Copyright related policy discussion for 2010

(This article originally posted to CLUE's blog)

For New Years eve I thought I would be useful to visit our Copyright-related Policy summary in the context of events in 2010. After a summary I will offer some suggestions of what people should do in the coming year to protect our rights and interests.

The Conservative government tabled a copyright Bill C-32 on June 2 which was debated and then passed at second reading on November 5'th. It was sent to a special legislative committee that held 8 meetings before parliament was adjourned until Monday, January 31, 2011. Being passed at second reading doesn't make it law, and there are many more stages for this bill to follow.

To help policy makers and other Canadians understand the issues, I authored a Bill C-32 FAQ which goes into quite a bit more detail than I will here.

In our Copyright-related Policy summary I highlighted some primary copyright related concerns:

  • We disagree with the legalization or legal protection of techniques used by copyright holders to encode their content such that it can only be accessed with "authorized" technology brands.
  • We disagree with the legalization or legal protection of techniques used by device manufacturers to lock down devices such that their owners are considered attackers, where someone other than the owner controls the keys, or where owners are otherwise not able to control their technology for lawful or make their own software choices. Hardware owners must be able to make their own software choices, in order to chose our software.
  • We disagree with government promotion or mandating of royalty-based business models over fixed-cost based models used in peer production and peer distribution such as FLOSS.

The first two are embedded within C-32 under the title of "technological protection measures" (TPMs), and the last concern comes in the form of various levies which are being proposed as possible amendments to the bill. While TPMs are the greatest concern to us, the debate at second reading and the meetings of the legislative committee focused on two levy proposals: levies on devices and educational levies. These levies were discussed almost to exclusion of any other issue during the hearings so far.

Technological Protection Measures

This must always be our primary focus. Over any other issue in copyright we need technology owners to be able to make their own software choices. If they can't make their own software choices, how can they possibly choose our software?

The first concern listed above is incorporated in C-32 in the form of "access control" TPMs which limits access to encoded content to those devices or software which have the right "unlocking" (decryption) key. We of course know that anything where the owner has control, one of the effects of software being FLOSS, will never receive decryption keys. The whole point of this "access control" is to disallow access using technology where the owner has control.

The second concern listed above is incorporated in C-32 in the form of what the lawyers call "use controls", even if the lawyers are unaware of this. Technically advanced people know that content alone cannot make decisions, and thus any control over specific uses of content within a device is encoded in software running on hardware. In order for a third party to control these uses it requires that the operator of the device specifically have their control revoked.

The problem is that the lawmakers and lawyers debating this issue are not technologically advanced, and are debating about something that is far closer to science fiction than science. I believe that if they understood the technology in question, and then thought about how best to regulate these technologies, they would come to the same conclusions I have. I believe that technical measures should be regulated in the appropriate law: if a TPM is protecting a contractual relationship, then the protection must be in contract law. It turns out that what TPMs can protect and what copyright regulates are disjoint, and thus legal protection for TPMs should never be in federal copyright law.

Mandatory royalty-based business models

There are quite a few policies being proposed as amendments to C-32, each with a similar theme: some collective society wishes to replace copyright with a levy. While these proposals benefit the collective societies in that they can extract a percentage of any money flowing through them, these proposals are generally bad for both copyright holders and their audiences/users. These mandatory systems remove the ability of copyright holders and their customers to explore new business models, which is key in the changing marketplace to creators receiving the best material rewards for their creativity.

Collective societies provide a financial service which is an important option for those creators who wish to chose those services, but they should never be confused as representing creators. A collective society doesn't represent creators any more than bank managers can claim to represent all the political views of Canadians simply because some use their financial services.

Each proposal has its own political context.

Extension of existing private copying regime to devices

I believe this is a hard one for our community as it forces us to recognize priorities.

As a community most of us are opposed opposed to a system which makes technology more expensive, and that subsidizes unrelated business interests. When the Conservative party held a press conference in Ottawa's Rideau Center and then later launched a radio ad, many in our community were cheering.

While it seems that the Conservatives are on our side, the policies that are in C-32 say something quite different. Each of the reasons party representative gave for opposing a levy on devices applies far more to non-owner locks on devices than it does to the levy. The damage caused by non-owner locks to the Canadian technology sector and the interests of Canadian technology owners is orders of magnitude worse than the harm of the levy.

We need to recognize that even if we agree with the Conservatives about the levy, we must ensure that Conservatives recognize that the existing policy in C-32 is far worse.

Extension of private copying regime to other copyright holders

The self-called Creators Copyright Coalition, and their member organizations, have continued to push for an extension of the existing private copying levy to cover every type of work covered by the Copyright Act, rather than only recorded music.

I have stated that I consider the existing regime a failure. This regime mixes together compensation for purely private activities which would be unregulated by copyright in the US under their flexible fair use regime, with a small number of public activities which should be compensated. While it covers activities most Canadians believe shouldn’t be compensated, most Canadians also believe it covers public activities like unauthorized P2P filesharing which it does not.

These misunderstandings can not be blamed on average Canadians, as government officials including past Heritage Ministers have misunderstood the regime and the state of current law as well. The way that politicians talk about this levy system misinforms Canadians.

Misunderstandings about the regime, combined with those few who understand the regime being upset, induces people to infringe more. Overall I believe this regime has taken far more money out of the pockets of Canadian creators than it has sent to the Canadian Private Copying Collective (CPCC), and of course the CPCC only distributes a fraction of the money it receives to actual copyright holders.

Extending this regime beyond recorded music will only compound an existing failure. While this will take more money out of the pockets of Canadian creators, it is being pushed by collective societies and allies which far too many politicians mistakenly believe represent the interests of creators.

Educational collectives

There is considerable misinformation about the minor expansion of fair dealings in Canada. This expansion was already a compromise position between those who oppose any fair dealings and those of us who were proposing Canada adopt a flexible Fair Use regime similar to the one used in the United States. Much of this debate is about Canadian collectives wanting to receive money for uses of copyrighted works which are legally free in the United States.

The educational sector in Canada has been slow to adopt Open Access publishing, something that would offer for education something closer to what the FLOSS sector offers in software. It may be that the increasing amount of money that collectives like Access Copyright want to extract from educational budgets will finally force Canadian institutions to fully adopt Open Access.

Our only concern in this debate is that the government doesn't mandate collective societies in the meantime. If the market is allowed to adjust on its own I believe it is inevitable that Open Access publishing will largely replace legacy Access Copyright levies.

Art collectives

While often far from the minds of technology people, there is also a proposal to add a new resale right on art. I think we should be supportive of the new resale right as a form of copyright where the creator has a say in any royalty, but we should be opposed if it becomes mandatory and a way to ship money to a collective. Like other compulsory regimes involving collectives we will see money handed over to collectives on the backs of creators whose revenues will decrease.

What should you do next?

Politicians are in their ridings until the end of January, which is an important time for you to be trying to reach them.

If your MP is a Conservative MP, your mission should be obvious: make sure that the politician is informed about how real-world TPMs work. Given what the party and members believe about the so-called "iPod tax" and the fact that property rights is a founding principle, I believe their own ideology will convert them into allies once they understand real-world technology. Ensure that they realize that all the reasons they oppose the "iPod tax" applies far more to the TPM provisions in C-32 than it does to the levy. Please talk to any and all Conservatives, and don't allow them to simply pass your notes to the Ministers or C-32 committee members. We need more conservative MPs to become allies within the party in lobbying the Ministers and committee members.

The Liberals seem to already want to amend C-32 TPMs. It is useful for them to also be informed about real-world technology so that the policies they will promote will have minimal uncertainty. Their Bill C-60 used a translation of the 1996 WIPO treaty language to Canadian law, which is one way to ratify those treaties. This will inevitably result in lawsuits given the activities which real-world TPMs regulate and the activities that traditional copyright regulates (including as specified in WIPO treaties) are disjoint. That said, uncertainty and lawsuits is still better than certainty in protecting non-owner digital locks in copyright law.

The NDP is primarily represented in this debate by Charlie Angus. While not a technical person, he is strongly opposed to non-owner digital locks. He is also the person who tabled a private members bill to extend the existing private copying regime to devices. I don't think the private members bill will go anywhere, and even with this compromise proposal consider him a great ally.

I have to admit to being confused by the Bloc, and if your MP is from the Bloc I am always interested to hear your impressions. From debates in the house and at committee it appears they have become spokespersons for collective societies. Like the collectives and their allies they claim (or possibly believe) they are promoting policies which help the financial interests of creators, when the policies will inevitably backfire and reduce revenues to creators. I see little discussion of TPMs or much of the substance of Bill C-32 beyond misunderstandings of the compromise position on fair dealings.

My C-32 FAQ, the Petition to protect IT property rights, and my "Protecting property rights in a digital world" presentation are all useful tools for any interactions you have.

I live and work in Ottawa, and if you are shy to meet your MP in person you can still help by encouraging your MP to set up a meeting with me for some time when they are back in Ottawa.