Summary of Interim Report on Copyright Reform

At a meeting on Wednesday, November 3, 2004, the Standing Committee on Canadian Heritage (CHPC) re-tabled their Interim Report on Copyright Reform from last session, repeating that it was a "unanimous" report. While it is great when all the parties work together, it is far more important to have good policy than unanimous policy. This report is not good or well thought out policy.

(Added additional article links on Dec 14)

I will offer one summary of the recommendations from this report, indicating my reasons for opposing all aspects of the report.

  1. Ratify the highly controversial WIPO treaties (WCT and WPPT) that were signed in 1996, long before most policy makers and citizens started to understand new media like the Internet. These treaties and the process that lead to it should be rejected, and we should move forward including all stakeholders. This policy process was dominated by special interests from incumbent industry associations who strongly oppose positive but disruptive change.
  2. The most empowering and important feature of new media like the Internet is dis-intermediation, allowing more direct and more healthy relationships between creative citizens and their audiences. No permission is required to become creative, and citizens are enabled to create and communicate their works in ways that are different than legacy media interests.

    New communications media is always disruptive to the legacy business models of old media. This needs to be properly understood as a feature, not a problem to be "solved". This is no different than past advances communications that were disruptive to the business models of the day. Creators have greatly benefit every time a new new communications technology is allowed to exist and be independent of incumbent interests.

    These treaties seek to re-intermediate new media which will create problems far worse than the broadcast media concentration problems of the past. These treaties are based on extremist policy recommendations originating out of the United States which were implemented in their Digital Millennium Copyright Act.

    The so-called "Obligations concerning Technological Measures" are discussed in:

  3. Change the rules around photography to be different than how most Canadians would understand. Photographers are already recognized as the authors when they take pictures on their own initiative, but this recommendation will cause many unintended consequences.

  4. One aspect discussed in: The picture that may never again be possible.

  5. Adopt a "claim and censor" type regime for Internet Service Providers (ISPs), the 2'nd most controversial aspect of the USA's DMCA. This is not a discussion of removing clearly infringing works, but setting up a system where untrained ISPs will feel forced to remove content based on the mere accusation of infringement from someone who may not be the copyright holder.
  6. Create an exception to the copyright act in the form of an "extended license" where a collective society will be able to collect royalties outside their repertoire. In this case royalties will be collected from educational institutions for works received from the Internet that should be understood as royalty-free. If educational institutions will be levied, the claim is that non-educational royalty-free use is infringing.
  7. This recommendation attempts to define "publicly available material", ignoring the well understood implied license for material distributed on the Internet without a password or other technological protection measure. Just as the license for a book does not need to clarify that a purchased book may be read any number of times by any number of readers as this is implied by the nature of a book, the same is true of the royalty-free ability to access and cache documents on the "no membership required" part of the Internet. The Heritage definition will cause royalties to be collected based on works where the copyright holder didn't use a legalistic license to indicate a document is royalty-free, or dishonest copyright holders who seek to create confusion about the implied license.

    4 and 5 discussed in: Excess Copyright? Towards a full spectrum of business models for published works.

  8. Another exception to copyright in the form of an "extended license", this time for materials distributed by educational institutions. There is no justification for this exception as copyright holders or collectives can already license works where they are the copyright holder, or the work is part of the repertoire of the collective. Like recommendation 4, this exception allows collectives to invalidly collect royalties from works that are not part of their repertoire, something I have a hard time differentiating from commercial for-profit copyright infringement.
  9. Yet another exception in the form of an "extended license", this time collected from libraries for electronic inter-library loan. As with recommendation 4 and 7, there are existing market based solutions which do not have harmful unintended consequences. No exception to copyright is needed in any of these examples, and the government has no business imposing business models on copyright holders or their potential customers.
  10. Urges the Government to fast-track these recommendations, not allowing for adequate public awareness and discussion of these embarrassing radical policy suggestions. This report appears to have only accepted information from witnesses representing incumbent content industry associations and collectives, all of which appear to see new media like the Internet as a threat to their monopoly positions rather than an opportunity for the creators they falsely claim to represent. This report doesn't appear to be about protecting copyright, but creating exceptions to protect these monopolies from legitimate and much needed competition.
  11. Recommends that legislation to permit ratification of WIPO treaties be introduced in the house by November 15 2004. Fortunately there were delays, and the longer the delay the more educated parliamentarians and the general public will become.
  12. Please join our forum and discuss this report and its recommendations. There are different interpretations of the report, but even with the diversity of reasons there is near-unanimous opposition to this report outside of very narrow special interest communities.