Digital Copyright Canada

I highly recommend anyone interested enough in Canadian Copyright to be reading this blog to grab and read a copy of Canadian Copyright: A Citizen's Guide. The following are some things I was thinking about while reading the book, and wanted to comment on.

Page 18:

The same double exclusion mechanism could be layered onto TPMS, even though there are many legitimate reasons to defeat a TPM: making a backup copy of a computer program, for example, or accessing public domain content (see chapter 9)

This reference to TPMS has the common distraction that I worry quite a bit about. As our petition notes, TPMS can be applied to both content and devices. While nearly all references in the book to TPMS are those applied to content, most of the controversies are rooted in the TPMS applied to devices. I discussed this in the article Canadian Copyright: Chapter 9.5 - dissecting Digital Rights Management.

When we analyze the TPMS applied to devices, we get a much large list of legitimate reasons to defeat them, such as the basic ability to secure our own computers from unauthorized intrusions.

Page 48:

A growing number of people simply don't want to assert all the rights that copyright automatically grants them. If this is how you feel, you can register your work with Creative Commons (www.creativecommons.ca) instead of the Copyright Office

Creative Commons is not a registration system, but a licensing system. This makes it an alternative to collective licensing or other licensing schemes where permission is granted in exchange for royalty payment, not for the registration services of the Copyright Office.

Creative Commons licenses are simply a way to grant royalty-free permission for someone to do things in the copyright bundle of rights that would otherwise need permission, and to do these things in easily understandable situations.

P 59:

In recent years, computer code has produced the main question about translation rights. Is it a translation within the meaning of the translation right to rewrite a computer program in a different programming language? In Apple Computer v. Mackintosh Computer (1986) the federal trial court held that conversion from one code to another did not constitute a translation. But in another case, Prism Hospital Software v. Hospital Medical Records Institute(1994), a B.C. court rules that the conversion of a program into a different programming language did constitute a translation. There still seems to be quite a bit of uncertainty in this area.

This uncertainty is greater than what has been described in these quite old court cases. We are moving further into a world of virtual machines where entire programs written for one platform are run on another. Is it the "machine" that is being "translated", or is it the software? Many of these types of questions can only really be answered by drawing a big "no copyright zone" around activities which are not public in nature: if a work is not publicly communicated, distributed, performed, exhibited, etc then copyright should not be involved.

We also need to have independent economic analysis of software enter into the debate. Many of the debates around this issue flow directly into the question of the patentability of software. While most independent economic analysis has suggested that competition and first mover advantage, not exclusive rights, is the greatest incentive for innovation in software, there are some business executives and lawyers that continue to claim that stronger exclusive rights are beneficial.

The process of reverse-engineering the design of an existing program and re-implementing in another language is not trivial. While it is valid to disallow copying of design documentation without authorization, creating ones own design documentation during clean-room reverse engineering and authoring new software should always be a legally protected activity in the software industry.

Unfortunately these questions have not been settled in copyright, and the government has put simplification and clarification of existing Copyright as a lower priority than additional radical changes which are even less clear as to their meaning (IE: See my analysis of the WIPO Copyright Treaty)

P 158:

Is downloading legal in Canada?
...
The question that remains somewhat unclear in Canadian law is whether putting a file in a shared directory ("uploading") constitutes authorization to reproduce it.
...

This is one of the confusions that happens when lawyers start to use technical terms without understanding how they are commonly used.

The terms "uploading" and "downloading" are used to describe the contents of a file being sent from one computer to another. The sender is "uploading" while the recipient is "downloading".

It is possible that very different situations have been merged together. For instance, if you are the webmaster for a website hosted in a large hosting facility, in order to make a file able to be received from your website you must first send a copy to your web server. You would be "uploading" from your computer to the computer running the website.

But when the computer sending the file on-demand over the internet to public recipients is the same computer the file is already on, you wouldn't call it 'uploading' to simply make a copy of the file (or move it) into a directory of on-demand accessible files.

I think it would make the conversation make much more sense if lawyers simply avoided the use of the terms "upload" or "download" at all, and simply used the term "sender" and "receiver" for information communicated via telecommunications.

Then the question becomes: is a person authorizing the contents of a file to be "communicated to the public by telecommunications" if they configure their computer such that it will send the contents of a file to a recipient at a time chosen by the recipient? I think if the question is phrased this way, without the confusion added by using undefined terms like "upload", "download" and "shared directory", then the answer becomes far more obvious.

I think if the Supreme Court were asked this question they would then be able to clarify our existing copyright act such that the term "communication to the public by telecommunications" does not have to mean "simultaneous communication to all recipients".

I happen to believe that our existing copyright act, adequately clarified by the courts, already handles both on-demand communication to the public by telecommunications as well as a first publication right, which are the only useful meaning for the "Making Available" issue that the WIPO treaties reference.

The other thing confusing this issue is that the Recording Industry is averse to these activities being considered a "communication to the public by telecommunications" rather than the making of copies, given the act gives them more control over copies than communications. (See: Canadian Peer-to-peer (P2P) legal theories, proposals and questions) While composers and performers would likely benefit more from understanding these activities as communications, the labels would not. Like many issues this is yet another case where the interests of musicians (composers and performers) are being conflicted by key players in the recording industry.

P 163:

Until recently, all photographs had a copyright term of fifty years from the date they were taken. In 1999, on the rationale of making things fair for photographers, the act was changes so that photographs owned by "natural persons" had their term tied to the death of the author, like other works.

This concept of "harmonization" is most often utter nonsense. The identical words of the copyright act regulate different type of creativity in entirely different ways. While the recording industry is concerned about counting copies and making sure they are paid for each copy, a visual artist often doesn't make copies at all and needs to make their money from exhibition and resale royalties.

With a literary work the identity of the first author is most often included within the book, so that determining when this person died for the life+50 cultural recycling date becomes reasonable. With photography, sound recordings, performances and other such art, the author is most often not identified or identifiable. This is why for this type of creativity the copyright term should never be tied to the death of the author, but tied to the time the work was made. If harmonization is the justification, then the term of photography should be harmonized with sound recordings and motion pictures (fixed 50 years from first fixation, making, broadcast, etc) given photography has far more in common with sound recordings and motion pictures than it does literary works.

If I have had a photograph, music recording, or motion picture in my possession for over 50 years, or the subject matter makes clear that the event recorded happened more than 50 years ago, I should know that the work is in the public domain. I should not need to know who the first author was, who commissioned the work, or who was employing who more than 50 years ago.

If "harmonization" is itself a justification, and given tieing the term of copyright to the death of the unknowable author is unworkable in many situations, then it should be obvious that a harmonized copyright term must remove the "life+" aspect and be moved to a fixed 50 years from date of making/publication/etc.

P 171:

The galleries cite benefits to artists of such exposure, and new opportunities to license use of their work -- and they say furthermore that they can't afford to pay the fees expected by CARFAC. The two parties seem to be stuck in something of a stalemate.

The great news is that since the publication of this book, an agreement seems to have been made.

P 191:

Copyleft

I have the same worry about this section as I did with the paper done by Susan Crean and Virginia Jones. While it is critically important that this issue be included, I'm not so sure it can be considered an "alternative to copyright" rather than simply an "alternative to royalty-based business models". Copyright isn't only about royalty payments, and many of the conditions under which permission is granted have nothing to do with royalty payments, but still enable the copyright holder to receive material rewards.

If not read extremely carefully, it may also not adequately clarify that Free/Libre and Open Source Software (FLOSS) contains both copyleft and non-copyleft licensed software, and that the differences focus very specifically on the "share-alike" clauses. While the GNU General Public License is the most popular FLOSS license, and it is a Copyleft/Reciprocol/Share-alike style license, most of the alternative FLOSS licenses are not Copyleft in nature.

P 195:

Let's get our priorities straight. People create because they want to -- and they do this long before, and often long after, they are motivated by money. After we are sure that students have a sense of engagement with their cultural and intellectual heritage, and a sense of participation in its development, then we can tell them about copyright. Copyright has a place in cultural development, and its a secondary one.
...
Letting copyright govern our educational environments and places of creative experimentation might seem efficient, modern, and lucrative, but there is a powerful analogy to be made here with the hidden environmental costs of capitalism: we can pave over messy and apparently useless swamps, but sooner or later we may learn that the costs of doing so are far larger than the benefits.

This section clarifies that we need to ensure that creators make a living, but that we need to take alternative motivations for creativity into consideration and not push them out. I believe this is a critically important message, especially given many of the most contested areas of copyright (multimedia entertainment and software) have alternative methods of production, distribution and funding that could greatly reduce the tension that currently exists.

P 211:
Note 27 for chapter 2:

The act was amended in 1931, 1935, 1936, 1938, 1971, 1988, 1993, 1995, 1996, and 1997.

I will continue to research the history of changes to Copyright and update our chronology. What I would love to know how to access is the before-and-after versions of the Copyright act so that I could more easily compare. Far too often a bill will simply repeal a section of the Copyright act, and I've not yet figured out how to find out what it said before it was repealed.