Thursday, December 14, 2017

We wouldn't even be having this conversation if it was cars rather than computers!

Section 92 of Canada's copyright act indicates:

Review of Act

92 Five years after the day on which this section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act.

1997, c. 24, s. 50; 2012, c. 20, s. 58.

On December 13'th the following was included in a motion by Bardish Chagger Leader of the Government in the House of Commons and Minister of Small Business and Tourism:

(c) the Standing Committee on Industry, Science and Technology be the committee designated for the purposes of section 92 of the Copyright Act; and

This indicates that in the new year that the INDU committee will be reviewing the Copyright Act.



I was actively involved in the process last round.  I joined the process in the summer of 2001 when I heard that Canada was contemplating adding "technological protection measures" to our Copyright Act.  Software authors already understood the harm from the anti-circumvention aspects of the USA's Digital Millennium Copyright Act (DMCA).

In an earlier article I discuss a layered model for road transportation, and that "technological protection measures" (TPMs) are actually a restriction on who is allowed to drive (IE: author software for), or choose drivers for, communications technology.

While I don't have a drivers license or drive a car, I have been driving computers since 1981.  The rights of computer owners to drive their own computers, or choose their own drivers if they don't have the skills themselves, should be understood as fundamental a right as driving automobiles already is to the rest of society.


I had to get involved in this policy discussion, even though it never made sense to me that we were even having the discussion.  I acknowledge that technology, whether transportation or communications technology, can be abused in breaking the law.  While this has always been true of vehicles, there has never been a serious policy discussion about disallowing vehicle owners the right to drive their own vehicles, or disallow them to choose their own drivers if they didn't have those skills.   The only reason we were having this conversation is because policy makers, similar to the general public, lack adequate literacy on communications technology which we all take for granted for transportation technology.


While the section 92 review was announced in the summer of 2001, it wasn't until October 2003 that submissions were due.  My first formal submission to that process is available through my website.  In the summer of 2001 I started a discussion forum called "canada-dmca-opponents" which grew into the Digital Copyright Canada website.


I spent considerable time from 2001 through the passage of Bill C-11 in 2012 active in that area of policy.  This included only accepting part-time jobs so that I could participate.  When I started my current job in 2011 I only accepted an 80% contract so that I could attend every Bill C-32 and Bill C-11 committee meeting.


While my focus was on the rights of technology owners, false claims were often made about my views on copyright.  It was frequently suggested that if I was opposed to TPMs, the only possible reason could be because I didn't believe authors should get paid.   As a software author myself this was a ludicrous suggestion, and yet even some of the most sympathetic journalists would falsely claim I was an "anti-copyright crusader".

This would never have happened if we were talking about cars rather than computers.  Someone claiming that the only reason someone wants to drive their own car is because they wish to break the law or are a criminal would be appropriately laughed out of the room.   Unfortunately when it comes to technological measures, few recognize just how ridiculous it is.


It took me years to realize just how low technology literacy is within policy circles.  Most of the conversations about TPMs come from the belief that it is something applied to copyrighted works, and that these measures allow decisions to be made (can copies be made, under what conditions, etc).  This is similar to believing that a paperback book is sentient, and can come alive and autonomously run away if the reader of the book tries to do something the book doesn't like.  I have come to refer to this as the "Harry Potter" understanding of TPMs.  While purely based on fiction, this is the most common misunderstanding of TPMs.

If we were talking about cars rather than computers, people with such a low literacy of the relevant subject matter would not be considered experts or be allowed to dominate the debate.


I wish the review of the Copyright act would be about Copyright law.

I've learned quite a bit by speaking with fellow creators and creator groups, and have knowledge of the wide variety of market changes each group is facing.  In nearly all cases there are legitimate changes in which intermediaries are involved in the relationships between creators and their audiences.  While there are many intermediaries crying fowl at these advancements, the vast majority of the changes I've observed are positive for creators and should be encouraged.  In many cases when there are infringements, these are infringements induced by the harmful business practices of specific intermediaries: they are infringements that could be handled with an "inducement" regime for contributory infringements, rather than the incorrect focus of the "enablement" policy that was added as part of C-11.


I am forced again to focus on TPMs this round of Copyright Act review.  While it may be true that some copyright holders use TPMs, it has no more place in Copyright law than a National Energy Program has simply because some copyright holders use electricity.

I look forward to a future when the Copyright Act only has Copyright related provisions in it, and we can finally have a proper conversation about modernizing copyright law that isn't tainted by being dominated by non-copyright related discussion.

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