Why am I opposed to the upcoming Copyright bill even before I have seen it?

Note: This article includes my summary of the 1996 WIPO Internet treaties.

It has been interesting to watch the membership of the Fair Copyright for Canada facebook group grow, as well as the questions to the Minister of Industry posted to the website for CBC's Search Engine. There is an obvious question that people ask, which is why we are opposed to a Copyright bill that hasn't even been tabled yet, and that anyone who has seen it is unable to talk about until it is tabled.

For me it comes down to a statement made to me by staff of Honourable Josée Verner, the current Heritage Minister.

The Government of Canada, led by the Minister of Industry and the Minister of Canadian Heritage, Status of Women and Official Languages, is working toward bringing Canadian copyright policy into conformity with the World Intellectual Property Organization Internet Treaties.

I don't need to see the act to know that it will be harmful to the interests of most creators and other Canadians. The speculation is really a matter of whether the bill will be bad or worse, not whether it can be good.

In order to understand the opposition we need to look more closely at the 2 WIPO treaties created in 1996: the WIPO Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT).

Given these treaties were authored more than a decade ago, and have already been implemented in a number of countries, there is no shortage of material written about them. In fact, one of the problems is that there has been too much written about them.

When Canada started a consultation on implementing these treaties in June, 2001, one of the first books I read was Jessica Litman's book "Digital Copyright". The website for the book is Digital-Copyright.com, and the similarity to the Digital-Copyright.ca name is not a coincidence.

This book is the journey in the United States from 1993 and the Bruce Lehman Working Group, through the policy-laundering of their harmful ideas through WIPO in 1996, to the passage of the USA's Digital Millennium Copyright Act (DMCA) in 1998. This is likely the best book to understand how the USA got their DMCA, and by extension why this harmful policy is now being pushed into Canada. It should be noted that even Bruce Lehman has stated publicly that his Clinton-era policies didn't work out well.

Probably the best resource for understanding how the DMCA has harmed (and continues to harm) the United States is to read the DMCA archives of the Electronic Frontier Foundation. This includes the paper Unintended Consequences: Seven Years under the DMCA from April, 2006.

The DMCA is broadly composed of two parts: Ratification of the WIPO Internet treaties, and ISP liability (the so-called Notice and Take-down regime, more appropriately called "Claim and Censor" given how it has been abused). Given the Canadian government has only disclosed WIPO Internet treaty implementation, we can focus on these issues in the short term.

As you read this analysis, think of the interests of creators, and not just your interests as an audience for creativity. While this treaty is alleged to have been created with their interests in mind, I see nothing in these treaties that have a beneficial effect to them. In fact, the beneficiaries of these treaties are primarily intermediaries (monopolist hardware/software companies, collective societies, etc) and not individual creators. It is as an independent software author interested in helping fellow independent creators of any type of creativity that I am opposed to these treaties, not as an audience for the creativity of others.

There are some individual creators who support these treaties. This is partly because they may have a different interpretation of the treaties (possibly promoted by some industry association), and partly because some creators that were successful in the pre-digital era are frightened by the changes that digital technology is bringing. We need to continue to reach out to those creators who are frightened by change, and help them to understand how creators have always benefit from new technology after a transition. While composers opposed devices which allowed people to record music (player pianos, "talking machines"), the market for the creativity of composers increased with recording devices -- not decreased as they feared and predicted at the time. Had music composers of the day been successful in convincing government to outlaw the recording industry, we could never have had the highly successful music industry we see today.

While providing a summary of the controversies in the WIPO treaties is hard given how complex and confusing they are, I will try to provide highlights. I hope that I am not over-simplifying treaties where some of the paragraphs have had shelves of books written about how different people have entirely incompatible interpretations of them and their intended and unintended consequences.

The WIPO Performances and Phonograms Treaty (WPPT) can be seen as a specialized version of the WIPO Copyright Treaty (WCT) focused on the music industry. Given most of the issues are the same, I will focus on the WCT. To keep this article a reasonable size (it is already huge ;-), it is left as an exercise for people to look over the WPPT and compare.

Article 1: Relation to the Berne Convention

This treaty is built upon the Berne convention. It is useful as a side-note that while Canada ratified the Berne convention in 1928, the United States only joined this treaty in 1989. We can call them a "Berne Again" copyright country, pushing a vision that is new to them on countries with far more experience.

Article 2: Scope of Copyright Protection

"Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."

Pretty normal stuff., and is already the case in Canadian law.

Article 3: Application of Articles 2 to 6 of the Berne Convention

The term mutatis mutandis isn't one we use every day. This article clarifies how copyright will apply to foreign copyright holders.

Article 4: Computer Programs

This article doesn't affect Canada given software is already considered a literary work, in any form (human readable source code or obfuscated binary file).

Article 5: Compilations of Data (Databases)

Canada already offers copyright to compilations.

Article 6: Right of Distribution

This is where the confusion really begins. This article can be interpreted to clarify that the author of an unpublished work is protected against someone else making copies available before the copyright holder wanted them to be. This seems reasonable.

This can also become part of the confusion around Peer-to-Peer where some industry associations want the existence of filenames in a "shared" folder to be sufficient to claim copyright infringement. We need to ensure that it is the contents of files actually able to be distributed that are required for evidence of infringement, not filenames that could point to files with any type of contents.

Article 7: Right of Rental

This states that copyright holders of software, cinematographic works (movies/television) and works embodied in phonograms (recorded music) have a right to refuse permission for rentals. This already applies to computer software and music in Canada (which is why you don't see much software or music rental), and this would extend this restriction to movies. If the movie industry ever decides it doesn't like movie rental shops, or wants to create their own rental regime that wouldn't have competition, they would then have the ability to shut existing movie rental companies down.

Article 8: Right of Communication to the Public

This article has similar problems to article 6.

A useful interpretation is as a clarification for on-demand communication to the public. Our existing "communication to the public by telecommunications" was created for broadcast radio and television. The sender of the communication decides when things are communicated. With the world of on-demand we need to clarify who is liable when it is the recipient that decides the timing of the transfer rather than the sender.

The correct thing to do is to have the sender liable for any infringement, regardless of who initiates the communication, and to not be dependant on all recipients receiving the communication at the same time. The recipients shouldn't be liable as they can't control what they receive based on a request, only the sender can. It would be useful if this enhancement were made to Canadian copyright law, separate from (and hopefully instead of) treaty implimentation.

The harmful interpretation from article 6 also applies, where some industries are trying to make this into a way to sue people without requiring the actual contents of a communications as evidence of infringing activity. Filenames in a list can never be allowed to be claimed to be "evidence", only the actual contents of files sent as a response to a request.

Article 9: Duration of the Protection of Photographic Works

Berne said that copyright for photographs could be different than for other works, as long as it had a minimum of 25 years. Current Canadian copyright act has a few provisions relating to the term of photography, with the general case being life of the (often unknowable) photographer plus 50 years. There were necessary exceptions, such as being a fixed 50 years where the first holder of copyright was a corporation since corporations do not "die".

Many people believe that copyright is already far too long for modern times (should be reduced), and also believe that fixed terms of copyright (removing the "life+" part) would simplify copyright and make it far more clear when things can be culturally recycled. This problem with clarity around the expiry of copyright is especially true of photography and recordings where the photographer/maker are most often unknown and/or unknowable, but that the date the photo was taken or the recording made can be determined by the subject matter.

Article 10: Limitations and Exceptions

Any limitations to copyright (Fair Use, etc) should not "conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author".

This is a very controversial section given it has been been interpreted as causing a ratchet effect that can only tighten copyright in favour of past copyright holders (and against the interests of new creator and audiences). While it is very easy to add new restrictions on creativity that require permission from copyright holders, this type of clause makes it very hard to remove them.

Similar clauses already exist in other trade agreements that Canada has already ratified (TRIPS, etc). So while this policy is a bad idea, including it also in this treaty is not expected to impact Canada.

Article 11: Obligations concerning Technological Measures

This is by far the most controversial article, and obligates countries to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures".

The problem isn't the wording of the article, which requires that the measures "are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."

The problem is that the article has been used to justify policy which prohibits activities not connected with the exercise of copyright (IE: rights under this treaty or Berne), and to restrict acts which are otherwise permitted by law (IE: limits to copyright such as Fair Dealings, the limited term of Copyright, removal of foreign locks off devices we own, removal of foreign locks off content we have legally acquired, etc).

Much of the confusion comes because the people passing and interpreting these articles are not technical people, and don't really understand what is and is not possible with technical measures, or what measures are used by existing and potential "DRM" systems.

Bill C-60 tried to minimize the harm of this article by tieing anti-circumvention to the infringement of copyright, as is suggested by the article (but was not done in the USA's DMCA). The problem is that this was premised on an understanding of TPMs being applied to copyrighted content, rather than the reality which is that TPMs are primarily being applied to devices to lock their owners from being able to control these devices.

The general thinking behind this policy is simple: if new communications technology could be abused to infringe copyright, then private citizens should not be allowed to own and control these technologies. This policy can be seen as a thin edge of the wedge for other policies such as the "Broadcast Flag" which seek to mandate devices lock out their owners, where the content doesn't need to be locked down at all.

We as Canadians need to reject this policy direction outright, not ratify these two treaties, and not provide legal protection for any technical measure which tie the access of content to specific devices (DRM applied to content). Copyright holders should not be legally protected in any attempt to leverage their copyright monopoly to dictate brands of technology. We must further legally prohibit locks applied by third parties to devices without the clear informed consent of the owner of the device, and treat these foreign locks as a circumvention of technology property rights.

There isn't anything in the language of this article that suggests Canada should protect or legalize foreign TPMs applied to devices, or TPMs applied to content that tie access to specific brands of devices. Unfortunately this article and the term "anti-circumvention" has become synonymous in the minds of policy people with these harmful abuses of TPMs.

If Canada adopted legislation that did not legally protect these abuses, but ratified the treaties, countries like the United States could come after us in trade tribunals claiming that we didn't fulfill our obligations. It is not good enough that Canada has a rational interpretation of this treaty: we need our trading partners and trade tribunals to as well.

Some further discussion of this issue can be seen in the documentation for our Petition to protect Information Technology property rights.

Article 12: Obligations concerning Rights Management Information

This article also has incompatible interpretations depending on who is reading it.

One interpretation is to ensure that information about digital content (so-called "tombstone data", or "metadata") can not be changed without the permission of the copyright holder. The technical community looking at this article will have no problem with it, given it makes clear that it relates to static information about the content, and that it only applies when the content is publicly communicated or distributed (IE: private modifications in ones home such as format conversions are not a problem).

The problem is that many people in the legal community have interpreted this as disallowing private modifications in the home (format conversions), and to also legally protect data collected on private uses of content (IE: how many times content is access, by who, etc). While this use information was understood by the technical community as a harmful consequence of TPMs applied to devices (IE: part of Article 11), many people in the legal and policy making community have understood this issue entirely different.

(Note: Most people can skip the rest, except article 22, given the rest are largely administrative in nature)

Article 13: Application in Time

This references article 18 of Berne which talks about transition issues. If a work is already in the public domain before this treaty was ratified, it remains in the public domain, and other similar issues. It does allow the term of copyright to be retroactively extended to people who have already died (and thus clearly can't be motivated by the larger copyright term to create more).

It is part of the ratchet effect discussed above.

Article 14: Provisions on Enforcement of Rights

Simple stuff: countries need to pass laws as necessary in their country, and to ensure that they are enforceable.

Article 15: Assembly

Parties to the treaty will have an assembly and meet to discuss the progress of the treaty.

Article 16: International Bureau

There will be a bureau to do administrative tasks

Article 17: Eligibility for Becoming Party to the Treaty

Who can become a party to the treaty (Any country, including the European Union as a single entity)

Article 18: Rights and Obligations under the Treaty

Self explanatory -- once you have become a contracting party (ratified), you have obligations under the treaty.

Article 19: Signature of the Treaty

They had a historical, and no longer relevant, cut-off for signing the treaty.

Article 20: Entry into Force of the Treaty

After 30 countries ratified, the treaty came into force. With the US-lead "Coalition of the Billing, the Treaty entered into force on March 6, 2002.

Article 21: Effective Date of Becoming Party to the Treaty

More timing details, not all that relevant to most of us.

Article 22: No Reservations to the Treaty

This treaty requires we accept every article, or don't ratify. As an example, Canada can't ratify the treaty and exclude article 11 (TPMs).

This is important to understand. This means that if there is any aspect of the treaty we can't live with (and I believe there are several), then our only answer can be to reject treaty ratification. Canada can and should implement good ideas from these treaties, so it is quite possible to have WCT/WPPT concepts improve Canadian copyright law without Canada ratifying them.

Article 23: Denunciation of the Treaty

Contracting parties can get out of this treaty one year after notifying the Director General of WIPO. While this escape clause seems great, it is highly unlikely to ever be used unless there is agreement with Canada's trade partners. Given Canada's largest trade partner remains the United States, this is an obvious problem.

Article 24: Languages of the Treaty

"This Treaty is signed in a single original in English, Arabic, Chinese, French, Russian and Spanish languages, the versions in all these languages being equally authentic."

Article 25: : Depositary

"The Director General of WIPO is the depositary of this Treaty." Someone has to be said to have the official copy...