Sunday, February 15, 2015

Samsung, the Harper Government, and Technology Property Rights

I have found the media attention around the recognition that manufacturers like Samsung can spy on technology owners to be interesting. After decades of misunderstanding, ignoring, misdirecting or actively lobbying against owners on this issue, the media is finally reporting one of many examples of the issue.

While some are starting to discuss complex and expensive regulation to manage some of the worst symptoms of this problem, I still believe that fully recognizing and legally protecting technology property rights is the most effective solution. Unfortunately the Harper Government has thus far been opposed to property rights, so it might be an uphill battle to solve the problem in Canada.

Fundamentally the problem is that technology is obeying the instructions of a third party, rather than those of the owner. These instructions exist in the form of software, so it needs to be the owner and not a third party who chooses what software is executed on any hardware they own.

Most technology owners are not software authors, so it is not enough to protect the rights of owners to author their own software. Owners must have the right to choose software authors they trust, and be able to hire this trusted software vendor to replace the software running on their hardware. Some owners may trust the hardware vendor, and will leave the technology the same way it came. This should be their choice, not something imposed on them by the government.

We can only effectively protect our rights as long as third parties are not allowed to condition the supply of a product or service on us waiving our property rights, something that was recognized and included in our federal privacy legislation as it relates to our privacy rights.

That is 3 conditions required to protect the most basic of property rights for technology owners

  1. That owners have the right to author software to control devices which they own
  2. That owners have the right to make their own choices of software authored by others
  3. That the provision of a product or service cannot be condition on an owner waiving either of the above two rights.
For the hundreds of Canadians who already signed it, these conditions will sound familiar from the Petition to protect Information Technology Property Rights. That petition was created during the process leading up to the passage of a copyright bill, with statutory monopolies like copyright often being abused to justify direct and contributory infringements of our technology property rights.
  1. By far the largest barrier to owners authoring their own software come in the form of statutory monopolies on interfaces, including interface copyright and software patents. While there is a minority who believe that all statutory monopolies are somehow good, proper economic analysis has recognized that the harm to the economy and rights of citizens of these types of statutory monopolies greatly outweigh the alleged (but never demonstrated) benefits. Some Governments have specifically excluded interfaces from copyright protection, such as within the European Union (Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs)
  2. The right of technology owners to choose software written by the authors of their own choosing is all too often denied by device manufacturers who apply locks on devices which disable owners from making that choice. This is coupled with laws, such as the technological protection measures aspect of the Harper Government's so-called "balanced" copyright bill C-11 which many believe protects these anti-owner locks. The law should be modernized to clarify that not only are these non-owner locks not legally protected under any legislation (including, but not limited to copyright), but that they are clearly prohibited.
  3. The Harper Government's C-11 is also presumed to legally protect techniques such as encrypted media where copyrighted content is encrypted, and keys are only provided to providers of hardware and software which have anti-owner locks. This is a clear example of conditioning the ability to pay for copyrighted works on technology owners waiving their property rights, a scheme that should be clearly legally prohibited.

(Also published on the Digital Copyright Canada blog)

Sunday, January 18, 2015

Broken Broadcaster streaming websites

If you haven't tried to use them, you might wonder why the websites that Canadian broadcasters (or most often, the BDUs that own them) offer isn't a substitute for the subscription services I've been asking for.  You might ask why I would be willing to pay the BBC to watch Doctor Who when I could watch it for "free" by going to  The problem is these BDU/Broadcaster provided streaming websites are so poorly implemented that even if they were commercial free I would still prefer to pay for a working subscription service.

I have become used to well designed content distribution services like Netflix and YouTube which work well on all the devices that I own.  I prefer to watch television on my television, which means my Samsung Smart TV, BoxeeBox or Chromecasts.  I sometimes like to watch mobile with my ASUS Transformer tablet (Android), my Nexus 4 smartphone, or one of the variety of Chromebooks in our family.  The place I least like to watch television is on my desktop computer, although both Netflix and YouTube work perfectly fine on my desktop computers running Ubuntu Linux.

You also don't need to be highly technical to watch Netflix or YouTube on a television, while the contortions you have to do to watch television via legacy websites is something I'll never be able to train the rest of my family to do.

To contrast with the easy to use Netflix or YouTube services, during the recent Doctor Who season I tested on all my devices, and have only been able to view on my desktop computer.  Bell even provided an application in the Android App Store, and yet I gave up trying to watch on my Android phone or tablet given how painfully it is constantly pausing to catch up with the video.  Bell can try to blame my non-Bell Internet connection, but given I see the problem with their service and not with Netflix or YouTube it is clear the problem is with them.

This month I watched Broadchurch season 1 via Netflix, and when looking up Broadchurch on Wikipedia found that Season 2 is being shown by Showcase starting this month. I watched the first episode this afternoon.

While the Shaw provided streaming service for Showcase is better than the Bell provided streaming service for Space, I would still prefer to pay to subscribe to a properly designed service.

The Showcase website doesn't work on mobile devices as they seem to still be dependent on Adobe Flash which even Adobe themselves recognize is inappropriate for a streaming service and no longer provide for mobile or other such devices.  While Shaw Communications has some apps in the Android app store , non seem to be for accessing content on their streaming service.

I tried viewing on my Samsung Smart TV, only to have the video stop with error notices about the browser running out of memory. I only seem to be able to watch a couple commercials and a few minutes of an episode.

The website "worked" on the BoxeeBox, Chromebook and my Ubuntu Desktop, but it is painful to watch.   The video quality is low, and you can see video encryption artifacts nearly all the time. Sometimes the video would pause for a moment, but nowhere near as bad as the Bell streaming service on their Android app.

The most distracting aspect is how the commercials have been poorly implemented.  The video would pass the moment where you can tell the commercial was intended to be inserted, and then start the next scene.  You would get a few seconds into the dialog and the screen resolution would change and over a (sometimes frozen, sometimes video continuing) screen you would hear the commercial, and then finally the video from the commercial would start.  The commercial would play, and then there would either be a few more seconds of the scene from the TV episode, a blank screen, or possibly the little "loading" circle spinning in the middle of the screen.  Eventually a second commercial would manage to get loaded, and you just cross your fingers hoping you didn't loose too much of the dialog from the first scene after what should have been the commercial break.

This reminded me of the RogersOnDemand online service from years back, which also implemented commercials so poorly it made the service not worth using.

I might try to watch this season of Broadchurch on the Shaw provided service.  I got hooked on the show on Netflix, and while I would prefer to pay to access via a properly implemented streaming service, the second season isn't available that way yet.  While I understand why other people might take the third option (unauthorized download site), I will stick with putting up with a crap website or not bothering to watch at all.

When I watch television or movies, I want to get into what I am watching and not be constantly having to do technical contortions or be reminded about the poor technology platform.  This is something I've never seen done correctly by any of the Canadian broadcasters (or now the BDUs that own them).

Lets see if I make it to the end of the season before I give up and wait for the season to be released on Netflix.  I waited to watch Season 1 when it was finally made available on Netflix in December 2014, and maybe I will enjoy the series more if I wait until Season 2 is finally licensed for Netflix -- maybe December 2016?

Tuesday, January 13, 2015

Evidence suggests broadcasters like the BBC don't want our money

Some copyright holders and their lobbyists claim the reason people infringe Copyright is because they don't want to pay, and that copyright infringement is the largest single problem reducing their revenue potential. Evidence I've seen in my decades involved in the copyright revision process suggested neither are true, and that barriers put up by the copyright holders are the largest incentive to infringe and the largest barrier to revenue potential.

The BBC is an example of a broadcaster I would like to pay money and subscribe to (not only for Doctor Who), but that continues to put up barriers to me doing so. I am not a subscriber to a BDU, which is one of the common tied sales used by broadcasters. What potential customers like myself want for television and movie content is a subscription service like Netflix which isn't tied to any specific BDU or Internet provider, and which works on enough devices that it works on devices which we own. It's not just millennials that value Netflix more that broadcast or cable.

The BBC already have the technology in place, but thus far refuse to make the service available for their own "business" reasons. Within the UK the BBC iPlayer offers a streaming service that works on nearly as many devices as Netflix does (I didn't see my Boxee Box), but this service is not made available outside the UK.

There is a separate iPlayer for BBC Worldwide, but it is tied to Apple controlled devices. I have sent feedback at least once a year for a few years about this problem, and this year someone in the "BBC iPlayer (Global) Team" sent the following nonsense:

The BBC iPlayer UK and the BBC iPlayer Global are two separate entities. The UK iPlayer is available on Android and via the UK BBC iPlayer website, The global iPlayer is only available on Apple devices at this time as they are able to enforce licensing rights on a region by region basis while other providers have been unable/unwilling to enforce such actions.

In other words, Apple lied to them about the capabilities of their encrypted media platform suggesting that the restriction the BBC was requesting is possible or even reasonable. This dishonesty, as well as their total disrespect for the property rights of technology owners, are a few of the reasons why I will never be a customer of Apple. Content delivery which is tied to the use of Apple devices is effectively unavailable to me.

There are now rumors that the BBC may be removing content from Netflix. While this wasn't their latest seasons of shows, I have enjoyed viewing old seasons of shows which I didn't access in some other way closer to the air date. Given the nonsense response from the iPlayer Global team I bet out-of-touch broadcasters like the BBC are behind the recent useless attempts at geoblocking by Netflix. While this business problem created by copyright holders like the BBC can't be solved by technology, Neftlix is forced to do a bit of theater to distract copyright holders into thinking they are doing everything they can. I get the impression that Netflix as a company is more honest than Apple, and won't outright lie to copyright holders about the capabilities of encrypted media systems.

The reality is that in whatever regions the BBC refuses to make their content available in a way that returns revenue to the BBC are regions where the viewing of BBC content won't return revenues to the BBC. It is entirely unreasonable for the BBC to be putting up barrier to receiving money, and then whining when they don't receive that rejected money.

These types of barriers are typical. Copyright holders put up one barrier after another for people to access their content through mechanisms authorized by them, driving people to access that content using easier unauthorized mechanisms. While the solution to eradicating these unauthorized mechanisms has always been to reduce the barriers to the authorized mechanisms, copyright holders continue to try to pass the buck elsewhere for their self-inflicted problems.

Jan 16 update:  There are further reports about Netflix US removing Doctor Who and other BBC Programmes.

And later in the same day there were reports that Netflix Renews Deal for ‘Doctor Who,’ ‘Luther,’ More BBC Series

Friday, January 2, 2015

Legitimacy of new TV options CraveTV (Bell) and Shomi (Rogers, Shaw)

As Shomi received a lot of advertising in recent months I have been asked my opinion on it. I'm known as someone who has strong opinions on digital content distribution, and as someone who is a subscriber to Netflix and not to any traditional BDU (Broadcast Distribution Undertaking, the term the CRTC uses to refer to Satellite, Cable, and related companies).

My shortest answer is to say these these services aren't new, nor are they in the same market as Netflix. These services are an add-on service for existing BDU customers (Must be Television customer for Bell, but can be existing TV or Internet customer for Rogers and Shaw), and not a service that is untied to the BDU.

Rogers launched Rogers On Demand Online back in 2009, and I tried it back then when I was still a Rogers cable customer. I could almost watch a movie on my desktop computer with it, but it didn't work on the various devices I had connected to my television. It was a poorly implemented technology which they likely upgraded a bit for the rebranding and new marketing as Shomi, but it isn't correct to claim it is a new service.

CraveTV may be a new brand for Bell, but it should remind us all of iCraveTV which was an online BDU competitor which the BDUs lobbied the government to wipe out. Given the corruption in various levels of government when it comes to BDUs, it wasn't surprising when Bill C-11 passed in 2002. This made illegal a series of companies that were offering services as legitimate as the services of BDUs, but offering it over the Internet in a way that was Internet provider neutral.

This should remind us that we would have had legitimate Made In Canada competitors long before Netflix launched in 2008. For all the flag waiving that the BDUs include in their anti-competitive lobbying, it is the BDUs that have been consistently in the way of new services being launched. Their policy against legitimate Internet distribution of multimedia content is one of the many policy reasons why I continue to refuse to be a BDU customer.

Back in 2012 I wrote two articles on my move away from legacy phone/cable companies and a submission to the CBC where they asked "What does "radio" and "television" mean to you?.

As an update I will list the legitimate sources of television content I currently use, and the illegitimate ones I do not.


  • By far the most television content I watch is via NetFlix. This is a service that is neutral to the Internet provider I choose, and works on nearly all of the devices that I own (Samsung SmartTV, Boxee Box, Chomebook, Chromecast, Android tablets and smartphones, desktop computers running Linux)
  • Next largest source is DVD, where the copyright holders are slowly getting better and releasing faster than they previously did. While some sources like HBO wait for 9+ months to release, others like the BBC will release seasons of shows less than 3 months after the series aires on television.
  • There is some content I try to access on broadcaster sites such as, but they are poorly implemented and work on few of the devices I own. In the case of Space they even have an Android app, but it is so slow that its unusable. I am able to watch on my old desktop computer in the basement, but that is so inconvenient that I only bother for one specific show (Doctor Who). Space is one of the better sites, with other Canadian broadcaster websites being even less useable.
  • Over the Air -- we have ATSC digital tuners in our TVs, and I have an antenna for the TV upstairs. My wife sometimes watches this, but I find traditional broadcast television scheduling annoying. I have an ATSC tuner in one of my computers which I could program to record with PVR software, but I haven't found enough compelling content OTA to bother. This is available to watch breaking news if some event is happening I want to keep up on, which hasn't happened for me yet since I set this up in 2012.


  • Copyright infringing online sources -- I keep being reminded by family and friends that all the content I want to access is available online moments after it airs on television. While I haven't refused to watch content with them in their homes, I refuse this option myself.
  • Traditional BDUs -- While I have friends and family who are subscribers to BDUs, and I don't refuse to watch content with them in their homes, I refuse this option myself. I consider the traditional BDUs to be opponents to Canadian Television, as well as being in a conflict of interest when it comes to the Internet. As policy opponents I refuse to pay them money (beyond what is mandated by corruption in government through monopolies in spectrum and last-mile wires), just as someone in the executive of the Conservative Party of Canada might refuse to make large political donations to the NDP and Liberals. (Actually, I suspect the Conservatives disagree with the Liberals and NDP on policy far less than I disagree with the BDUs, but that's a conversation to have over beer).
  • Tied selling services such as Shomi and CraveTV -- these are services I believe should be considered illegal under section 77 of Canada's Competition Act. The type of market manipulation that Bell, Rogers and Shaw are engaged in is exactly the type of wealth destroying behaviour that the Competition Act was created to stop. Unfortunately I suspect that this extremely harmful illegitimate behaviour is less likely to be prosecuted than the (in my opinion orders of magnitude less harmful) copyright infringement option.
(Note: Also Posted to Digital Copyright Canada)

Update: I should have noted the announcement: HBO to offer streaming-only online option in 2015. Here is to hoping that my inevitable posting next January about this issue will include the fact I've had months of enjoyment of the HBO service.

Tuesday, January 14, 2014

For better or worse: 10 things that will be gone in our lifetime?

I was sent one of those 10 things that will be gone in our lifetime list from a family member.  There are a variety of (plagarized) versions circulating around for decades, but I decided to comment on this specific list.  Who the original author is seems to be unknown.

I consider these to be wordsmithed, politically motivated lists. One common theme is that there is various types of creative works that will "disappear" because people aren't paying. The reality is that while these creative industries are changing, people still want to pay.  Failures have been largely the fault of the incumbent industries themselves.

If there is no more for-profit music, it will be because the currently unnecessary *recording* industry kills it for composers and performers. The recording industry have been fighting a battle for decades against modern technology which makes the *recording* industry redundant, and allows all the money for the continuously commercially viable *music* industry to flow directly to composers and performers.

In the recording industries battle against the music industry they have "partnered" up with specific hardware manufacturers to try to control the industry. I put "partnered" in quotations as it is those hardware manufacturers, in their separate battle against competition, that will remain in control of the technology and thus any industry that helps it along. When you hear the terms "copy control", "DRM", "TPMs" or other such acronyms what you are really hearing about is the takeover of some part of the content industry by hardware manufacturers with the help of some insane pawn in the content industry.

Intermingled in this are some more accurate portrayals of the changes, but it is hard not to notice the politics in the commentary

1. The Post office

Package delivery is on the rise because of online shopping, and thus if a "post office" dies it is because that specific company (Canada Post in the case of Canada) doesn't change with the times -- not because we use those types of services less.  Unlike the past when these were government granted monopolies, there is now competition in these markets: which should be understood as a good thing rather than bad.

Some services must be taken away from any one company (including the historical "Post Office"), such as location labelling.  Postal codes and street addressed must become government assigned and not alleged to be owned by anyone (including the government).  There should be authorized/validated sources for this geo-spacial information, but no crown or any other copyright.  It is a serious problem that Canada Post alleges to own, control or license postal code related databases.

2. The Check

Paper checks were never a good way to accurately and safely indicate a transfer of money from one banking account to another. The underlying transaction is the same whether we indicate the 2 accounts and amount with paper or more accurately in some other way. This piece of paper has also changed drastically over the years, so the change of not bothering with the paper is minor in comparison.

3. The Newspaper

There is now competition in the news industry, whether text, audio (radio) or video.  I consider this to also be a good thing.

The discussion about an alliance with Apple/Amazon/etc is part of the hardware industry taking over a content industry I mentioned.  We shouldn't feel sorry for the old newspapers which this "alliance" will wipe out, as that is their choice to wipe themselves out.

4. The Book

Physical paper books as a medium is very than music. Recorded music has always required some sort of player, so moving from one storage medium to another is an insignificant transition, with storing the music within the player being obvious.

Printed books only need your eyes and brain, and physical/portable/transferable/cheap paper as a medium has advantages over comparatively expensive digital readers. Until digital readers become so cheap that you don't worry about them getting wet at the beach, lost in the sand, or loaned/given away to other people, paper books will always be around.

It is possible they won't be as common given there are alternatives.

5. The Land Line Telephone

The commentary is outdated and/or very US centric, as most cell plans I've seen also have a "local" calling zone and some (like WIND, which I use) doesn't charge minutes any more.

The general theme I agree with: I consider the land-line at my residence to be my wife's phone, and I don't ever answer it. It would have been gone years ago except my wife wants it.

That said, I don't use my mobile device as a "phone" very often.

6. Music

Music is not going away, and the negative aspects discussed are entirely the fault of the recording industry and not so-called "illegal downloading".

It is the "Star System" promoted by the recording industry that is making it harder for newer artists -- the recording industry sees new music as an expense and competition to the existing recordings they hold copyright to.

7. TelevisionRevenues

Television Networks and BDU's (Broadcast Distribution Undertakings, like cable and satellite services) need to be thought of as services to get entertainment to audiences. Like the horse-shoe industry declining with the growing automobile industry, these outdated technologies eventually get replaced.

The important change is the business model which is transitioning from advertiser paid (where the customer is the advertiser and the product is the audience) to audience paid (where the customer is the audience and the product is the creative content). This transition proves many of the others like the claims about the music business false: people are and continuously demonstrate a willingness to pay for content, if only the outdated middle-men got out of the way and allowed people to pay.

I consider this a positive transition for both audiences and the creator industry.  Rather than the lowest-common-denominator garbage that advertisers prefer,  smart and more audience focused scripted programming will gain better funding with audience-pay models.  Broadcast television had so few good shows on, and there is orders of magnitude more good scripted shows on services like Netflix than was ever accessible through broadcast.  Some of my favourite new shows are Netflix originals.

There is no BDU in our household, and I get my video content online through Netflix, broadcaster websites like , and through DVD/etc purchases.

We have a digital over-the-air antenna and tuner on one TV, but beyond watching broadcast for the few months after ditching cable it hasn't been used in over a year.  It sits there ready for some potential (but unlikely) eventuality where we may want to watch some local live broadcast.
I've watched statistics, and have been surprised at how slow this transition (often called "cutting the cord") is happening in Canada.  

There are many things slowing the transition down, including misguided creator unions (actors, performers, writers, etc) trying to add inappropriate regulations to non-broadcast delivery mechanisms.  Like their participation in the "copyright" debate when it comes to compulsory licenses and "technological measures", these unions lobby at the CRTC and elsewhere in ways which greatly harm the economic and other interests of creators (the folks they claim the work for).

8. The "Things" That You Own

For this one the author missed the transition entirely, and demonstrates a lack of sophistication. While people used to say that *posession* is 9/10ths of the law, this isn't the case.

Whether you physically posses a CD, DVD, laptop, tablet, phone, etc doesn't determine whether you *own* it, or what you are legally allowed to do with it.

Hardware manufacturers, using the content industry as pawns, has been transitioning hardware from a model where the owner is the person who possesses the hardware to where the manufacturer is the owner. The intent is that you will not own anything from the medium (CDs) or devices (computers, etc), even if they are physically in your home and held in your hand. It will be illegal for you to do anything with these things that you don't first get permission from the owners, which are the manufacturers.

Cloud services have little at all to do with this, and in fact the largest of the cloud companies (Google) is often (but not always) on the side of good in clarifying that what you have in your possession is your and what is elsewhere is not. Apple, Sony and Microsoft -- the worst three opponents to technology property rights -- have been lobbying for years to ensure that you don't own what is in your possession/home any more than you own anything in the cloud.

9. Joined Handwriting (Cursive Writing)

Agreed, although like other mechanisms to communicate that change over the centuries I don't consider this to be a large problem.   Most of us can't write or read hieroglyphs, logograms, or other such pictorial representations of concepts.  Joined handwriting is also a very geographically focused writing method, and it makes sense for such things to go out of style as part of globalization.

10. Privacy

Concepts of privacy are changing, and there are threats, but we don't all agree on what privacy means and who we wish to be private from.  I don't consider Google Street View (including the collection of broadcast WiFi information) to be invasive of privacy as I considered all of the things it collects to be public.

I have serious problems with so-called "lawful access" legislation which seeks to allow governments access to communications networks and devices.  Police forces and governments are made up of people, and the percentage risk of law-breakers or even terrorists being within the police or government will be similar to the outside.  It is simply naive to blindly trust police forces in the pursue of blindly mistrusting the general public, and we should always ask about ulterior motives and/or competance of policy makers promoting these types of policies.

I have serious problems about attacks on technology property rights, given the best way to protect our privacy and other rights is if private citizens can own and control the technology they use to communicate with each other.  It is not GPS or Street View that people should be concerned with, but Apple iOS, Amazon Kindle's and other such non-owner controlled devices and the laws which protect these rights-infringers from citizens.

Wednesday, October 16, 2013

Doctor Who fans must wait or be forced into an "infringe or be infringed" decision by BBC

The following is a comment I added to a Kasterborous editorial: iTunes, BBC? Really?

This is not a question of money for me — I have spent $thousands$ in recent years on my love of Doctor Who, and I’m more than willing to pay extra to get early access to these episodes before the DVD’s come out. Unfortunately BBC didn’t give me that option, so I will need to either wait for the DVD’s or get the episodes from an “unauthorized” source.

I am not a customer of Apple, nor will I ever be. I’ve spent more than a decade of my life as a political activist in support of IT property rights. As I discussed in a recent submission to the Canadian government on this issue , Apple is one of the worst infringers of IT property rights. They also actively lobby for legalizing and legally protecting infringements of IT property rights.

While Apple is a direct infringer, inducing people into infringing situations puts the BBC in the same league for those of us trying to protect these property rights as ISOHunt and PirateBay does for copyright infringement.

I agree it is great news that these stories were found, and great news that the BBC decided to make individual episodes available before they have completed the DVD sets. It is clearly bad news that they decided to make an exclusive distribution deal with such a highly controversial company.

I can understand people who may opt out of allowing their own property rights to be infringed, and instead infringe the copyright of others — DRM has never reduced copyright infringement, and in nearly every anecdote I have heard of has encouraged people to infringe copyright.

BTW: The “International” iPlayer is a similar failure by the BBC. Having this be Apple infringing devices only excludes those of us who use computers that are owner-secured rather than controllable by third parties. I am more than willing to pay a subscription fee to access iPlayer in Canada, but BBC hasn’t yet offered that to me at any price.

We live in a time where the importance of cyber-security will be increasing, and yet all these direct (by apple) and contributory (by BBC) infringements of IT property rights only decreases security by creating back-doors where non-owners control computers.

Sunday, June 16, 2013

Why is a license required for a Canadiana project built from public domain material?

I was asked in a comment why the CRKN announcement about the new collaboration with mentioned Creative Commons licensing.

Short answer:

What is in the public domain stays in the public domain.  What Copyright restricts, this project will be releasing under a Creative Commons license.  It is copyright law which defines the line between the public domain and what must be licensed.

Longer answer:

I am a system administrator at Canadiana, and not someone involved in policy relating to licensing of the parts of this project that will be covered by Canadiana copyright.  When it is a Canadiana decision, it is our Board of Directors made up of librarians and archivists, and our executive director, who ultimately are responsible for such policies.

As someone who has spent more that a decade dedicated to Copyright related policy discussions (see Digital Copyright Canada), and been involved in the Free Software movement since the early 1990's, I have my own opinions -- but they are my own and not those of Canadiana.

A work that is in the public domain in Canada is something which has fallen out of Copyright. For most things that is life of the author plus 50 years.  We have researchers at Canadiana that work on determining the author of works we wish to scan and a database of the deaths of authors to help with the public domain determination.

Copyright term extension has unfortunately been threatened by the federal government many times.  This sometimes comes in the form of treaty negotiations such as the Trans-Pacific Partnership (TPP) and the Canada-Europe Free Trade Agreement (CETA), with our trade representatives never adequately pushing back on calls for term extension.  In some countries term extension has even re-regulated works that were already in the public domain.  This is a risk of any project like ours given we rely on the public domain to be allowed to make the scans in the first place.

In order to scan for this project Canadiana or LAC essentially take photographs of the books, papers, and other articles being preserved and made accessible.  Then the photograph is digitized (sometimes from film previously taken, and sometimes more directly as part of the book/paper scanning process).

It is unfortunately a matter of debate whether a photograph of something which is not restricted by copyright has its own separate copyright held by the photographer. This ties into the debate about sweat of the brow vs originality.  While there are some professional photographers and their unions who believe that all photographs should be restricted by copyright, regardless of subject matter or originality, I believe most Canadians (including many lawyers reading some of  the relevant caselaw, which helps) would disagree.

To avoid being dragged into this heated debate, and to protect against future changes to copyright law, a license provides clarity even for those who wish/believe the photograph has its own new copyright.

If the decision was mine (note: it's not -- talk to your Librarian :-) any license on the photographs and resulting scans would be CC0 which is a method to try to put a copyrighted work as closely to the public domain as domestic law allows.  This avoids the question of whether a public domain dedication is possible in Canada by providing a back-up license.

Scanning is only part of the process, and not the part that takes the most resources.  Researching metatata about the images so that there is something to search on creates a new database.  All this metadata is considered new works under Copyright, and thus a license is required.

There may in the future be crowdsourcing of metadata, and legal clarity will be required there as well. I'm personally a fan of joint-copyright assignments or copyright waivers (CC0 style) for projects like this to allow the non-profit (in our case charity) project to enhance licensing over time.

There are plans, if funding comes together, to transcribe some of the handwritten papers.  More than the photographs there is a presumption that the transcriptions would have their own copyright, so licensing is required.

Hope this helps... I wish copyright weren't expanding all the time, but as it does there is an increased need for licensing where previously copyright wasn't relevant.  The scope and term of copyright is expanding at the same time as exceptions (such as fair dealings) is largely being diminished globally.  There were some minor fair dealings gains in Bill C-11, but there were far more losses.  Canadian copyright law will also be manipulated by Bill C-56, the bill allegedly dealing with counterfeit materials where most of the controversy is in the unrelated copyright aspects.

Note: Being part of the Free Software movement I prefer the subset of Creative Commons licenses which are similar to those we use.  I have never liked the vagueness of the so-called "Non Commercial" (NC) clauses, and thus them and have a preference for CC0, CC-BY and CC-SA.  With the definition I use for "open access" this is what is required, and don't consider works licensed with a ND (no-derivatives) or NC to be "open access".  But, as with many things, different people use different definitions.