ARCHIVED — John O'Sullivan
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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.
Submission from John O'Sullivan received on September 10, 2001 via e-mail
Subject: Consultation Paper on Digital Copyright IssuesI am writing to you today to comment upon the copyright issues raised in the Consultation Paper on Digital Copyright Issues (CPCDI).
There are three concerns I would like to raise in response to this document.
First is the potential for rights holders to impose terms and conditions on the use of copyrighted materials in Canada that are not consistent with Canadian law or Canadian Government Policy. The second is my worry that copyright holders may succeed in using legislation like this to have Government act as their agents in business disputes. Third is the framing of this debate in the context of the DMCA, a law that may well not survive Constitutional challenge in the US legal system.
Terms Inconsistent with Canadian Law
As the rights holders themselves will set DRM technology, there will be no mechanism to ensure that the access provided will reflect Canadian concerns. Specifically, the formulation of conditions under which a particular work may be accessed will not necessarily occur in Canada. For many kinds of popular culture works, that formulation will be done in the United States. If a particular publisher or rights holder decides that they do not support exemptions in their usage conditions for Libraries or Cultural Institutions, they can effectively subvert Canadian law by not putting such exemptions in their DRM technology.
Because digital content can be delivered from anywhere to anywhere, there is absolutely no reason why a copyright holder need a Canadian presence to distribute their works here. There is no mechanism in these proposals to ensure that my rights as a Canadian are recognized, much less protected.
The Canadian Government as Business Agents
The use of the Internet for distribution of digital content has great potential benefits and drawbacks for rights holders. I worry that some rights holders are seeking to enjoy the vast cost savings this new technology can deliver, while using the Government to protect them from the potential drawbacks of the same technology. They want the good parts, and they want the Government to protect them from the bad parts. Is this not similar to putting telephones on your employee's desks, and lobbying for legislation that makes personal telephone calls from work illegal? If a company wants to utilize a technology for business, let them. They should not ask the government to protect them from poor decisions about how they implement that technology.
Closely related is the issue of having the Canadian Government police particular commercial DRM technologies. If a company decides to utilize a particular DRM technology, and that technology is flawed, should Canadian law protect them from those flaws?
In addition, what about DRM technologies that prohibit me using a legally purchased work on a legally constituted compatible playback system? For example, in the DeCSS case in the US, a Norwegian student wrote a code to enable him to watch DVDs on a Linux computer. The MPAA has sued to have US law punish anyone who distributed that code. This, in my opinion, is an unfair restraint of technological innovation. If this kind of legislation had been in effect in the early 1980s, there can be no doubt that VHS would have become illegal. All of the economic and cultural benefits that home video have provided would simply not have occurred.
Lastly, there is the DMCA. This appears to many legal experts to be a hopelessly flawed piece of legislation that potentially violates many constitutionally protected rights. In addition, it violates legal precedent in many previous copyright and technology cases.
Among those potential violations, free speech, protection from unreasonable search and seizure, the right to due process, the right to a fair trial, and protection from self-incrimination.
The contention that this law will be thrown out by US courts is entirely in accord with recent history. The US courts decisively reversed the Child Online Protection Act several years ago. It does happen.
In addition to these problems, the law also criminalizes aspects of copyright and contract law. Does the Canadian government want to fill the jails with copyright violators? This could easily become like the situation with drug laws. If the state insists on unilaterally criminalizing socially accepted behavior, the legal system is brought into disrepute.
Although Canada has obligations under the WIPO, there is no reason that we need to meet those obligations under a framework dictated by others. The United States has utterly failed to devise a workable legal framework for these issues, let us not make the same mistake.
Thank you very much for the opportunity to participate in this process.
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