Posted by Bob Jonkman on 12th September 2009
Here is my submission to the Canadian Copyright Consultations.
Submissions have to be submitted by Sunday,13 September — that’s tomorrow as I write this.
I declare this text to be in the public domain — feel free to cut, copy, paste, use, re-use, recycle, reduce, or expand as you see fit, no attribution necessary. Just get your submission in!
Author: Bob Jonkman
The Hon. James Moore, MP, Minister of Canadian Heritage
The Hon. Tony Clement, MP, Minister of Industry
The Hon. Harold Albrecht, MP
1. How do Canada’s copyright laws affect you? How should existing laws be modernized?
My name is Bob Jonkman. I am a software author and technical writer, and make use of copyrighted material in my work — reference documents, purchased commercial software, free Open Source software, and freely available software with various license restrictions. I am married to a television screenwriter, my sister is a journalist, my father-in-law is a musician and song writer, and my brothers- and sisters-in-law are fine artists, musicians, and authors. Copyright law affects me and my family in how we earn our livings at work, and how we entertain ourselves at home.
I am not a lawyer, or an expert on copyright and intellectual property law. As a technologist, I have been following the copyright arguments online, and feel qualified only to comment on how copyright should work with technology, and how technology affects the way copyright can work.
2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time
3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?
4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?
5. What kinds of changes would best position Canada as a leader in the global, digital economy?
The last four discussion points are very interrelated, and rather than repeat myself for each point I’d like to answer these questions for each aspect of copyright law that concerns me. Overall, I favour shorter copyright terms, no criminalisation for non-commercial infringement, no criminalisation of circumvention of technical protection measures, and no media levies. At the same time I think there can be a strong copyright law that favours creators and content owners, while not adversely affecting Canadians buying or using copyrighted material.
Length of Copyright: Less copyright is good copyright. With current terms extending fifty years after the author’s death, most works are obsolete by the time they fall into the public domain. This is especially true for technical documentation and software, where the effective usefulness may be measured in months rather than years. I would be in favour of a copyright term of 20 years, measured from the time of the creation of the work, but not to exceed the life of the author. An estate should have no copyright over a deceased author’s work — copyright is a right to exclusive copying, not a right to eternal income.
Copyright Registry: It is difficult to determine if a work is under copyright if the author is not known. With a copyright registry there is a clear and definitive determination whether a work is under copyright — if it is not registered or the registration has expired, the work is in the Public Domain. The National Library of Canada already collects all works of Canadian authors (and composers and musicians), and would make a good repository for a copyright registry. Registering copyright should be done at no cost to the author, to avoid disenfranchising the less wealthy. I realize that a copyright registry is not a popular option, and may not follow international guidelines, but here Canada has a means to create a unique solution for Canadians.
Crown Copyright: There should be no Crown Copyright. The Government of Canada and the provinces produce many good, important works, which should be placed immediately in the Public Domain. These works are produced with tax dollars, so, in effect, Canadian citizens are already the owners of these works. While purchasing government publications at the government bookstores may offset printing costs, reproducing them electronically and making them available on Web sites incurs no additional costs. With free distribution those government publications are no longer available only to those with disposable income. From the technology perspective, once government data is freely available many new online services can be created (eg. Geospatial data for mapping applications), which are now restricted by Crown copyright.
Fair Use, Parody, Satire, Criticism: The Canadian Fair Dealing exceptions to copyright are too restrictive. This makes it impossible to provide commentary or criticism in context, or any parody or satire on a work at all. Copyright law should have clear language to allow educational excerpts for parody and satire, and quoting for criticism. Educational institutions should have broad exemptions to be able to quote from copyrighted works where that work is under study, but not for freely copying reference materials. Open Source or Open Documentation licences for reference material is a good alternative, and those works can still be covered by copyright.
Format Shifting, Time Shifting, Location Shifting, Personal Use: Activities such as copying a CD to an MP3 player, recording a TV show for viewing at another time, or uploading purchased music to an Internet service to make it available to the purchaser anywhere online are all taken for granted by Canadians in the age of computers. There needs to be clear language in copyright law that making a copy for personal use is completely legal. That creating backup copies of software, digitital media or works stored in electronic formats for personal use is legal. That changing the format from text to speech or braille is legal. With clear legal standing, many new online services can be created, which today are avoided because of their potential illegality (eg. An online service which lets me pick up my digital TV subscription anywhere online, or online personal backup repositories).
Digital Rights Management (DRM), Technical Protection Measures (TPM): The circumvention of DRM and TPM must not be illegal, and the tools to perform circumvention must not be illegal, and the dissemination of knowledge to circumvent must not be illegal. The "Content Industry" tries to protect its copyright by making it difficult to make copies. Sadly for them, this is always ineffective. Even when circumvention of DRM and TPM is itself made illegal, the people who make illegal copies have no qualms about illegal circumvention either. The only harm is to people who purchase media with DRM or TPM, who are prevented from exercising their personal use rights for format shifting or time shifting. The company that holds the keys to DRM is above the law, and can remove legally purchased material by revoking the keys. I don’t advocate making DRM or TPM illegal — let those who want to apply DRM and TPM to their material do so. Their competitors who publish material without DRM will quickly out-sell them.
Lawsuits by Big Media: It seems to me that the "Content Industry" is driving much of the efforts to change copyright law. As prominent Canadian lawyers like Howard Knopf have noted, Canadian copyright law is plenty strong already. Content distributors (not authors, musicians or filmmakers) are abusing copyright law as a revenue source — it is far more lucrative to threaten and settle for thousands of dollars, or to sue and be awarded millions of dollars, than it is to actually create content. Copyright law must clearly state that commercial infringement is a criminal act, but non-commercial, personal infringement (where there is no financial gain) is not. Canadians should not live in fear of criminalisation merely for listening to music, or letting customers in the waiting room listen to music. Companies should be liable for frivolous lawsuits — making a false claim of infringement should incur far heavier penalties than those of the alleged infringement.
Making Available: It is not a crime for me to leave my bicycle unlocked — the criminal is the one who steals it, locked or not. By the same token, making copyrighted material available should not be illegal, but infringement of copyrighted content should be (with appropriate penalties depending on whether such infringement is commercial or non-commercial).
Carrier Liability: It is easier to identify the service provider hosting infringing content than the person who puts it there. Carriers should not be held liable for the actions of their customers — to use the bicycle analogy again, the parking facility is not responsible for the bike theft.
Three Strikes, Graduated Response, Notice and Takedown, Notice and Notice: It is easy to identify the Internet Service Provider hosting infringing content, but ISPs must not be put in the position of enforcers. If there is evidence of infringement then there are already mechanism in Canadian law to stop it. The law must clearly state that accusations by the "Content Industry" without proof will not result in denial of Internet service for Canadians. The content industry can report infringement to law enforcement authorities, just like any other infringing activity is dealt with in other venues. Internet service is too important to Canadians to allow the content industry to arbitrarily cut it off. Notice and Notice would be a polite way to inform someone of possible infringement, and is the right Canadian thing to do.
Of course, if Making Available is no longer an infringement of copyright, then there is no need for Carrier Liability, Three Strikes, or Notice of any kind.
Media Levies, ISP Levies: There should be no levies on media at all, nor should Internet Service Providers be required to collect levies. As technology progresses, more and more material will be available digitally. It seemed to be a good idea in 1996 to collect a music levy on CDs to offset the cost of music infringement. Unfortunately, the media on which the music levy is applied can be used for many other purposes — data storage, movies, games, software, coasters. The media levy is improperly collected more often than not. And levies cannot cover all the content available — today movies, books, newspapers and games are all available digitally too, and there are many more media capable of holding digital content: portable hard drives, solid state thumbdrives, iPods, cameras, phones and Blackberries. The amount of digital content will only increase, and new digital media will be invented. New Creative Content licenses on content are also becoming popular, which the creators explicitly want to be free. Paradoxically, collecting a levy is both overly broad and inadequate at the same time.
Secretive international agreements, eg. ACTA: Open government is good government. Inviting Canadians to submit their thoughts on copyright has sparked a national interest in the process of lawmaking, and the workings of Canadian parliament in general. Canadians have been given a direct, effective voice in how their country is governed, a textbook example of participatory democracy. Unfortunately, at the same time Canada is participating in the Anti-Counterfeiting Trade Agreements talks, which threaten to undermine all the work being done on copyright reform. Not only are Canadian citizens themselves excluded from these talks, it seems foreign interests will be dictating how Canada should form its copyright, trademark and other laws. Please ensure that any negotiations of this type are publicly reported, and that Canadians’ views on copyright are represented. If Canada can participate in these negotiations only with the condition of secrecy, then decline to participate. As these copyright consultation submissions show, Canadians are perfectly capable of designing their own copyright law.