Transcript Powerpoint - Russell McOrmond

Bill C-61 & Copyright Law in
Canada
Putting the Internet Genie back in bottle?
Discussion host: Russell McOrmond
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Involved in Free Software movement since 1992
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Self-employed consultant since 1995
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Canada-DMCA-Opponents started in summer 2001
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Host for Digital Copyright Canada
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Co-coordinator for GOSLING: Getting Open Source
Logic Into Governments
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Policy coordinator for CLUE: Canada's Association
for Open Source
Summary
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A little bit of Copyright history
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What recently changed?
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What would a good response look like?
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What was the response?
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Election 2008
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Open discussion – the real point of the evening!
Standard Disclaimers
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IANAL (I Am Not A Lawyer)
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TINLA (This Is Not Legal Advise)
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While my passion is law and public policy, my
formal background is in technology
If I use acronyms which aren't clear, please
interrupt and force me to clarify
Tiny bit of Copyright History
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Copyright was invented after the advent of the
printing press (Johann Gutenberg in ca. 1439)
Charles II of England passed the Licensing Act
of 1662
British Statute of Anne (1710) suggested rights
of the author
Berne Convention accepted in Berne,
Switzerland in 1886. Became WIPO treaty #1
when WIPO founded in 1967
Canada's first Copyright act in 1921, was UK
New technology: sound recording
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In a submission to a congressional hearing in
1906, composer John Philip Sousa argued:
“These talking machines are going to ruin the artistic
development of music in this country. When I was a
boy...in front of every house in the summer evenings,
you would find young people together singing the
songs of the day or old songs. Today you hear these
infernal machines going night and day. We will not
have a vocal cord left. The vocal cord will be
eliminated by a process of evolution, as was the tail of
man when he came from the ape.”
Government response to sound
recordings?
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Since most composers were not willing to give
permission to record, many governments
stepped in with a “compulsory licensing” system
Under compulsory licensing a composition
could be recorded without permission, as long
as a government set royalty rate was paid to
composer
Note: Canada had such a system in the past,
but it is no longer needed as composers license
their works
Compulsory licenses in Canada
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Compulsory license for performers and makers
of sound recordings for public performance and
communication by telecommunications (s.19)
Retransmission (cable television, but not “new
media”) (s.31)
Private Copying of sound recordings (s.79 s.88)
New technology brings new
exclusive rights
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Performers and sound recording makers given
new “neighbouring rights”
Recorded music has 3 classes of copyright
holders: composers, performers and “makers”
Broadcasters given copyright in their
broadcasts, layered above the copyright holder
of the underlying content
New technology: VCR
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Jack Joseph Valenti, president of the MPAA,
told a congressional panel in 1982:
"I say to you that the VCR is to the American film
producer and the American public as the Boston
strangler is to the woman home alone."
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Court response?
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984) clarified that time shifting is Fair
Use
USA's Fair Use
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Copyright Act of 1976, 17 U.S.C. Section 107
“fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords
or by any other means specified by that section,
for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not
an infringement of copyright.”
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Criteria: (non)commercial, nature of work,
amount used, market effect
Canada's Fair Dealings
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“Fair dealing for the purpose of research or
private study does not infringe copyright.”
“criticism or review” and “news reporting” (w/
attribution)
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Does not use phrase “such as” or “including”
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No motive of gain (commercial)
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Institutional exceptions for educational
institutions are outdated as education is not
confined to specific institutions.
New technology: personal
communications devices
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Cost of communications technology dropped
such that average citizens can own
Copyright law set up for a time when capital
costs meant that the only people who could
infringe copyright were commercial entities
Incumbent copyright holder most often refusing
to license socially beneficial uses of existing
work. We have all heard the references to the
word “theft” to talk about everything from music
P2P to YouTube
A historically consistent response?
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Use compulsory licensing and/or clarifying Fair
Dealings (expanding to fair use) to enable
socially beneficial uses
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Adopt living Fair Use, and further clarify that private
time, device, and format shifting are fair, including
“truly private” copying of multimedia
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Adopt compulsory licensing for public on-demand
and P2P (Songwriters proposal), mashups, user
enhanced content (YouTube), etc
Actual Government proposals thus
far
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C-61 carved performers and makers out of s.19
compulsory licensing for on-demand
communication (permission now clearly
required, and permission not often granted)
Legal protection added to “technological
measures” which lock down content and
devices against interests of citizens
Add clarity to Fair Dealings that technological
measures and contracts trump fair dealings in
many cases (opposite to US DMCA which
clarified that TMs do no remove Fair Use)
Understanding
“technological measures”
There are 4 things in my hand: tool for understanding technical measures
All 4 have owners, all 4 can have “technical measures” applied to them
1) Medium: CD's, DVD's,
sometimes nothing (downloads)
3) Hardware: CD/DVD players, TV,
phones, computers, cameras, ...
2) Content: music, movies,
text,software, ...
4) Software
Medium/Content
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Content is passive, and can not make decisions on its own
Content can be manipulated in various ways to accomplish
various goals
Cryptography: convert ordinary content (plaintext) to
gibberish (cyphertext). Used for confidentiality, integrity,
authentication, signatures
Watermarking: embed information in other data. May be
visible/invisible, used to identify data, confidential message
At the other end of a “download” is a (hopefully) secured
computer/network
Hardware/Software
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Hardware simply follows instructions in the form of
software, and is where any “decisions” or other activity
happens. Who chooses software controls hardware!
Computer security is all about ensuring that only
authorized software runs, or that only authorized persons
are able to run software
Authentication: Something you have (ID card, key),
something you know (password), something you are
(biometrics)
Data stored within hardware (disk drives, flash memory)
can be secured as with any other content
How did we get where we are?
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1994/1995 US National Information
Infrastructure, Working Group on Intellectual
Property Rights
NII Copyright Protection Act of 1995
1996 WIPO treaties: WIPO Copyright Treaty
(WCT), WIPO Performances and Phonograms
Treaty (WPPT)
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1998 USA DMCA
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2005 C-60, 2008 C-61
Where are we going wrong?
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Consultations leading to NII, WIPO treaties,
DMCA and C-60/C-61 included only (or was
dominated by) incumbent stakeholders
Incumbent stakeholders not concerned about
good public policy or interests of
creators/citizens, but about protecting their
existing businesses from change/competition
Recent changes in technology created entirely
new stakeholders who are not adequately
represented in policy discussions. Governments
largely “representing” industry, not citizens.
Election 2008
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Individuals important, not parties
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NDP is best example
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From 2001 to 2004 the critic responsible for
copyright from the NDP was journalist, playwright,
and writer Wendy Lill.
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author, broadcaster, editor, journalist, musician,
negotiator, and singer Charlie Angus elected in
2004
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Party flipped from being lock-step with incumbent
industry to being best ally in parliament
We need at least one Charlie Angus in every
party!
Questions of candidates
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Asked Candidates in: Kitchener – Conestoga,
Kitchener – Waterloo, Kitchener Centre
“Imagine a bill which said that car owners who
wish to use public roads are no longer allowed
to drive themselves, or choose their own
drivers...
Do you believe that this is an appropriate
response to copyright infringement, or any other
unlawful uses of information technology?”
Your Candidates
Conservative
Green
Liberal
NDP
Kitchener Centre
Kitchener – Conestoga
Kitchener – Waterloo
Stephen Woodworth
John Bithell
Karen Redman
Oz Cole-Arnal
Harold Albrecht
Jamie Kropf
Orlando Da Silva
Rod McNeil
Martin Suter
Peter Braid
Cathy MacLellan
Andrew Telegdi
Cindy Jacobsen
Kyle James Huntingdon
Ramon Portillo
Amanda Lamka
Jason Cousineau
Mark Corbiere
CAP
Communist
Libertarian
Independent
Responses?
(silence is deafening)
Did you hear from them?
What will your response be?
Links
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http://digitalcopyright.ca
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http://www.faircopyrightforcanada.ca/
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Includes Kitchener-Waterloo Chapter
http://www.onlinerights.ca/
http://www.musiccreators.ca
http://www.appropriationart.ca
http://www.cippic.ca http://michaelgeist.ca