CANADIAN COPYRIGHT LAW: A Consumer White Paper
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Executive Summary Introduction
We are a coalition of consumer advocates. We have come together to advocate for copyright laws that serve the interests of Canada and of Canadians. Copyright law is designed to balance the interests of creators with the interests of the public. Copyright grants creators exclusive rights in their works as a reward for creativity that also serves as an incentive for the creation of new works. These rights are not absolute, but limited in nature, scope and time. These limits are essential to copyright’s greater design, for it is at the limits of copyright owners’ rights that important consumer interests come into play. From a consumer’s perspective, copyright’s current balance is far from perfect. In fact, many consumer dealings with copyrighted content – ordinary dealings, like copying digital music onto a portable device, or using the digital video recorders sold by cable companies – technically infringe copyright. In these and many other cases, the law is simply out of step with reality. Simple, uncontroversial amendments to the Copyright Act can fix many of these failings. Unfortunately, copyright policy makers are not focusing on consumer interests. Instead, recent proposals to amend the Copyright Act focus on expanding rights holder’s interests at Canadian consumer’s expense. We call on Canada’s law-makers to accommodate consumer interests in any revision to the Copyright Act currently under consideration. Additionally, we call on lawmakers to revise the Copyright Act to address important consumer concerns that are not yet under consideration at all.
Canadian lawmaker’s push to bring Canada into line with the WIPO Internet Treaties could have very serious consequences for Canadian consumers. We believe that there is no reason to add anti-circumvention protection to Canadian copyright law. We believe this for several reasons:
1. No justification. The case had not been made that Canada needs anti-circumvention legislation. In fact, Canadian cultural industries are flourishing in the absence of anticircumvention legislation.
2. Redundant. Anti-circumvention legislation is redundant: copyright law already provides penalties for copyright infringement and there is no need for a second layer of protection that penalizes substantially the same behaviour as copyright;
3. DRM does not work. Technological tools like DRM do not work. Corporations invest millions of dollars into developing DRM systems that are broken within hours or days of being released.
4. Technological threats. Anti-circumvention laws do not improve on copyright law’s existing disincentives to infringe copyright. Anti-circumvention laws do, however, threaten other values that are important to consumers, such as competitive markets, privacy, and security. The U.S. anti-circumvention law (known as the DMCA) serves as a stark example of this and is a failure.
5. Anti-circumvention laws are government intervention. Our markets don’t need government intervention. Government should instead take a neutral stance, working to ensure a level competitive playing field that benefits consumers rather than privileging particular business models.
If Canadian lawmakers choose to legislate anti-circumvention laws, they must take great care to minimize the negative impact those laws will have on Canadians. We believe that any Canadian anti-circumvention law must respect the following conditions:
1. No new “access” right. Laws should tie circumvention liability to an intent to infringe copyright; Canadians should not be liable for accessing content and should enjoy an unfettered right to do so.
2. Non-infringing circumvention. Consumers should be allowed to circumvent technological measures, like DRM, providing that their access to the underlying content does not infringe copyright.
3. Legal tools, devices and services. Anti-circumvention legislation should not prevent people from developing, selling and using tools, devices and services for circumventing technological measures for legal reasons.
4. Protect legitimate expectations. Laws should preserve rights and expectations that consumers have under copyright, such as the right to make copies and backups of works that they own.
5. Protect privacy. Anti-circumvention laws should not protect technologies that do not respect privacy rights. Consumers should retain the right to enjoy works privately and access to content must not be conditional on the surrender of consumer privacy.
6. Do not protect spyware. Removing unwanted and illegal technology such as spyware should not be a violation of anti-circumvention laws.
7. Protect the public domain. It should always be legal to circumvent DRM in order to access works that are no longer protected by copyright and exist in the public domain.
8. Prohibit misuse. Any Canadian anti-circumvention law should be balanced by the creation of specific competitive protections for Canadians and the creation of liability for “copyright misuse.”
In addition to the threat posed by anti-circumvention laws, here are many facets of copyright law that run counter to the interests of Canadian consumers and do not reflect the realities of the Canadian marketplace. Canada needs to bring current copyright law into step with the ways consumers use copyrighted materials. Here are our recommendations:
1. Clarify the legality of time, space, and format shifting. Copyright laws that outlaw these practices threaten consumers and are out of step with today’s marketplace and with reasonable consumer practices.
2. Fix fair dealing. Expand fair dealing rights to include other uses of content like parody, digital sampling and other transformative uses. Subsume the requirement to provide the source and author when a work is used for purposes of criticism, review, or news summary into the general fairness analysis.
3. Legalize back-ups. Protect consumers’ right to protect their investments by making back-up copies of legal, purchased content.
4. Protect the public domain. Reduce copyright terms, or keep them to the minimum needed to meet Canada’s international obligations.
5. Rationalize statutory damages. Require plaintiffs to prove damages against consumers, public institutions, museums, libraries, archives, schools, colleges and universities. Restrict the application of statutory damages to cases of commercial infringement, where they are warranted and actually serve the public interest.
6. Abolish crown copyright. The public should enjoy free and unrestricted access to works produced with public funds.
7. Consumer commissioned photographs. Copyright ownership of commissioned photographs should stay in consumers’ hands. Doing otherwise frustrates consumers’ legitimate expectations.
8. Protect copyright and consumers against unfair terms. Restrict rights holders’ ability to undermine copyright’s public policy objectives through the use of contractual terms that limit consumers’ rights, including the ability to undertake security, interoperability and reverse engineering research, to make reasonable use of content (time-shifting, space-shifting), to make private copies for personal use, and to re-sell content.
9. Preserve consumers’ digital rights. The Copyright Act affords rights-holders only limited rights. It has never been an infringement of copyright law for a consumer to simply read a book, or to listen to music in the privacy of one’s own home. By the same token, ephemeral electronic copies, or “RAM copies”, should be treated the same way.
10. Monetize P2P. Efforts to shut down peer to peer networks have failed. We should find ways to transform P2P networks into legitimate music distribution and compensation vehicles to benefit Canadian music creators and their fans. It is time the Canadian government showed some leadership and undertook active study of this option.
We are concerned that proposals to change Canada’s copyright laws do not represent the interests of Canadian consumers. These proposed changes remove many rights that consumers have traditionally enjoyed and fail to address obvious changes that would benefit consumers and creators. We are advocating on behalf of consumers for laws that do three things:
1. Do No Harm. Changes to Canada’s copyright laws must be guided by this principle. We must not enact changes that harm consumer welfare and threaten education, freedom of expression, privacy and security. We do not want laws that harm small business, stifle innovation, or that cost Canadians millions of dollars.
2. Laws Based on Reality, Not Rhetoric. The Canadian government must consult experts on education, security, privacy, small business, and consumer groups before enacting legislation. Our copyright laws should be based on the facts, not on rhetoric.
3. Canadian Law Must Serve Canadians. Statistics Canada reports that our copyright royalty deficit – the amount of royalties generated by Canadians abroad compared with royalties earned by foreign performers in Canada – has grown dramatically in recent years. For every $1 earned by Canadian performers outside the country, $5 flows out of the country. Proposals for longer and stronger copyright will increase the flow of dollars out of Canada, rather than foster Canadian creativity. It is important that we address this trade imbalance and focus on the needs of Canadian creators and consumers rather than the self-interested demands of a limited group of rights holders. Where changes to copyright laws are needed, Canada must adopt laws that serve Canadian interests first. Pressure from American interests and proposals must be rejected.