WIPO REALITY CHECK: NDP OFFERS PRENTICE A WAY THROUGH COPYRIGHT MORASS

10 March, 2008

Last month I provided Minister Jim Prentice with three reasonable steps to get his government out of the sinkhole caused by rushing through with poorly planned copyright legislation.

Step one: live up to the Conservative commitment to bring the WIPO treaty to the House for debate before ratifying it.
Step two: ensure adequate public consultation with the various stakeholders before legislation is introduced.

Step three: ensure that any move towards new copyright legislation is focused on addressing the rapidly shifting realities of technological innovation.

As a follow-up to this Three Step approach I am offering Jim Prentice some thoughts regarding WIPO obligations. Minister Jim Prentice needs to come clean with the Canadian public over the fact that restrictive, U.S. style DMCA legislation is not synonymous with ratifying the WIPO treaty. Under international trade obligations Canada could ratify WIPO and still maintain a wide variety of choices of how to go about setting up appropriate copyright legislation for the 21st-century. We are in no way obligated to go down the same dead end road as the United States with their restrictive legislation.

However, if Mr. Prentice is going to let Canadian copyright legislation be written by U.S. trade interests he will certainly face a major backlash from both artist’s organizations, consumers and Canadian business groups. Put simply, he can’t pretend that restrictive DMCA legislation is being forced on us because of WIPO obligations.

Let's be clear -- Canada as a signatory to WIPO is under no obligation to go further. As a signatory we simply have to commit that we will not undermine the principles of the treaty. Ratifying or not ratifying is entirely up to the discretion of individual countries.

As the WIPO documents themselves state: “The effect of signature is not, of course, to bind the signatory State…It is only the ratification of the Convention by an existing member State which has signed the Convention, or accession to the Convention by a new member State, which creates an international legal obligation.”

Attempts by some lobbyists to portray Canada as some kind of international bandit state for not ratifying WIPO is misleading and damaging. Parliamentarians need not get worried by such “end is nigh” grumblings. Our attention must be focused on updating the copyright act to come to terms with so many dramatic shifts in technologies over the last ten years.
As for WIPO, the question of whether or not Canada should ratify this treaty is a debate that should come to the House of Commons. In fact, the Conservative government has pledged that all treaty ratifications will be debated prior to ratification.

But even if the government does chose to move forward with ratification of this 1996 treaty, Canada would continue to maintain a wide variety of options in terms of how far we want to go in terms of locking down copyright rules. For example, let’s look at the issue of offering legal protections to TPMs (technological protection measures). One of the main misconceptions about WIPO is that by ratifying the agreement, Canada will be forced to apply a maximalist approach to the legal protections offered TPMs. This is simply not the case.

Canada can lay down reasonable guidelines as to what protections are in the interests of Canadian content owners and define limits on what protections go over the line. For example, circumvention of TPMs for technological research or innovation should not be outlawed. Rather, the legal protections for TPMs should target those who are looking to break codes for the purposes of pirating copyrighted works for commercial purposes.

Circumvention for lawful purposes should be allowed.
Otherwise, it turns legitimate consumers into outlaws and provides certain very powerful corporate players the ability to squash and deter innovation from competitors. This would be like putting square, wooden tires on a vehicle trying to make its way down the speedway of the 21st century Knowledge Economy.

We must also ensure that TPMS are not used to interfere with the legitimate rights of consumers to enjoy products. The most notorious example of this abuse of TPM technology is the Sony “root kit” case where encoded protection measures were imposed on musical CDs which infected home computers and caused systems to crash. Why not have laws to protect consumers from unfair use of TPMs on products that have been purchased?

The U.S. corporate lobby, however, is attempting to impose extraordinary protections for TPMs that go well beyond the principle of fighting piracy. For example, trade pressures from the U.S. could enshrine the right of corporate interests to dictate how new playing devices and software created by third parties should be designed and function. This is the 21st century equivalent of attempting to eradicate VHS recorders or photocopying machines.

Parliamentarians must grapple with such attempts to use “the fight against piracy” as a digital Trojan horse that radically alters the very notion of copyright itself. It would be terrible public policy to proscribe the development of new technologies for disseminating information. Such a policy would unfairly impact artists, innovators and those who are committed to the continual innovation of the digital milieu.

Parliament must also stay away from the more hysterical claims that we need to start banning circumvention devices. This is like saying we need to ban axes because they could be use to break down a door. Once again we have only to look back to how laws were used to limit FM radio distribution in the 1930s because it was seen as a threat to the crappy AM radio signals being promoted by a few large U.S.
corporations.

Another disturbing element is the push to use TPMs to enshrine a right that doesn’t even exist under principles of copyright -- the right to control access to a copyrighted work. In fact, access to these works can be almost infinitely calibrated thanks to a misuse of TPM technology.

For example, it would be possible to "license" use of a work to a library for a finite number of times or uses thereby eliminating the ability of a library to maintain digital archiving. Copyright owners could impose terms and conditions on access that conflict with rights normally granted to users; copyright owners could charge for page views, book reviews, or any conceivable use.
Imagine buying a book and having it catch fire after the fifth time you or a family member read it. This DMCA-style legislation on TPMs would have no impact on peer to peer trading but would have devastating impacts for libraries or schools. Thus we start moving into a dangerous worldview that subjects knowledge to a pay-per view world with electronic tollbooths being set up to impede learning, innovation and research.

Such moves represent a dangerous intellectual counter-revolution that must be vigorously challenged by politicians.

The irony in this push to dramatically extend the rights of TPMs is the fact that more and more corporations are moving away from their use, simply because it is bad for business. Even more ironic is the fact that the architect of the DMCA Bruce Lehman is now an outspoken advocate against this legislation.
I had the opportunity to meet Mr. Lehman at a conference in Montreal. He explained how the U.S.
thought that such legal protections would enhance the ability of the U.S. to develop a knowledge economy based on innovation. However, the problem with the restrictive DMCA model is that it is used to stifle innovation and new business models.

Minister Jim Prentice needs to recognize that copyright has always been a balancing act. The right of artists to be remunerated for their work is at the heart of copyright. At the same time, we need to encourage access, use and the development of new technologies.

We have only to look at Hollywood’s campaign to outlaw VCRs in the 1980s to see how fear of new business models cannot be the basis for legislation. As I often point out, the WIPO treaty was written up at a time when the fax machine was considered cutting edge technology. Search engines were in their infancy.
Overly restrictive interpretations on “copying” of works would have made the development of the simple search engine impossible.

Canada must develop copyright legislation that will work in the 21st century. When Bruce Lehman was asked if he had any advice for our country as we developed new legislation he stated simply that we have the opportunity to learn from the mistakes of the U.S. and chose our own road to go down.

Minister Jim Prentice has a great opportunity. There is no reason to consider good copyright legislation as a partisan issue. All of us – artists, educators and competitive Canadian businesses have a common interest in ensuring that Canada creates legislation that will meet the challenges of this new century.