When Creativity Goes Digital

Don’t believe industry lobbyists who portray Canada as a haven for digital pirates. This country has strong copyright laws that protect content creators well.

If you read the August 6 National Post article by Barry Sookman and Steven Stohn, you might believe that Canada is in the grips of some moral decay, that there are "pirates" surrounding us, and that locking everything down and kicking people (and their content) off the internet is the only option.

The current round of copyright consultations comes at a time when Canadian law is in need of modernization. The problem is that the reality is very different than the fiction presented by Sookman and Stohn. While it is true that new digital technology allows a minority of people to infringe on copyrights easier than they might have in the past, it is far more important to realize that this identical technology in the hands of creators has opened doors to new methods of creativity and distribution.

The "solutions" proposed by registered lobbyists like Sookman may help protect his clients from otherwise inevitable changes in the marketplace, but they will not, as suggested, reduce copyright infringement or enabling creators to be paid more.

We need to start with the suggestion that Canada is viewed as a pirate haven. Industry associations representing the major recording labels, the major motion picture and television studios, and some of the sole-proprietor software vendors have produced "piracy" reports of questionable validity for years.

Each of these industries is facing legitimate competition from alternative methods of production, distribution and funding enabled by new technology. Much of the alleged losses they have felt can be just as easily attributed to legitimate competition as infringement.

These industry associations mix-and-match their questionable reports through a variety of other associations such as the International Intellectual Property Alliance (IIPA), which is the primary source for the United States Trade Representatives Special 301 report.

In other words, the source of the claim that Canada is a "pirate haven" is a handful of industry associations who then launder the idea through other organizations. Canadian Copyright law is not weak. Independent commentators have often suggested that in many ways Canada has "stronger" (meaning more in favour of copyright holders) law than some of our trading partners, including the U.S.

As a registered lobbiest for the Canadian Recording Industry Association (CRIA), Sookman is going to represent the interests of his clients. But this should not be confused with the interests of creators, the economy, technology owners, or the general public. We can go through each of his suggestions and offer some clarity.

Sookman and Stohn say we should ratify the 1996 World Intellectual Property Organization Internet Treaties, which include protection for digital locks. These locks were applied to content as well as computing hardware and software. The lock on the content allows the key-holder to limit that content to only being accessible on "authorized" hardware/software. Locks on the hardware and software are intended to allow the manufacturers and software authors, not the owner, to control the hardware. Locks, digital or otherwise, are always intended to protect the interests of those who hold the keys, which in this case are content distributors, hardware manufacturers, and software authors. Content distributors are not the same as creators, and hardware manufacturers are not the same as creators or their audiences who would otherwise control the technology that they own.

It may be amusing to note that industries who like to claim that copyright infringement is analogous to "theft" are themselves advocating for legal protection for locks on things they do not own, an action far more analogous to "theft."

The U.S. was the first country to pass laws against removing these digital locks, and it has done nothing to reduce copyright infringement in that country. It should be obvious to anyone who looks at the evidence that the suggestion that these digital locks are about reducing copyright infringement is a red herring.

As with other property laws, protecting the rights of technology owners to remove any foreign locks is in almost everyone's best interests. This is necessary for reasons far beyond protecting the interests of the creators who rely on controlling their own technology.

Sookman and Stohn also mention a "graduated response process," sometime called a "three strikes and you’re out" rule. But Canada already has a "one proven strike and you’re out" rule. The statutory damages that can be awarded when an alleged infringer is brought to court are high enough to bankrupt nearly anyone.

What these lobbyists are actually asking for is a way to inflict remedies on alleged copyright infringers without having to provide adequate evidence of the infringement to a judge. When CRIA members tried to sue 29 alleged file sharers back in 2004 (and appeal in 2005), it was the lack of evidence that caused CRIA to lose the case, not a problem with Canada's already strong copyright law.

There is a similar problem with the "notice and take-down" process that Sookman and Stohn are calling for. Alleged copyright holders have been falsely accusing people of infringement, demonstrating a need not only for judicial oversight but also for remedies against false accusers. Given the severity of harm of a false accusation compared to non-commercial copyright infringement, the remedies against false accusations by alleged copyright holders should be far more severe than what is levied against alleged copyright infringers.

We need to ensure that our laws do not cause liability against providers of technology that have substantial non-infringing uses. New technology must be under the control of individual Canadians if we are to receive the positive economic and other benefits.

Any multi-purpose technology will have many unpredicted benefits as well as potential abuses. Those who carry out these abuses, and not the providers of the technology, should be liable. Otherwise providers and investors will be unwilling to take the risks.

Canada also needs to have a copyright act that can adapt to constantly changing technologies. This is why we must follow the U.S. and adopt a broad "fair use" requirement that allows the courts to interpret the law in the context of modern technology. This is in direct contrast to the embarrassment we saw in the recent Copyright Bill C-61 that made specific mention of the "videocassette."

It is both ironic and hypocritical that recording industry lobbyists are asking for laws to protect their industry from positive competitive changes brought on by the internet, while believing that limitations and exceptions should only be applied to far older technologies.