Advice to a Conservative majority on Copyright

While I’ve not being asked yet, I thought I would offer the new majority government some advice that I believe is consistent with their stated values. All too often with the debates around technology law we see policies put forward that I’m concerned MPs haven’t given the time to understand how they interact with their own longer-standing values and experiences.

This is also an open invitation to any MP or MP staffer from any party to meet in Ottawa to discuss this area of policy. This isn’t sound-bite stuff that can be understood in only a few moments. While I’m a volunteer policy coordinator for a few technology related organizations, I would be meeting as a citizen who has spent much of the last decade dedicated to this area of policy.

Put clarification and simplification of the act as a priority

While the “sky is falling” rhetoric from some of the groups involved in the copyright revision process claim Canadians are falling into some sort of moral decay, this is far from the truth. This is just an excuse abused to push governments to quickly make radical changes to the law without giving the reforms adequate thought.

Current Copyright law excessively regulates the private activities of individuals, is excessively complex, and thus induces nearly every Canadian into being a copyright infringer. In order for Copyright to be respected it must be respectable.

There is a also a need to clarify what aspect of copyright comes into play with respect to new communications technology. This will avoid overlapping royalties causing audiences to have to pay over and over for the same thing, or scenarios where the industry becomes paralyzed by legacy arrangements they can’t break free from.

As one example, we must clarify whether the communication of music over the Internet is an example of a “communication by telecommunications”, or the distribution of a virtual copy treated as if it were a mechanical copy. Having the act clarify this scenario would solve many of the current problems within the music industry -- problems that easily have a greater impact on revenues for composers and performers than infringement does.

Clarification and simplification of the act was mentioned as the last bullet in the lowest priority in the Section 92 report back in 2003, but it should be the highest priority that shapes all other changes.

Don’t blindly follow the protectionist demands of the US democrats

Conservatives were justifiably worried when the Democrats were sweeping into the Whitehouse that they would return to protectionist policy. The problem is that while a Conservative government will easily reject policies they recognize as protectionist, US proposals on Copyright fall under the radar and aren’t adequately recognized as protectionist. The most controversial proposals are failed Clinton/Gore era policy that are now being strongly pushed by the Obama/Biden administration.

The worst offender is technological protection measures, which allege to reduce copyright infringement, but have a very different effect on the market. TPMs benefit those who hold the keys to the digital locks, and those will predominantly be US companies with first-mover advantage who will continue to abuse these technologies with anti-competitive (within the USA) and protectionist (globally) outcomes.

MPs must take a closer look at what is being asked of Canada in the USTR’s Special 301 report. Policy makers must recognize that the only reason why the USA isn’t on the list is that they are the author. Canada already has “stronger” copyright legislation in most ways when compared to the USA. We would do well to adopt a US-style living Fair Use regime to allow Canadian law to become more balanced.

The special 301 report is not based on facts, but is a pure lobbying tool to manipulate foreign politicians (like Canadian MPs) into enacting protectionist policies which will predominantly benefit the USA at the expense of Canadian business.

Protect the property rights of all impacted owners

In my intervention before the C-32 committee on March 8, 2011 I described how there were 4 classes of owners impacted by Bill C-32. The bill only protecting a small subset of one of the classes of owners at the expense of the other three. The Conservative government must respect the rights of all classes of owners, ensuring that the property rights of each are adequately protected. Whenever protection of property rights are abandoned by the government, there are many secondary impacts relating to the economy and other business and citizen rights which must be considered.

While the full protection of IT property rights would be ideal, including adequate regulation of technical measures to prohibit their abuse, a minimum would be to ensure that circumvention of a TPM is only prohibited in the Copyright act for otherwise infringing purposes.

Abolish the private copying regime using a win-win mechanism

While various Conservative parties have been campaigning against the private copying regime since it was proposed by then Liberal Heritage Minister Sheila Copps, the Conservative government didn’t take the opportunity of C-32 to abolish it. C-32 offered protection of the existing private copying regime from important Fair Dealing reform.

The proposal is to finally get rid of this controversial policy which I believe has failed even at its intended goals. I suspect this regime has confused music fans and induced them to infringe copyright in ways that has cost creators more money than the regime has ever returned to creators. It is a failed government funding program that never had any business being in the Copyright Act.

I believe it is appropriate to create a properly administrated and accountable government program to replace it, using the Public Lending Rights (PLR) as a model.

Move forward with less complex fair dealing reform

The ideal would be to adopt US-style Fair Use which has proven to be technology neutral, and allowed courts to manage new issues brought up by new technology.

A lesser alternative would be to use a simplified version of what we saw with C-32. For instance, the “reproductions for private purposes” proposal in 29.22 was a big step in the right direction, but was made excessively complex by trying to create exceptions to this exceptions to protect the private copying regime and to allow technical measures to be abused to create an “opt out” of fair dealings.

While adding parody, satire and education to the fair dealings categories was a good start, it would have been better to make that list illustrative rather than exhaustive. As a critical part of clarification and simplification we must put the fairness test within the Copyright Act, rather than relying on people being aware of supreme court rulings.

Don’t hold intermediaries liable for the alleged activities of others

Resist the call from some interests who believe that providers of multi-purpose technology products and services should be held partly liable for any abuses by citizens of this technology. We don’t hold automobile manufacturers liable if a car is used as a getaway vehicle from a crime, and we equally shouldn’t hold technology companies liable for abuses of their products/services.

There are times when communications intermediaries are needed to communicate with otherwise anonymous alleged copyright infringers. This is why we need a notice-and-notice regime put in place. We should be rejecting notice-and-take-down or notice-and-terminate systems, and we should ensure service providers are adequately compensated for their services.

We already have systems in place where real provable infringements can have very stiff penalties in the courts, and there is no justification for allowing penalties to be imposed based on unproven allegations of infringements.

We need to be very careful when discussing products and services alleged to “enable” infringement. Creativity and infringement are identical technological acts: you record, author, edit, communicate and distribute creativity. Any policy that targets multi-purpose technologies that allegedly “enable” infringement will by definition target technologies that “enable” creativity.

There are other legal theories such as “inducement” which are more appropriate, but still need clarity given there are many things (including inadequately clarified and simplified law) which are known to “induce” infringement.

Don’t be in the business of imposing business models in the marketplace

Governments are generally understood as being bad at picking winners and losers in the marketplace. In any reform of copyright, the government should not privilege one business model option over another. This is important for people such as those working in the lucrative Free/Libre and Open Source Software (FLOSS) sector which rely on copyright to receive material and moral rewards for our creativity, but that do not (generally) charge royalties.

Compulsory or extended licensing needs to be understood as an exception to copyright where traditional copyright replaced with a government set royalty. The government should use the 3-step test for this type of exception, ensuring that in the process of making things administratively simpler for some copyright holders that the business models of others are not wiped out. There are times when this extreme exception to Copyright is necessary, but this policy lever must be used with extreme caution.

Go lightly and with open eyes when ratifying WIPO treaties

I believe it is good policy to give WIPO treaties due consideration, recognizing we are under no obligation to ratify a treaty we merely signed long ago as an indication of interest.

Of the 6 copyright related treaties administered by WIPO, Canada has only ratified two. If we chose not to ratify the two that were completed in 1996, it may be for some of the same reasons we never ratified some of the previous treaties.

I have documented that there are mildly helpful and very harmful interpretations of the two 1996 WIPO treaties. We need to remember that they were authored at a very different time, back when the Internet was young and FAX machines were still the rage. There are many concepts within the treaties that have not turned out as intended, and we must learn from this history rather than blindly following mistakes made a decade and a half ago.

These two treaties are complex enough that they deserve to have a bill separate from any other reforms. The more complex any single bill, the more likely harmful policy will slip through without being adequately debated at committee and fixed before a bill is passed.