[d@DCC] Letter to MP Re: Proposed Copyright Act amendments
over-reach
Russell McOrmond
russell at flora.ca
Thu Nov 11 13:00:37 EST 2004
I am forwarding a letter to an MP to this list as an example for other
people to follow!
--
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
Code is Law: how software code regulates the activities of citizens,
and acts similar to law. How do we ensure transparency/accountability?
http://www.flora.ca/russell/drafts/code-is-law.html
---------- Forwarded message ----------
I license the text following to you under the license found here:
http://creativecommons.org/licenses/by-nc-nd/2.0/
From:
Randy Legault
999 Connaught Avenue
Ottawa, Ontario
K2B 5M7
<phone number omitted>
Dear Ms. Catterall:
I am writing as a constituent who voted for you in the last federal
election and who posted a lawn sign. In the next election, I will
have to reconsider. Fast-tracking embarrassing radical policy
proposals from the Standing Committee may succeed in avoiding public
awareness and debate, but it has not escaped my attention.
I am concerned that the Standing Committee on National Heritage has
not adequately considered the implications of proposed amendments to
the Copyright Act and proposes to proceed in a way that fails to
balance the rights of creators, consumers and intermediaries. I would
be pleased to meet with you to discuss the reasons why the report is
ill-conceived and is, to my thinking, an abdication of your duty to
represent your constituents and Canadians more generally (not just
publishers).
Canada's foremost academic/legal authority on copyright, Michael Geist
blames "an amazing lobby job" by the recording industry. It is a
pleasure to me to see how even lawyer can learn. Michael once
dismissed my long-held concerns in conversation as being the "fair
use" argument. Now, after thinking and writing extensively about this
issue he has come to an in-depth understanding that seems to have
escaped your committee.
This policy direction that threatens to dampen innovation and extend
unjustified and burdensome monopolies on the public. Copyright has
its place and no-one would argue that the grant of a time-limited
monopoly is an incentive to creators. However, any extension of
Copyright is an infringement on the cultural commons that is our
heritage. We are witnessing the privatization of heritage globally
through overlong and over-reaching "intellectual property" regimes --
most infamously the misbegotten U.S. Digital Millennium Copyright Act
The first huge step on the slippery slope is the ratification of WIP0
treaty.
Your committee is proposing to fall into a trap in a way that will not
balance the obvious harms to Canadian cultural heritage, knowledge
economy and innovation. I will not speculate whether this is due to a
facile understanding of the issues or, less generously from a desire
to serve established industry interests to the detriment of the public
good.
I commend the following analysis of the "consensus of the willing" report:
adapted from that of Russell McOrmond
that can be found at: http://www.digital-copyright.ca/node/view/550
1. The highly controversial WIPO treaties
http://www.wipo.int/copyright/en/treaties.htm were signed in
1996, long before most policy makers and citizens started to
understand new media like the Internet. We should move forward
including all stakeholders and not just the special interests from
incumbent industrial associations that influenced these treaties
which oppose new media. These treaties are based on extremist
policy recommendations originating out of the United States who
implemented these policies in their Digital Millennium Copyright
Act ( http://www.eff.org/IP/DMCA/ ).
2. There is no advantage and many inconveniences to changing 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 outside
situations that are similar to other creators. When a picture is
taken on my camera, absent an agreement to the contrary, I should
be the copyright holder. This is how the copyright act has worked
since cameras were invented and policy makers added photography to
the act.
3. I think that it would be a grevious error to impose a "claim and
censor" type regime for Internet Service Providers (ISPs). I
suspect that it would not stand up to the due process requirement
of the Canadian Charter of Rights and Freedoms. The onus should
be on the aggrieved party to prove on the balance of probabilities
before a court of law that content is infringing before ISPs are
ordered to remove content. Courts can issue interim injunctions
if time is the essence. What your committee proposes put
enforcement in the hands of corporate lawyers who can bully ISPs
into taking down content regardless of the expressive rights of
the poster. This threatens the free exchange of ideas that is at
the core of democratic governance and the democratic promise of
the internet.
4. The radical proposal for an "extended license" proposal is an
unwarranted extension of the economic reach of copyright holders.
The very idea of collecting royalties from educational
institutions for works received from the Internet belies a
fundamental misunderstanding of the way the Internet works. The
publishers of works on the internet should internalize the cost of
their distribution channel decisions. No-one forces you to
distribute on the internet and it is easy to charge licensing for
internet distribution without invoking a state sanctioned internet
tax.
5. Attempts to define "publicly available material", reverses the
underlying premise of copyright that is that copyright is a
noxious monopoly that is tolerated by society for economic
reasons. 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 password-free Internet. Their 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.
6. 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 copyright infringement.
7. The"extended license", collected from libraries for electronic
inter-library loan is less desirable that existing market based
solutions which do not have the very harmful unintended
consequences. No exception to copyright is needed in any of these
extended license examples, and the government has no business
imposing business models on copyright holders or their potential
customers.
8. Fast-tracking these embarrassing radical policy suggestions may
succeed in avoiding public awareness and debate. The 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
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