Government's "statement" on copyright reform

So the Canadian government has issued a "statement" on copyright reform, as the latest step in the consultation process I've been following since Summer 2001. Many people (Slashdot, Michael Geist in the Toronto Star and in his blog, p2pnet.net, CIPPIC, and so on) seem cautiously optimistic. That's more or less how I feel, too. Here's a summary of the short document, and some comments.

They start out talking about WIPO ratification and the legislative changes they think are needed to make that possible. I think it's really unfortunate that WIPO ratification is being taken as a given. (See my report of the comments of Howard Knopf from April 2002, and other documents in my consultations category). However, a solid step has been taken back from the hard-line position of the status report document. They want to create new "making available" privileges per WIPO's demand. I think that's relatively harmless because as I've claimed more or less all along, I think "making available" was already covered by existing privileges and so it doesn't really make much difference.

More importantly, they have this to say about TPMs (which are what everyone else calls "DRM" - the Canadian authorities cleave fast to their own definition of "DRM" as including the entire regime of laws and such as well as the technology):

The first two sentences sound like a big win for the good guys. The number one issue as far as the computing community is concerned is whether it'll be illegal to break TPMs for non-infringing purposes. Privilege holder groups seem to think this is about copying; it's not. What we're here to talk about, and the reason we won't shut up, is TPM protection. TPMs are attempts to enforce private law - literally, "privilege". If something I want to do that would be legal under the real law (a "non-infringing use", like watching legally-purchased DVDs on my Linux machine), suddenly becomes illegal just becase I have to break a TPM to do it (like watching legally-purchased DVDs on my Linux machine...) then the privilege holder has done something that nobody in a democracy ought to be allowed to do: they've created their own law without going through the legislative process. The above quote sounds like a promise that the Government won't create that intolerable situation. If I could believe it, I'd be very happy.

Unfortunately, in perfect Canadian tradition, they throw most of the value away in the next sentence, leaving a paragraph that doesn't even make logical sense, let alone put my fears at rest. They say that it wouldn't be legal to circumvent TPMs on sound recordings. That sentence isn't qualified to infringing purposes, and they seem to specify that at least one non-infringing purpose, namely private copying under the BML, would be illegal DMCA-style when it involved TPM circumvention. That directly contradicts the previous two sentences which say that non-infringing use will be protected.

How can we reconcile these two conflicting statements in the same paragraph? One thing we could do would be tell ourselves that the Government scribe just made a mistake and left out the "for infringing purposes" clause in that last sentence. I can't believe that, though, because their FAQ contains the same tortured construction restated in different words. The issue is at the conceptual level; it's not just poorly written prose. And since private copyright is defined in section 80 not just as allowed infringement but as not infringement in the first place, it appears that they're explicitly stating that they will allow privilege holders to punish some non-infringing use. That's a pretty seriously bad thing.

I've written before on the idea (not original with me) that privilege holders who use TPMs should forfeit their BML payments. The payments are compensation for allowing private copying; if you don't allow private copying, you shouldn't get paid for doing so. The Copyright Board has already indicated that it's willing to give some credence to that line of thinking - but instead of penalizing privilege holders who use TPMs directly, as I'd prefer, it proposes to figure out what percentage of them do that, and then penalize them all by that percentage. That's a very typical Copyright Board approach, in the spirit of the way the levy is applied at all; I'm not pleased by it, but not too surprised by it either.

One thing we can feel pretty good about for sure, though: there's no mention of "devices", or trafficking in them, in this document. So the most notorious and uncomfortable provisions of the DMCA just haven't been raised.

There actually isn't much mention of file sharing in the statement itself, but the associated FAQ suggests that there'll be a "clarification" basically to overturn BMG v. Doe. I can't really complain too loudly about that because as I said at the time, I think the BMG v. Doe verdict is founded on an untenable misinterpretation of what the law says; it's pretty clear to me that sharing copyrighted files over the Net is not really the "private copying" authorized by the BML, and I don't really object to their banning the act of Internet filesharing as long as it's clear that it's the copyright infringement, not the creation, "trafficking in", or non-infringing use of file-sharing systems, that's the banned part.

Moving on, there is a line about "the first distribution of [copyrighted] material in tangible form." I don't know what that means. The good thing it could mean would be that we'll see better recognition of the first sale doctrine. Exceptio probat regulam in casibus non exceptis, privilege holders do not have the privilege of regulating subsequent sales after the first one - so they can't stop you from selling your used CDs to the used-CD shop. Unfortunately, there's also a bad thing it could mean, which would be that "first distribution [...] in tangible form" covers things like printing out documents from the Web or burning files to CD. That could mean that privilege holders might gain a new privilege of not letting you print things out (protected beyond the way that privilege might already exist under ordinary copyright); and such a privilege would be unnecessary and pernicious.

On ISP liability: they embrace the "notice and notice regime" previously discussed, and reject automatic takedown. Big win for the good guys, as long as we can get Canadian ISPs to actually follow Canadian law and not US law on this matter. Unfortunately, there is no mention of the liability status of linking. At least they're not saying that links to infringing material definitely do infringe copyright; but I continue to hope for a definitive statement that they do not, because that's the only sensible way for the law to work, and unfortunately, with things like that it's necessary for the obvious to be spelled out. I'm also a little worried about the data retention requirements mentioned in the statement; if I run something like an anonymous remailer and then receive a notice (which then creates an obligation to keep logs), does that mean I have to shut down? There's no way I could keep logs while running an honest service, and in many cases, no way I could keep logs even if I were willing to lie to my users in cooperation with the government.

On educational and library use: they basically recognize that it should continue to be protected, although there are some worrisome things in there about "effective safeguards" which look like they're heading in the direction of mandatory TPMs. Please note: TPMs not only do not, but cannot ever actually be "effective" under the ordinary English-language meaning of that word. Another sentence I'm less than thrilled with says that "Material that may be photocopied [...] pursuant to [a] [...] blanket licence [...] would also be permitted to be delivered [...] electronically without additional copyright liability, unless the licence in question provides for such delivery." That seems to suggest that as soon as CANCOPY adds a clause to their contracts specifying terms for online delivery, any permission given by the legislation will go away - so we're back to privately written law. If Suzanne Conway is still representing them (I couldn't find her name in anything current on a quick perusal of their Web site, but it's not an easy to navigate Web site), the results could be entertaining.

The whole photograph thing isn't a big issue of interest to me. At first blush it sounds perfectly rational that photographs should obey the same rules as other artworks. I'd definitely agree with the photographers that the current rules, which are tied to the concept of "negative" and thus fail the technological neutrality test", constitute a weird and unjustifiable exception. It's been claimed that "normalizing" them would play into a sneaky plot on the part of commercial photographers, to demand (for instance) absurdly excessive privileges over commissioned school, wedding, and similar photos. The trouble is, photographers already do that under contract law and I don't see that changes to the legislative defaults will really make much difference anyway because nobody uses the defaults. The statement promises that "domestic use" would be protected, but since it qualifies that "subject to an agreement to the contrary", it's meaningless. Notwithstanding the Libertarian position of "contract law über alles", in this day and age of inequitable negotiation, you don't really solidly have rights unless you're forbidden to give them up in a contract. The real issue is standard form contracts demanding that you forfeit your rights with no opportunity to negotiate. That's also significant for software licensing, and this document just doesn't address such contracts. (See my notes from Ottawa for more on standard form contracts.)

More on educational use: we all got upset about the "publicly available material" business last Summer, when the Heritage Committee proposed that educational institutions would have protected rights to use "publicly available" material from the Web, but that Web pages were only "publicly available" when they contained notices saying that they were for public use, and the default case for material containing no notices was that it wasn't to be considered "publicly available on the Web" even if it was, well, publicly available on the Web. The current statement recognizes that we got upset about that, and puts it off to the future with a promise of a consultation process.

Similarly, the entire topic of private copying under the BML is kicked into a promised future consultation process because it's not appropriate to make changes to it at this time - except they're going to go ahead and make changes to it at this time anyway, because they're going to protect TPMs on it, remember? You may be sure that when the promised consultation process shows up, I'll have some things to say about that bit of finesse.

So, the bottom line: things are looking much better than we might fear, but we're not out of the woods yet. For any privilege holder groups or government agencies who might be reading this and have actually read down this far, I have one message that I very much want you all to understand: As far as I and the people like me are concerned, this is all about legislative protection of TPMs. This isn't about piracy or P2P or photography; maybe we've got comments on those things, but that's not why we're here. From the hobbyist and technical communities' perspective, this is all about legislative protection of TPMs. If you would give up all hope of legislative protection of TPMs, you'd suddenly make a whole lot of friends; and unless and until you give up all hope of legislative protection of TPMs, you'll have to face a lot of very dedicated enemies including all competent and ethically responsible computer scientists. You don't need TPMs anyway! They don't work! Forget TPMs!

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Government's "statement" on copyright reform

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