Report from Ottawa; Top 12 copyright reform issues

Linked above is my report from the Ottawa copyright meeting last Thursday.  Be warned that the report is long (about 15,000 words) and pretty technical; if you haven't already, you may want to read some of the documents on my DMCA de Canada links page first.  For the benefit of anyone who wants a summary of the issues, here are my approximate top twelve.

#1 Legislative protection of Technological Protection Measures (TPMs). This is the one that really gets the techies riled up.  The movie and recording industries want to distribute their wares in "secure" formats, ostensibly designed to prevent "piracy" but with the interesting side effect of creating a monopoly on playback systems for their chosen favourites.  Book publishers and similar groups are looking hungrily at the possibility of similar systems for their products.  In a world where that is going on, should it be a crime to "circumvent" the systems, to allow access to the works in a way not authorized by the publishers?  The U.S. Digital Millennium Copyright Act says that yes, that's illegal.  One reason it perhaps should not be illegal is that there are often good reasons (for instance, critical review) why someone might need to use the work in a way that the privilege holder would oppose.  Academics and programmers have been threatened or jailed in the U.S.A. under the DMCA, and many abroad are now boycotting U.S. conferences.  So issue number one is, should we have this kind of law in Canada?

#2 Notice and takedown. The DMCA also creates a "notice and takedown regime", which means that someone who claims to hold copyright for a file on the Web can demand that the ISP hosting the document must remove it.  Whoever posted the file is then placed in the position of trying to have it put back, often at considerable difficulty or expense, even if the complaint is later found to be spurious.  This regime is designed to allow fast processing of complaints over things like "pirated" MP3 files placed on the Net - the industries in the U.S.A. successfully argued that if they had to wait for a court order before the file could be removed, lots of other "pirates" would copy it in the meantime, and so there'd be no possibility of halting the spread of the "pirated" material.  However, there's a fear that DMCA complaints may be used as a way to harass posters of controversial material that is not in violation of copyright - for instance, the Church of Scientology recently got the Web site of one of their critics removed from Google by means of a DMCA complaint.  A uniquely Canadian wrinkle on this is that Bill C-15A, which just passed Parliament, creates a much more cautious "notice and notice regime" for child pornography.  If there is something alleged to be child pornography on the Web, then the police need to get a real court order before it can be forced off the Web.  Why should copyright infringement be treated as a worse crime, requiring more drastic enforcement measures, than child pornography?

#3 Liability for linking. If there is a document on the Web that is illegal for any reason - either something that is copyright and posted without the privilege holder's permission; or something obscene; or a "circumvention device" if those are banned under point #1 above - and I publish a link to the illegal document, then am I guilty of distributing the document as I would be if it were on my own Web site instead of just linked?  In the U.S.A. there are some hard-fought court cases examining this issue, such as Universal v.  Reimerdes.  Here it hasn't been tested much, but it's under discussion in the hope that a sensible decision can be made before it gets to the court.  (My Cyber Patrol break case would have tested linking in Canada if it had gone to court, because all that was ever actually published in Canada was a link to the document in Sweden.)

#4 Copyright term extension. The first modern copyright law (that of Queen Anne, which came into effect in 1710) had a 14-year limit on copyright.  Since then it has been extended, a little at a time.  The current limit, under the Berne convention to which Canada is signatory, is a little complicated but usually boils down to the life of the author plus 50 years.  The U.S.A. just extended theirs to "life+70" - work remains copyright until 70 years after the death of the author.  Some people have traced the history of U.S. copyright extensions and claim that they tend to coincide with dates when the first Mickey Mouse cartoon would otherwise have been elevated to the public domain (under life+50 it would be public domain in 2003).  Since the latest extension was made retroactive on copyrights that had already expired, a lot of orchestral musicians have found chunks of their repertoire suddenly unavailable.

#5 Copyright for photographers. This is not a topic I know a lot about, and it doesn't affect me much directly, but it's been brought up a lot in the meetings:  apparently there are special rules for copyright of photographs, different from those for other works, and they mean that professional photographers often do not end up owning the privileges on their own works.  Also, there are concerns about the definition of "photograph", which currently involves lots of language about film and negatives; unclear how that applies to digital cameras which don't have either.  Photographers and their representatives have been appearing at all the meetings to demand the same copyright privileges as other creative workers.

#6 Educators and libraries. Libraries and educators do a lot of things in their normal course of business that might force them to work around technological limits or violate restrictions the privilege holders would like to impose.  For instance, interlibrary loan services will sometimes make you a photocopy of a magazine article from another library if it's not available at your local library.  Educators may take documents from the Web and print them out for students to read.  They want their ability to do these things (currently protected by exemptions in copyright law) to remain protected in the face of any new rules that may be imposed.  I think it's also important that these kinds of exemptions should apply to homeschoolers as well as more formal educational organizations.

#7 WIPO and globalization. There is an organization called the World Intellectual Property Organization (WIPO) that exists to "normalize" laws such as copyright among all the world's countries.  Intellectual property provisions have also been tacked onto other "globalization" and "free trade" treaties, such as the FTAA. These kinds of international standardization efforts may be dangerous because large corporations will arrange to have laws favourable to them passed in one country (such as the U.S.A.) and then use treaty compliance and "all countries should have the same rules" as a lever to try to force those laws into other countries.  That happened with drug patents already; now we're seeing it applied to copyright term extension.  (I just re-read that and horrified myself with the fact that bad as it is, it only made number seven on the list.)

#8 Privacy and accessibility concerns. Many of the schemes being discussed, especially in the "technological measures" line, require people to use special "client" software to access all media, and require that a database lookup, or report to a central authority, be made every time you watch or listen to a file.  That immediately raises a privacy concern, because the central authority can compile a list of what files you watch or listen to and when.  It also raises accessibility concerns, because the special "client" may not be usable by someone with a disability, and there may be no accessible alternative.

#9 Database protection. Bare facts, without a creative component, are not subject to copyright.  For instance, if I write down your phone number, I do not own copyright on that, because I am not considered to have done anything creative.  But what about a phone book white pages listing - a collection of bare facts not themselves subject to copyright?  Such collections have not historically been subject to copyright, but there have been some recent attempts to claim copyright on them, the theory being that making the list involves "work" that ought to be rewarded, even if it doesn't involve creativity.  It's not formally one of the issues, but some commentators (most notably Dr.  Samuel Trosow of UWO, who I met on my trip to Toronto) suggest that there's a sneaky attempt going on right now to bring in database protection in this round of "reforms".

#10 The blank media levy. When you buy blank recording media in Canada, you pay a levy which goes to a collective licensing organization to theoretically be distributed to recording artists.  This levy is supposed to compensate the artists for the copyrighted music you will obviously be pirating onto that media - even if it's actually a CD-R you use for backing up your computer files, or to record your own garage band's music for which you hold the copyright yourself.  There is a proposal before the Copyright Board right now to increase the levy drastically and apply it to many new forms of media - including flash memory cards, so the photographers are especially upset.

#11 "Making available". One of the WIPO treaties requires the creation of a privilege for "performers and makers of phonograms" to control "making available" of their work through interactive communication.  In Canada, authors already have an exclusive privilege of "authorizing communication to the public", which is considered to be substatially the same thing.  So there's some discussion of whether that has to be changed, and/or expanded to performers and producers, in order to comply with WIPO - which, of course, begs the question of WIPO ratification at all.

#12 Deep linking. Do I need your permission to publish a link to your Web site?

[Report from Ottawa; Top 12 copyright reform issues]

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