Discussing NDP MP and party leadership candidate Romeo Saganash's Copyright article

When I noticed Mr. Saganash's tweet about his Huffington Post article, I replied to say that while I didn't agree with everything he wrote about Bill C-11, I was glad he noted the harm to creators and owners from TPMs. I suspect it would be worthwhile for me to unpack that comment.

In a reply to Mr. Saganash, Jason J Kee disagreed with the suggestion that most countries don't prohibit circumvention for non-infringing purposes. I believe this reply conflates two very different types of technological protection measures included in Bill C-11: use controls, and access controls.

Use controls in C-11 follow what was suggested in the 1996 WIPO treaties, and are tied to activities that might otherwise be regulated by copyright. When discussing use controls it is appropriate to discuss fair dealings, given while use controls are limited to those activities otherwise regulated by copyright, fair dealings is a further limitation of copyright's restriction of those activities.

Access controls as defined in C-11 have no tie to copyright law. It is this type of TPM which enables the greatest harm by those who will abuse these provisions to infringe on the rights of various owners. For these types of TPMs, any discussion of fair dealings would be a distraction from the larger amount of new activities never before contemplated by copyright law which are now presumably regulated by the mere presence of an access control TPM. Access was never before contemplated in copyright law, and for good reason. Once someone can restrict access through copyright law they can effectively re-write the Copyright Act in their contract, creating a legalized opting out of the existing contours of contract, e-commerce, property, competition, trade and even copyright law.

Any survey of countries to determine whether they allow circumvention of TPMs for lawful purposes, as explicitly proposed in the 1996 WIPO treaties, must start with determining whether the law protects use controls, access controls, or both. It is beyond apples-and-oranges to try to merge the two together as if they have similar impacts.

Mr. Saganash discussed use controls in his article, articulating some of the problems where TPMs can be abused to circumvent the fair dealings limits to copyright. There appeared to be no discussion of the far worse abuses enabled by access controls. The article also seemed to focus on the interests of copyright holders and audience, not recognizing that with Paracopyright provisions you have two more constituencies: competing software authors, and technology owners.

Digitally-encoded content can’t make decisions any more than a paperback book is capable of reading itself out loud. If there are any rules to be enforced they are encoded in software which runs on some device. It is science fiction to believe that a TPM applied to content alone can "make decisions."

Understanding the real-world market impacts of these technologies requires understanding all the components, and including the motivations of software authors (including the anti-competitive interests of DRM vendors) as well as the fundamental (but all too often ignored) rights of the owners of the devices. (See: Why Heritage Minister James Moore is wrong on Bill C-11 "technological protection measures" (TPMs))

With the critical problems of Paracopyright out of the way, the article also discussed some of the copyright provisions.

I am uncomfortable whenever people talk about the so-called "book-burning" provisions. What they are talking about is a new student focused exception to copyright where a delay is created where activities that are currently infringements would not be infringements for the length of a course plus 30 days after final course evaluations. There is no "book-burning" going on, given we are discussing materials which current law doesn't allow students to create in the first place. This is not their course notes, which are works where the students are the creators, but copies/recordings of materials owned by other copyright holders which would otherwise have been infringements.

I believe those talking about "book-burning" have understood these provisions backwards. This is not harm to students to the benefit of copyright holders, but potential harm to copyright holders for a potential benefit to students. As a proponent of open access educational material I believe we should be minimizing closed access educational material in our schools. Policies which grant free/gratis access to closed educational material will slow down Canada's adoption of free/libre educational material, to the detriment of our global competitiveness. (See also: Why I'm offering moral support, but no signature/tweet, to @ccercanada campaign).

Mr. Saganash goes on to discuss some related technology law issues, such as network neutrality and the need to prevent Internet providers from persisting in anti-competitive behaviour. He may not realize the connection between hardware manufacturers and Internet providers, and how specific monopolists in each sector seek to control either the endpoints (TPMs with hardware manufacturers) or interconnecting networks (network providers) for their own anti-competitive purposes to the detriment of the Canadian economy as a whole. In ach of these cases there is a need for governments to intervene to prohibit anti-competitive behaviour, given these harmful monopolies are built upon government granted monopolies (Paracopyright, copyright+patents on interfaces, right-of-way exceptions to property rights to lay down wire-line networks, spectrum auctions). In each case there are ways to minimize the damage to the Canadian economy caused by these monopolists which must be pursued.