September 2001

Suggestions for Copyright Reform

Preamble

The paper "A Framework for Copyright Reform", issued by the Intellectual Policy Directorate, and posted on the Government of Canada web site at: http://strategis.ic.gc.ca/SSG/rp01100e.html mentioned the need to consult Canadians on the next round of copyright reforms. This paper contains the direction that Copyright reform should follow.

I am a small business owner. I write software, particularly "Open Source" software. On one hand I depend on copyright law to protect my software from abuse; on the other hand, any impediment to the flow of information reduces my effectiveness and the competitiveness of my products. My business depends on my skills and requires that I keep them up to date. I advocate the necessity of copyright to protect my work, but the Canadian government must minimize the duration and strength of copyright law to keep my costs low and competitiveness high.

Here are the issues this paper will address:

• Sui Generis database copyright can not be allowed
• Copyright law should not extend beyond the act of copying
• Internet service providers should not be liable for content
• Copyright duration should be reduced
• Children should NOT be trained in corporate copyright agenda

Introduction, Copyright is a Tax on Society

Copyright law is a very subtle and balanced legal regulation. Copyright does not guarantee authors perfect control over copyrighted material. What it does is balance a certain incentive for authors to produce works against certain public rights of access, and those are typically enforced through a fair-use doctrine but also through requirements that copyright be a for limited time period.

Canada's copyright laws must stay grounded to the original intent of copyright: societal benefit. There is no intrinsic good about copyright, it is merely a necessary price for improving society. This balance must not be forgotten despite the sea of constant corporate lobbying that insists copyright is a material property right. We must remember that corporations exist to make money and therefore, by definition, are motivated by profit. The desires of corporate copyright holders should be viewed with this in mind, as they often fail to consider the benefit of society.

Society uses copyright as tool to better itself; either in art or science. Copyright has both benefits and costs. The discussion over whether these benefits and costs are in balance is beyond the scope of this paper.

The benefits of copyright are well covered in a multitude of other works. The wealth generated by a copyright holder is concentrated in a single company or person. It is easy to measure the benefit copyright has given them. Lobby groups promoting expansive copyright reform have an easy time producing numbers showing the profitability of copyright.

Instead, this paper concentrates on the awareness of costs of copyright. Every piece of copyrighted work subtracts from society's wealth and bestows that wealth upon the copyright holder, providing monetary motivation to create new works. The copyright tax is defined as the costs incurred by society to support copyright.

The copyright tax includes monies paid by society to the rights holder. Copyright is a form of societal charity. Any future change to copyright law should increase the benefit to society and not necessarily just the copyright holders.

The copyright tax on society is hard to see. Canadians must be diligent when identifying the copyright tax on society. The copyright tax is spread over many people and in many ways. This tax on society can be seen, in one form, when the poor are denied access to copyrighted information because it is guarded by high licensing fees. This is an information age; information is transmitted in copyrighted form, and copyright can often act as a barrier to those with less money.

There must be government spending (a monetary tax) to ensure that the public, primarily the poor, have ready access to information. This means more transfer payments all the way to municipal governments to ensure the infrastructure exists at libraries to provide this copyrighted information free of charge.

Sui Generis Database Copyright can NOT be Allowed

On March 11, 1996, a sui generis protection of databases was passed as the Directive on the Legal Protection of Databases (Directive) by the European Parliament and the Council of European Union. This copyright protection does not require originality in the ordering or content of a database; it restricts every possible form of information. This is the gravest of copyright tax; it effectively restricts information, no matter the form, to only those who are rich enough to pay.

To better understand why Sui Generis Database Copyright can not be allowed we must delve into the relationship between information and copyright law: Consider the example of a book, created by an author, covering Canadian immigration laws. To a reader the information in this book may be quite valuable, both the research into the statistics and the professional interpretation of the consequences of Canadian laws. Unfortunately, people must pay a copyright tax to the author in order to receive this valuable information.

One method that allows for the liberation of information is the fact that copyright has always depended on form, and not content. Although the book is protected under copyright, the information portrayed in the book is not. The information in the book can be represented in many different ways, delivering the same information but in different forms. The information in the Canadian immigration book continues to be available to all members of society through critiques and summaries. However there are costs associated with each of these and each can miss important nuances of the original book. The information contained within the book can not be released without paying a tax of some sort.

So we conclude that one of the many taxes society must pay for copyright is the impediment of information flow. Information is transmitted in copyrighted form. Any unique collection of bits, glyphs or signals has automatic copyright under copyright law. This symbolism is the medium upon which information travels and is stored. Therefore copyright law has a direct impact on the dissemination of knowledge in our society. Restrictive copyright practices slow the flow of information, reduce the effectiveness of our work force, reduce the expertise of our graduates, and widen the gap between the rich and the poor.

The nature of databases is that they represent all forms of a particular knowledge domain. By preventing others from retransmission or storage of any part of a database acts as a lock to the entire knowledge domain. We cannot allow such information locking to happen. The price to society is too large and the benefit to copyright holders does not compensate. In order for Canadians to be competitive in the knowledge economy, the flow of information cannot be restricted; sui generis database copyright can not be allowed.

Copyright Law should not Extend Beyond the Act of Copying.

The proposal to prevent the circumvention of technologies used to protect copyright material must carefully drafted. The Digital Millennium Copyright Act (DMCA) of the United States is an attempt to do just that but has been poorly worded.

The negative effects of poor drafting are already visible in the case of Russian graduate student, Dimitry Sklyarov. Mr Sklyarov made a presentation on a security flaw in Adobe's e-book software. He was arrested under Title 17 United States code, Sections 1201(b)(1)(A) and 18 U.S.C. Sec. 2 and held without bail for three weeks and now awaits trial. A 16-year-old Norwegian boy, Jon Johansen, helped design the software for a DVD player for Linux. The software did NOT increase the ease of making illegal copies, however, Jon and his father have been indicted in their home country. Princeton Professor, Edward W. Felten, wanted to make a presentation on the ease of breaking some watermarking technologies, however he was silenced by threat of heavy legal action. Professor Felten is currently fighting for his First Amendment rights in the courts. In Professor Felten's own words: "Studying digital access technologies and publishing the research for our colleagues are both fundamental to the progress of science and academic freedom, The recording industry's interpretation of the DMCA would make scientific progress on this important topic illegal." None of these three individuals intended to break copyright law. All three of these individuals did get the attention of ill-mannered corporations trying to protect their ill-conceived technology. The US has become a dangerous place for cryptography experts, reverse engineers and their research. The criminalization of these two fields have made professors and researchers wary of entering the U.S. for fear of arrest by the FBI under the control of corporate interests.

Cryptography is Good

There are a large number of cryptography experts in universities and business. Cryptographers work on the theories behind encryption and decryption of symbols. It is imperative that these individuals are allowed to continue their work, as their benefit to society is enormous. Good encryption provides personal privacy, improves national defense, helps maintain trade secrets and proprietary information, and can be used as a platform for e-Commerce. The simple statement, taken from A Framework for Copyright Reform, such as "preventing the circumvention of technical measures aimed at limiting access to or reproduction of works" is too broad and criminalizes the acts of cryptographic researchers. It is of paramount importance that the INTENT TO COPY is included in copyright reforms to distinguish a dishonest act from simple research. The criminalization of cryptographic work will stunt development in the cryptographic field and result in substandard cryptographic protection.

Reverse Engineering is Good

Reverse engineering is a legitimate and necessary method of improving society. Reverse engineering is a form of learning; understanding how things work by taking them apart. Competing companies reverse engineer each other's products to catch up and maintain a beneficial competitive atmosphere. An example is the IBM clones of the early '80s. Reverse engineering allowed companies like Dell and Compaq to exist. It allowed the personal computer revolution and ultimately the creation of the Internet. IBM was able to adapt; reducing its focus on the PC market and using the patent system to making money off patents licensed to competing companies.

Reverse engineering is helpful for establishing system interoperability when dealing with uncooperative or unknowledgeable vendors; understanding their product so that other business systems can communicate with it. The Open Source community uses reverse engineering to maintain compatibility with Microsoft's undocumented specifications: this allows the community to create free software which is compatible with Word and Excel documents.

Copyright law was born from the desire to enrich society by eventually returning all artistic works to the public domain. The illegalization of reverse engineering allows for copyright holders to build cryptographic shells around their copyrighted works and their trade secrets. The copyright holder can feel safe knowing that attempts by others to circumvent these shells would constitute an offense. There would be no need to apply for patents or ever release a work back to the public domain; a cryptographic shell provides much better protection. The irony is that the encryption will be sub-standard and the only true protection is the threat of litigation. The government will have to take an active role (another tax) to ensure that material in these cryptographic shells will be available once the copyright expires.

Without reverse engineering society will never seeing the benefits of innovation, society will continue to pay a tax to use protected products, and society will shoulder the cost of extra litigation. Society, under the burden of these penalties, loses completely.

Internet Service Providers should Not be Liable for Content

Internet service providers (ISPs) are simply providing an information transmission medium. This medium should be compared to other analogous mediums, like the postal and telephone services. The telephone can be used to transmit information via fax. The fax's sounds are carried over the telephone lines to the receiving fax. The content of the fax is up to the human, the telephone company is not held liable for the content of faxes. The postal service carries packages and letters. The postal service is not held liable for delivery of infringing works. Both the postal service and telephone systems are mediums, and are never held liable for the content they carry.

The new Internet medium needs physical connections and servers. ISPs simply provide the hardware to provide the medium. ISPs should not be held liable for content. Some ISPs also provide web-hosting services. These hosting services should also be seen as simply a medium, albeit a static medium. Paper is a static medium yet the pulp and paper industry is not held liable for the content that can be found on the paper it produces. ISPs providing web-hosting services should not be held liable for content.

Copyright law has always held the producer liable for copyright infringement. In the case of an infringing fax, the producer is held liable. In the case of mailing an illegal copy of a book, the producer is held liable. In both cases the telephone company and postal services are not held liable for carrying illegal material. Copyright law should stay consistent with current practices and hold only the producers liable for content.

Allowing ISPs to be liable for content, has severe freedom of expression implications.

The primary concern of most ISPs is to generate profit, and are not focused on protecting freedom of expression. If a third party threatens legal action based on a customer's content then the customer's connection will be quickly severed, saving a costly legal battle. In the ISP's perceptive the content is irrelevant and its legitimacy need not be questioned. Of course it could be argued that the customer could threaten the ISP with further legal action but then we would have two legal battles instead of one. For the sake of efficiency, the customer and the threatening third party should engage each other directly; the ISP is just a medium.

I do not intend to imply that ISPs be allowed to have a completely hands off approach. ISPs should work with the police and other third parties to track down the copyright infringement producers.

Copyright Duration Must be Reduced

The current copyright duration of "life plus fifty years" is an incredibly long time and should be reduced, not increased. Society is being far too generous. The only groups that can possibly benefit from increasing the duration of copyright are the uncreative corporations and the grandchildren of long dead starving artists. These two groups would like to have MPs believe that infinite protection is what is really required. Consider the lobby group when weighing the message: Do they create new works, or do they just use the spoils of long dead artists? Have they already profited from the works they produced? Are they avoiding the cost of creating more?

The duration of copyright should be based on a logical framework and not be an arbitrary number decided by lobby groups. When considering duration of copyright, one must consider the potential market that the duration defines. The potential market must never be infinite or else we have a situation where finite work results in infinite profit. Similarly, infinite copyright duration can not be supported by society because the concentration of wealth is too extreme. Current copyright law recognizes that infinite duration is not good for society.

I propose that the potential market for any work be limited to the population existing at the moment of copyright or creation. It is wrong to inflict our unborn children to the copyright taxes. No one has the right to expect payment from future generations. We are trying to make the world a better place for our children, we should not be burdening them with copyright taxes before they are even born.

Of course the logistics of tracking the existing population for every copyrighted work is too complex. So instead we choose a duration that best approximates the current population: a generation, or 25 years. Any copyright duration greater than a generation will force future children to pay the copyright tax. We can see this understanding behind patent law where durations are less than 25 years.

The current 50 year copyright duration forces society to pay a double copyright tax on a single work. The first round of taxes go to the existing population. The second round of taxation goes to their children. This additional taxation is what I call the Generational Copyright Tax. In the case of Snow White, Disney makes money by selling the movie to children, and then to their children's children; a potentially perpetual market made larger by longer copyright duration.

The proposal to extend copyright duration to 70 years will force a triple taxation. We will be taxing the initial population, its children and its grandchildren. The generational copyright tax should not be allowed.

I suggest a copyright duration of "life or 25 years, whichever is greater". The 25 years prevents corporations from inflicting the generational copyright tax and needlessly pillaging societal wealth. The life duration allows for individual creators to profit from their work for the rest of their life. Individuals are further protected so that work developed late in life can be passed on to children that might need the income.

The reduced copyright duration will spawn creative output. As long as Mickey Mouse and Snow White are kept from the public there is no incentive for Disney to create new art to replace the "cash cow". As long as grandchild of long dead artists can collect royalties from our generous society they will not have incentive to go back to work or create new art.

Reduced copyright duration will not have a negative impact on corporate profit. Consider the proportion of movies or books that make the bulk of their gross income during the first few years of release. The bulk of the profit from a creative industry comes from the release of new products. Only entities that are not creative will suffer; copyright should not exist for their interests.

Reduced copyright will make it more affordable to create new art.

Let us compare two people, each living in an identical world except for the existence of copyright. The first world does not have copyright and person A requires PA dollars to maintain a certain standard of living. Person B requires PB dollars to maintain his standard of living. Because copyright holders extract a price for their works PB > PA. Person B must pay more for an equivalent standard of living. Person B must be paid more to compensate. Therefore the company that he works for must charge more for it's products; despite the fact it may not trade in copyright products. This is simple economics.

Now consider a struggling artist in B's world. The artist lives in an expensive society and has less time to devote to his work; time must be spent making money elsewhere. The rich, on the other hand, always have more disposable income to put toward investment, and pay for the creation of new works. The rich are able to use copyright to make more money. There is less creation from poor artists, and improved profit for the rich. Copyright promotes creation by the elite and oppresses creation by the poor.

Powered by copyright, the Motion Picture Association of America is now in their most profitable years. Meanwhile Canadian artists, under the burden of copyright taxes, need funding from our Canadian Heritage Ministry to promote Canadian art.

The complete removal of copyright is not an option I propose. We have already covered the benefits of copyright and deemed it necessary. However, I do propose a lower copyright duration with intent to decrease society's cost of living and increase the incentive to create new works.

Children should NOT be trained in Corporate Copyright Agenda

Certainly we all agree that copyright education is needed. It is being done now in almost every subject in our high schools. All of us remember being taught the rules of "do not copy" and "provide references to support your conclusions".

The World Intellectual Property Organization (WIPO) has documented the "need" for "public education" programs, to educate the public (with special emphasis on school children) about the rights and responsibilities associated with intellectual property. If we are already doing this then what else does WIPO want?

WIPO wants copyright education programs to be on a grand scale; a saturation of the senses concerning the evils of copying other's works. There is no plan for a rational discussion over the foundations of copyright, just blind adherence to the law.

The WIPO education plan may appear similar to the community-based sex and drug programs aimed at school-age kids, but it is not. Local groups who really did have the best interests of the children in mind implemented these sex and drug programs. WIPO wants a moral and civic education developed at the international level with only financial interests in mind.

Canadian government and society should remove itself from the WIPO agreement and not implement the brainwashing agenda planned by the corporate elite.

The Future of Copyright

In the past copyright was required by individual artists to support their craft. The lack of technology back then kept their markets small; long copyright terms were understandable. The long terms created a sufficient market for an artist to recover his investment, and possibly more.

Technology has been steadily increasing the size of markets for copyrighted works. Logically copyright duration should be reduced accordingly, providing the same total amount of incentive.

Technology is providing each of us with more spare time as more tasks become automated. More time means time to create art. Technology allows us to communicate with each other with greater ease. The transfer of ideas is steadily increasing and forming more creative environments. These creative environments will eventually supersede copyright as an incentive to create new works. Eventually copyright, as it exists today, will be of no benefit to society.

The eventual obsolescence of copyright law demands that there still be support for artists to garner prestige for their work. I believe that copyright should include mandatory credit to the original artist, irrespective of duration.

Conclusion

The various forms of the copyright tax must be considered when copyright law is being reformed. This document is by no means an exhaustive list of all the taxes that society pays to support copyright. Law makers must be diligent in their efforts to recognize these societal taxes used to support copyright. Only when these taxes are identified can a rational balance between the benefits and detriments of copyright be made.

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