing to ensure that educational institutions' use of information and communications technologies to deliver copyright protected works can be more efficiently licensed. Such a licensing regime must recognize that the collective should not apply a fee to publicly available material (as defined in Recommendation 5 of this report)."

CIPPIC/PIAC Concerns: Recommendation 6 suggests that teachers should have to pay a fee in order to deliver copyrighted materials over the Internet for distance learning applications. CIPPIC's concerns here are the same as for Recommendations 4 and 5.

Bulte Report Recommendation 7: "The Committee encourages the licensing of the electronic delivery of copyright protected material directly by rights holders to ensure the orderly and efficient electronic delivery of copyright material to library patrons for the purpose of research or private study. Where appropriate, the introduction of an extended collective licensing regime should also be considered."

CIPPIC/PIAC Concerns: Recommendation 7 suggests that libraries should have to pay a fee to rights holders in order to deliver copyrighted material to library patrons by electronic means, for the purpose of research or private study.

Research in Canada is currently inhibited by a prohibition against libraries providing patrons with a digital copy of material obtained electronically from another library via inter-library loan. Instead, the library must make a single print copy of the material for the patron. The rule is meant to prevent unauthorized distribution of the material by library patrons. It has the effect of putting Canadian researchers at a disadvantage to those in other jurisdictions where electronic delivery of copyrighted material is permitted.

Libraries should be permitted to deliver electronic copies of electronic materials to library patrons, without having to pay for the right to do so. Libraries should not have to pay for the right to distribute electronic copies of materials to patrons that they are permitted to distribute in hard-copy form for free. Increasing the cost of access to library materials by Canadians is not in the public interest.

Bulte Report Recommendations 8 & 9: "The Committee urges the Government of Canada to take immediate and decisive action on the issues raised in this report. The Committee is convinced that the modernization of Canadian copyright law is of the utmost importance; consequently, it sees it as essential that the federal government work in partnership with Parliament to ensure that all necessary legislative changes to the Copyright Act are made immediately" AND "The Committee recommends: (a) that a memorandum to cabinet incorporating the recommendations made in this interim report on copyright reform be ready for cabinet approval no later than 15 August 2004; and (b) that legislation to permit ratification of the WIPO treaties be introduced in the House of Commons by 15 November 2004."

CIPPIC/PIAC Concerns: The fact that the issues addressed by the Committee have been under consideration for a number of years is not reason in itself to put them on a fast track. There is good reason why these issues have been under consideration for years and why Canada been hesitant to ratify these treaties and expand copyright protection. Many public interest concerns have been raised. It is not clear how WIPO treaty ratification, or the other recommendations in this report, would benefit the Canadian national interest or the public interest more generally. The Committee hastily arrived at its conclusions in a matter of weeks and appears not to have considered the public interest perspectives presented to it.

The recommendations made in the Bulte Report call for sweeping fundamental changes to Canadian copyright law that reflect the positions of certain vested interests rather than the public interest. They ignore key evidence and submissions provided by public interest groups. They lack reasoning in some key respects. The Bulte report should be rejected and a more balanced approach to copyright reform adopted by the new government of Canada.

******

Contacts:

Philippa Lawson, Executive Director, CIPPIC

http://www.cippic.ca

tel: (613) 562-5800 x.2556

Sue Lott, Counsel, PIAC

http://www.piac.ca

tel: (613) 562-4002 x.23

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Sarmite says no DMCA regulation of tech in Canada !

After a few attempts to contact
Sarmite Bulte
about the Interim Report on Canadian Copyright Reform, I've
finally received a written answer.

"I am of the opinion that our proposals/recommendations in the Interim Report do not regulate technology.


In addition, I disagree that ratification of the WIPO treaty regulates technology."

IMHO this means no DMCA regulation for technology in Canada!

Take a look at the the user feed back during the Copyright Reform Process.

Over 700 submissions
all sorted by date and submitter.

Among the contributions who asked for specific legislation to ban circumvention technology
were,

the Canadian Independent Record Producers Association (CIPRA)
, which on page
page 4 requested

"With regard to technological protection measures, it is the view of CIRPA that
... it is vital that new legislation be put in place to address the ... problems
these devices cause ... copyright owners. In particular the effective defining and
legislation of tamper proof rights management systems..."

Since there will be no such regulation I believe Bulte and others have
the right idea.

AOL-TW Inc
also called for DMCA type regulation of technology,

(b) that legal protection against the circumvention of technological
protection measures be added to the law, whether contained within the
Copyright Act or linked to it; (c) that such protection extend to the
manufacture of and trafficking in circumvention devices and services, as
well as the act of circumvention;

Such DMCA type demands were completely dismissed by the Committee.

FWIW:
The September 4th 2001
submission from
"The Edifying Fellowship of Ook" is hilarious. I couldn't get past the first page with that funky old English font.

O, may this humble document meet the favour of the Departments and the
Sub-Departments and the Molluffs and the Tree-Sloths even unto the
fourteenth generation. ...

I'm usually 100% cynical, but the system seems responsive.. even to the eccentric.

IMHO the remaining problems with the other recommendations can be
massaged with a few more letters.

This is cross posted to a slashdot thread.

Different interpretation of Sarmite Bulte's words

As I wrote in a reply on SlashDot, I do not share this interpretation of Sarmite Bulte's words.


I was subjected to a speech from her at the Rethinking Copyright conference, and checked my interpretation with a number of other people there (some lawyers or law students, some other laypersons like myself). We all came to the same conclusion that she didn't understand technology law, and didn't separate many-to-many mediums of communication like the Internet to one-to-many broadcast media of the past.


Since you seem to have been able to reach her, try again with a few additional questions:

* Why did she not respond to the questions from the Canadian Internet Policy and Public Interest Clinic (CIPPIC)? If she wanted to prove her knowledge on technology law matters, it would seem extremely important for her to respond to the questions from a technology law clinic made up of law professors and law students specialized on technology
* Is she aware of commons-based peer production and peer distributions such as those discussed around Creative Commons and Free/Libre and Open Source Software?
* Has she read any of US law professor Lawrence Lessig's books on this topic, including and especially the most recent "Free Culture". Where does she agree and disagree with his understanding of technology law issues, given her recommendations reflect a very different belief system around technology law.
* Whether elected or not, will she be willing to talk to representatives of CIPPIC and participants in the Digital Copyright Canada forum to find out why we are so concerned? Why has she thus far seemed uninterested in our input?


Free/Libre and Open Source Software (FLOSS) consultant.

Sorry for the delay.. I'm just trying to figure this out.

I know she hasn't responded to CIPPIC's survey.. but then again she never
responded to my emails (just the hard copy). So I just believe that's
her policy. It sucks.. oh well.


I've taken a day to get back to this post because I'm ambivalent. There
are two interpretations, and I cannot figure out which is right.


She said she was not in favour of "regulation of technology".


I interpreted the quote with the belief "regulation of technology"
means "legal protection for DRM". (Concretely, Circumvention would be
legal. Case 1.)


But you pointed out that Bulte could just have a different interpretation
of "regulation of technology".


E.g. She may believe that "regulation of technology" means setting
certain specific standards for DRM. (Concretely, the gov't would make
circumvention illegal, but not say what DRM is to be used. Case 2.).


I thought I asked Bulte a straight forward question and I thought I got
exactly what I wanted to hear. Now I don't know what the hell is implied.


I'm going to have to go to her campaign office and get clarification.


When I read
Article
11 of the WCT
strictly
I have to say Case 2 is the only
interpretation possible. But I can equally convince myself that Case 1 is a possible interpretation.


I should do the sensible thing and shut up until I find out what is right.
But I'll throw caution to the wind and dream a bit, cause I desperately want to
believe Case 1.


First of all Article 11 of WCT does not say "Contracting Parties shall
provide legal protection and effective legal remedies against
the circumvention" it says " "Contracting Parties shall
provide adequate legal protection and effective legal remedies
against the circumvention". That's a loaded word.


Second criminalizing circumvention is a complex issue and I was surprised
there was no discussion of it in the Report. Recommendation 1 which
calls for ratifying the WCT and WPPT would have severe implications and
the discussion above the first recommendation only deals with trying to
reconcile the WPPT and the private copy regime.


Third grep 'circumvention' in the report and you get a paragraph above
recommendation 7, which quotes article 11, then tries to figure out
an adequate protection, neither involving criminalizing circumvention.
Rather the options presented are to grant more permissions or introduce
a license to compensate for copying.


In the first option presented the report makes a reference to "technological neutrality".
Which is also referred to in the
second paragraph
of the entire report, where it states "Canada's digital copyright framework ... should be technologically
neutral"
. T.Neutrality doesn't have any special meaning but is the segue to the document in which it is defined.

Consultation Paper on Digital Copyright Issues (98Kb pdf; see page 25). Now when I read this document I swear it was written by copyfighters.

In proceeding with this analysis, the status of such measures is worth reviewing. Copyright law itself protects rights holders
against unauthorized uses, while technological measures adopted by rights holders to ensure their rights serve to provide an additional
layer of protection for works. Any proposed statutory provisions to protect technological measures would be in effect a third layer
of protection, albeit one which relates not to works, per se, but to the technological measures in relation to works. In some
jurisdictions, such legal provisions protecting technological protection measures extend beyond copyright to include restrictions on
access and on the manufacture and distribution of circumvention devices. In other words, by providing legal recognition of the technological
measures, the traditional boundaries of copyright law would be extended to include new layers of protection. There is concern that the
Copyright Act may not be the proper instrument for protection measures that, prima facie, are extraneous to copyright principles.

The document starts off a discussion about circumvention. A discussion
which is completely absent in
the Bulte Report. If it was the gov'ts intention to give legal
protection to circumvention technology then one would expect a continuation
of the discussion with a resolution that it was required and to what extent
the protection would extend.


Instead we are left with a discussion which is surprisingly pro circumvention.

The departments have considered the possibility of restricting or prohibiting
the traffic in circumvention devices ... The difficulty is that devices
which are suited to infringing uses are, by and large, equally suited to
non-infringing uses. ... Perhaps the role of technological changes warrants
a careful study to examine what will be the dimensions of the intersection
of anti-circumvention measures with the current Act. (Page 28 of pdf).

Again a call for a larger discussion. While later on we get.

In certain cases with commercial motivations, where the scale of the circumvention
has consequences for the copyright sectors as a whole, there should be appropriate
criminal sanctions.

Well wasn't bill C-2 specifically such a bill? Where there was rampant abuse of
copyright the response was not to alter the copyright Act, but to introduce a specific
bill to deal with a specific problem. A blanket ban on all circumvention is a blunt instrument,
and was not used.


Furthermore Page 9 says

"whether or not: ... legislative measures are needed to deter the circumvention
of technological measures that are used by rights holder to protect their rights;"

The discussion paper questions whether the strict interpretation of WCT
Article 11 should even be followed.


I'm likely reading a bit too much into a discussion paper, after all it is meant
to bring up discussion so it may have specifically gone further (more liberal) than
gov't policy simply to see what arguments industry and others could make against
such views.


So back to the Bulte report. What does it say, ratify WCT. What did Bulte say

"I am of the opinion that our proposals/recommendations in the Interim Report do not regulate technology.


In addition, I disagree that ratification of the WIPO treaty regulates technology."

This can be either Case 1 or Case 2. I've laid out why I think it is Case 1. I sure as hell hope it isn't Case 2.


If Case 1 is correct then why the hell didn't she, as a Toronto MP, clarify the issue when it is being brought up repeatedly on Mondays in the Toronto Star collumn of Michael Geist? Something is really odd.

Additional data point to help decipher Bulte response

While I have not been invited to a Heritage Committee meeting, or spoken with individual MPs from that Committee, I have had many meetings with the people at Heritage Canada, Copyright Policy Branch. I have gone in to discuss my submissions to the 2001 consultations, did a demonstration of Linux and OpenOffice.org for them. Most recently was hired to do a half-day workshop on Technological Protection Measures.

Technical people assume far too quickly that when bureaucrats and politicians use phrases like "regulation of technology" or "technological neutrality" that they mean the same thing as we would. If you watch many of the government discussions about Free/Libre and Open Source Software you will find bureaucrats and representatives parroting Microsoft claiming that any laws that favor FLOSS methodologies are not "technologically neutral". The problem is that FLOSS is a methodology, not a technology. Requiring FLOSS is no more a technology decision than having access to information laws in a democracy is. What Microsoft is pushing is a vendor and a business model (monopoly rent seeking, "Software manufacturing"), and is also not a technology.

I have found it frustrating that most candidates and parties seem to be ignoring IT issues during this election. Even when IT issues are promoted in campaigns, the candidates don't even realize they are IT issues.

The Gun registry isn't a failed government program, it is a failed IT project. The Auditor Generals report mentioned the sponsorship program in chapter 3, but chapter 1 was GOL (Government On-Line) which in my estimation represented a considerably larger amount of government waste.

ICT and PCT (Patents, Copyrights and Trademark) policy affect most of the major issues in the election, and yet few candidates understand the issues well enough to realize this.


Free/Libre and Open Source Software (FLOSS) consultant.

Tried to contact Bulte.

I went to the campaign office, armed with the cippic questions and
seeking a clarification of "regulation of technology". Of course she was
not there, and the volunteers were not in a position to offer clarification.


I know a written letter will not get answered this close before the election,
especially since she has already spent a bit of time answering my previous
letter and answering my questions at all candidates meetings.


With this in mind, I'll let "Case 1" be the dominant meme in my mind.
If Michael Geist cares to figure out which one is true for his Monday column
then I'll let him do the leg work.


While at Bulte's campaign office I was greeted by a dog and the two people present. Along one of the walls were two 3-foot-tall stacks of
horizontally piled lawn signs.
I guess the demand for lawn signs has dropped significantly since the last
election.


Now, I'm sure Peggy Nash will be the new MP for P-HP, likely because of the bridge
and the cities agenda. Which is great for those issues but horrible for
copyright since

"the NDP's tech policies are rotten"
.