Letter to Carolyn Bennett: words from Heritage Minister Frulla upset me more than Gomery inquiry.

I wrote the following letter in the Contact Me form on Carolyn Bennett's website.

I was reading your BLOG from April 15. As someone who is not excited by the Gomery inquiry, and does not believe that this will be worthy of an election regardless of which way it goes, I suspect my views may be of interest. I read the 2003 Auditor General's report where chapter 3 was the sponsorship program, and as an Internet consultant felt that chapter 1 (Government on-line) represented a far larger problem.

Worse than what I read in the Auditor General's report is what I have had to endure from a successive Ministers of Canadian Heritage on copyright revision. I met and debated Sheila Copps at an event her department hosted where I was invited as one of 30 creators:
http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/forum/index_e.cfm

I now hear Hon. Liza quoted as saying that she will push for legislation that "will give the tools to companies and authors to sue". This ignores the fact that the industry already has excessive tools at its disposal for this purpose. As a Canadian who actually read the case involved I have been trying to inform parliamentarians that CRIA did not loose because of a problem with the copyright act, but because they did not offer adequate evidence. CRIA has been abusing the misconceptions about this case as part of their lobbying efforts. If there is a deficiency in the copyright act it was the changes in 1997 that was made on the music industry's request in the form of the private copying regime.

Big Music sings the blues (...all the way to the bank)
http://www.digital-copyright.ca/node/view/791

While the Gomery inquiry doesn't affect my vote, the embarrassing words from the minister does. The minister wants to make it easier for the music industry to sue music fans, often youth, and including those who are fans of competing labels. This is based on her unwillingness to analyze all sides of the information in front of her, and parrot the misinformation being spread by the legacy content industry.

While I voted for the Liberal candidate in my riding last election, unless some Liberals come out and are seen to be listening to Canadians over the noise generated by the old-economy content industry, then I will not be able to do this at the upcoming election.

If Hon. Carolyn Bennett tables signatures for our Petition for Users Rights, and speaks well on the issue, she may be able to get some positive publicity on this issue prior to the election. At the moment the party that looks best going into the election the NDP as heritage critic and musician Charlie Angus is personally aware and speaking out about the misinformation from the major labels.

Our BLOG for St. Paul's
http://www.digital-copyright.ca/taxonomy/page/or/204

Timmins–James Bay, riding of Charlie Angus
http://www.digital-copyright.ca/taxonomy/page/or/219

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legislation to sue filetraders

I've seen this covered extensively in the media but I haven't been able to track down the primary source. what did she mean by "tools" , is this nothing more than introducing the "make available right"? or was she referring to some legislation *in addition* to what was already proposed in the response to the heritage committee report

see:

"Government Statement on Proposals for Copyright Reform" http://pch.gc.ca/progs/ac-ca/progs/pda-cpb/reform/statement_e.cfm

and:
"CANADA REJECTS ONE-SIDED APPROACH TO COPYRIGHT REFORM" -geist
http://www.michaelgeist.ca/resc/html_bkup/mar282005.html

remember, another key point of the Fickenstein was the make available issue. Aside from lack evidence (which is always going to be problem with enforcement by IP address) i seem recall that Finckenstein compared putting files in your kazaa shared folder to providing access to a photocopier in a library. because Canada does not have a "make available right", simply providing easy access to copyrighted materials for *other* people to infringe copyright, did not constitute infringement itself.

As I understand it, the government has proposed closing this "loophole" by including a make available right in Canadian copyright law. This new right would make uploaders (if they could be identified) liable for copyright infringement.

is this the "new legislation" she refers to or is it something else that grants larger powers for litigation to the labels?

Russell, what are your thoughts on the good or evil of the "make available right"?

thanks,
confused citizen

no more legislation is needed

>Aside from lack evidence (which is always going to be problem with enforcement by IP address)

Actually, producing evidence should be fairly easy. The only tricky part is the "authorisation" part - one of these investigative firms that the CRIA hires is clearly authorised to copy works that they hold the copyrights to. If you read the transcript of the case, the CRIA's evidence amounted to "I employ some people who said that they were able to download some files with names that implied that they might contain works to which we the plaintiffs own the copyright.". The judge rightly struck this down as inadmissible on several grounds.

>i seem recall that Finckenstein compared putting files in your kazaa shared folder to providing access to a photocopier in a library. because Canada does not have a "make available right", simply providing easy access to copyrighted materials for other people to infringe copyright, did not constitute infringement itself.

Close. Certainly providing facilities that would make infringement easier is nto a crime in Canada, and rightly so in my opinion, because infringement is illegal. Interestingly, because downloading of music files was ruled to be legal, putting files in a shared folder isn't actually making it easier for other people to infringe but is mor elike a prerequisite for your own infringement.

>As I understand it, the government has proposed closing this "loophole" by including a make available right in Canadian copyright law. This new right would make uploaders (if they could be identified) liable for copyright infringement.

The case made no ruling about uploading, except that the CRIA didn't produce any admissible evidence that it had happened. It strongly hinted that uploading is indeed illegal. the onyl "loophole" is that the music industry managed to make downloading legal with the 1996 amendments to the Act that they lobbied so hard for. Essentailly, we pay them a levy on blank media, therefore downloading (for personal use) is legal.

Yes, the government is proposing to make "making available" illegal, regardless of whether any infringement actually occurs as a result of it.

Overly complicated legislation is the problem, not solution...

I offered some comments on the new "making available" right in the earlier article that discussed the 3 parts of the ruling. As indicated, while the legacy industry associations are focusing on the lack of an explicit "making available" right in Canada, the existence or lack of this new right would not have affected this case. It is entirely unnecessary, as unauthorized uploading/"sharing"/distribution of music is already illegal.

Part of the claimed need for a new right is based on confusion around technology, and questions about whether or not our current "communication to the public by telecommunications" covers the required acts. When someone puts a file in a shared folder that is a method of telling the computer to, at a time decided by a potential recipient, to "communicate to that person by telecommunications" the work.

One of the odd claims is that it is the person requesting the file that is "communicating the file", so the sender is not violating copyright. This makes absolutely no technological sense. Whether the sender sets the timing of the communication, or the receiver sets the timing of the communication, the sender is still the one communicating via telecommunications. Rather than making more changing the copyright act that will be misunderstood, perhaps a better method to solve that problem would be to involve technologically literate witnesses, lawyers and judges during technology law cases.

The 1996 WIPO Copyright Treaty Article 8 says:

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

In my mind the difference between a technologically literate interpretation of the current act and this specific article of the 1996 WIPO treaty falls under what you might want to call "pre crime". The activity that is claimed to be harmful to copyright holders is the unauthorized communication to the public of their work, and until communication has occurred there can be no reasonable suggestion that there is harm and thus should be no claim of infringement!

What I worry about is that any new "making available" right will be (ab)used as yet another legal loophole that old-media copyright holders use to claim infringement without needing to collect evidence. In order to know for certain that an alleged infringer is infringing your rights you must receive (be a "downloader") of the file, determine the origin, authenticity, and ownership. One of the issues raised in the case is whether the alleged infringing files were in fact infringing, or more of the many dummy files that the legacy industry posts to the various P2P networks itself.

So we have the 3 parts:

a) lack of evidence of "uploading"

b) More complicated "making available" right being unnecessary, and likely abused to avoid gathering evidence

c) unauthorized downloading of music for personal use legalized on behalf of the music and recording industry (1997 batch of changes to copyright).

I do not agree with everything that Justice Von Finckenstein wrote in his ruling. I believe discussion of photocopiers caused considerable confusion. Unauthorized downloading of music for personal use would not be an infringement, and it is only the person sending that would potentially be infringing. I do not agree that the situation is related to the CCH case given the person "providing the photocopier" (the person putting files in the shared folder) is most likely the same person who would potentially be infringing copyright (communication by telecommunications, uploading, "sharing", etc). If someone other than the owner/operator of the computer (the one potentially "communicating by telecommunications") is able to place files in a shared folder, then that is a major defect in that software that puts the owner/operator of the computer at considerable legal risk.

I would go so far as to suggest that the person downloading should never be the one responsible for infringement if they could not have known the file was infringing. I could program this website to send an infringing copy of some non-music file when someone asks for the homepage, and this is something that only I as sender should be responsible for -- not the innocent bystander that downloads a file that they legitimately assumed was authorized.


Free/Libre and Open Source Software (FLOSS) consultant.