Copyright Consultations

Well I have finally got around to putting in my views at 8:50pm in Vancouver - which is still 10 minutes before midnight in Ottawa so should be within the 48 hour extension that was announced on the Copyright Consultations website on Sunday.

Here are my thoughts:

Fundamental Principles

The safety and security of a civil society is dependent on having a population which willingly accepts the laws to which it is subjected and respects the way in which they are administered.

In order to maintain the respect of the population, laws must be seen to be fair and fairly administered, and in order to achieve this they must also be clear - both in their intended purpose and in their specific details.

The basic purpose of the law must be broadly accepted as a fair one, and the means provided for implementing that purpose must also be fair.

Most Canadians accept the fairness of providing some opportunity for control by the creator over reproduction of creative work – mainly for purposes of achieving financial reward and other acknowledgement. But on the other hand, the right to mimic behaviour and copy objects is inherent in our identity as human beings as it represents the exercise of one of the fundamental characteristics of us as a species and to deny it is to remove from us what makes us human. For this reason it must never be the act of copying or investigating that is itself proscribed or limited, but just the transmission of results – and this only when that is done in a way which limits or denies due credit and reward to the original creator of the work.

Specific Recommendations

1 – No extension of the term of copyright restriction

Extension of copyright restriction benefits only the current owner of the copyright and not the original creator. Anyone who has sold copyright is cheated by such extension and it provides unfair unearned windfall profit to those who have previously purchased rights at a price based on the more limited term.

2 – Private copying should never be restricted

Restrictions on the making of backup copies and “format shifting” are totally unacceptable and this includes “tampering” with DRM software to whatever extent is needed in order to achieve such purposes. It should only be the distribution of copied work that is ever restricted as this is the only activity that can be seen to impinge on the rights of the creator or the creator’s heirs and assignees.

3 – Fair Dealing should be defined more broadly

Duplication and distribution for non-profit educational and research purposes should not be restricted and the permissible categories should be described in general terms (with language like the “such as” which occurs in the US “Fair Use” provision). Specialized exceptions are less useful and ought to be used sparingly because they likely wouldn’t be able to keep up with technological change or accommodate a range of reasonable educational practices.

4 – Protect and Extend Public Domain

Cultural and economic growth depends on the free flow of ideas. Copyright restriction is a (maybe) necessary limitation on this, but should always be kept to the minimum level needed to achieve its intended purpose (which is only provision of adequate reward to the creators). In addition to keeping copyright ownership terms limited, and probably eliminating Crown copyright entirely, this requires also limiting the extent to which an adaptation of a public domain work can be placed under copyright restriction. It also requires making the penalties for false claims of copyright much more severe than they are at present.

5 – Rationalize Penalties

The civil penalty applied for violation should not exceed the actual damage done to the copyright owner. This means that there should be no statutory damages in such cases. Also, since false claims of copyright steal from the public as a whole they should be criminalized and subject to penalties that are severe enough to deter the practice – and so the fines charged should be defined in a way that is proportional to the net worth of the offending party.(Actually this is a principle which should apply in all cases of punishment by financial penalty – but that’s another story.)

6 – No Penalties Without Proof in a Court of Law

The so called “three strikes” provisions as well as “notice and take down” violate the most fundamental principles of justice and must not be included in Canadian law. Our current “notice and notice” system must be maintained and mere accusations of copyright abuse must never be used to allow interference with a person’s fundamental right to communicate – which in the modern world requires free access to the internet. Such a fundamental freedom should never be removed from anyone without full due legal process.

7 – Allow Buyer Opt-out from Media Levies

Media levies may provide an effective means of compensating copyright owners for the loss of revenue that results from non-commercial non-private sharing. And the fact that this makes permissible the natural human tendency to engage in such sharing is a definite social benefit to all Canadians. But heavy users of blank media for other purposes (such as for maintaining collections of their own work) should not be made to support the media sharing activities of others. This is presently one of the most serious sources of perceived unfairness in our current laws and is likely to seriously damage respect for the law among those affected. Fortunately there is a simple solution. Namely allow the purchase of specially marked media on which it is a criminal offense to record copyright material without explicit permission (similar in principle to the coloured tax free fuel that is sometimes provided for agricultural purposes).

If such a provision were in place I would not object to the extension of the media levy to ipods and other personal recording and playback devices.

Thank you for your attention.

sincerely,
Alan Cooper

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