U.S. civil liberties group warns Canadians against adoption of DMCA-style legislation

Libraries, used record stores and anyone working in multimedia could find their freedom to use intellectual property unnecessarily restricted if the Canadian government passes U.S.-style legislation meant to protect copyright owners from digital piracy, according to a senior lawyer for a prominent American civil liberties association. Fred van Lohmann, senior staff attorney for the San Francisco-based Electronic Frontier Foundation (EFF) says Canadians should be wary of a proposal by Canadian Heritage and Industry Canada to introduce copyright amendments that would restrict the use of so-called anti-circumvention, or anti-hacking, technology (CNM, June 28/01). If the government’s current consultation paper makes its way into law, van Lohmann warns that libraries, used record and book shops and even pure academic research could be threatened – all in the name of bringing Canada into line with its World Intellectual Property Organization (WIPO)1996 treaty obligations. He says Canada would be caving in to Hollywood and big media interests, and going much further than the WIPO provisions require. "The treaty in question, which is the 1996 WIPO copyright treaty, merely requires that signatories enact ‘adequate protections’ … for copyright owners who use technological measures to protect their works. It does not say that those measures have to reach as far as the American DMCA (Digital Millennium Copyright Act) does," he told Canadian NEW MEDIA. "Specifically, it does not say that those protections must prohibit technologies and devices as distinguished from the act of circumvention itself. There is nothing in the treaty that requires that the protection for circumvention needs to trump every other aspect of copyright law as it seems to have done here." Van Lohmann says Canada can learn from the American experience with its DMCA, which since its passing in 1998 has resulted in a score of high-profile court cases. Though the U.S. Copyright Office recently gave the DMCA a clean bill of health in a mandated two-year review, van Lohmann resists suggestions that the law isn’t harming basic freedoms to use intellectual property. He says the most recent example is the Sklyarov/Adobe case in which an extra-national spent three weeks in an American prison when he created a product to crack the Adobe e-book technology. The case, which has made headlines for weeks, has angered civil libertarians who argue that Sklyarov’s software merely makes the content of e-books available for traditionally protected uses such as lending and making personal copies. As proposed, says van Lohmann, the anti-circumvention rules contained in the Canadian government’s Consultation Paper on Digital Copyright Issues would upset the delicate balance between authors’ rights and the public good. "Where before we had a balance where you were entitled to make certain use of certain copyrighted works for fair dealing, for example, in Canada, after a protection measure has been imposed on that work, you now have none of those rights," he explains. "Those rights have effectively been entirely eliminated and, instead of a balance where we democratically decide what the public may do and what authors control, we have a system where the authors unilaterally decide in their protection measures what you and the public are entitled to do or not. "If you have a book, the debates we have are, ok, am I allowed to photocopy from that or not? Am I allowed to give it to a friend? Am I allowed to sell it? But, no one ever asks with regard to a book, am I allowed to read it? Am I allowed to read it more than once? Am I allowed to read it at night? "These are questions that don’t even occur because you purchased the book, it’s in your hand. It’s unimaginable that those everyday uses of the thing itself would be controlled. However, obviously, in the digital world, every one of those questions is up for grabs. In a digital world, you cannot assume that you would be allowed to read something more than once. You cannot assume that you would be allowed to read it at any time or in any place. You cannot assume that you will be allowed to read it in the way you like." The same applies to other multimedia forms such as MP3s and movies, he adds. The EFF also warns that the right to free speech could be threatened if Canada follows the U.S. approach. It cites the case of a Princeton professor who cracked a music encryption code and wanted to publish his findings. He was stopped from doing so under DMCA rules, until the EFF recently won a landmark case on his behalf to allow him to present his findings at a conference. Canada under pressure to mirror U.S. legislation Opponents to a Canadian DMCA say Canada is under heavy pressure from the American government to enact similar legislation as a way to meet its treaty commitments – a key sticking point in many of the independent submissions to the departments (see story in this issue). Van Lohmann notes that the U.S. government is pushing hard for all of WIPO’s signatories to join the bandwagon. "It’s important to recall, here, that Hollywood is a very important economic force in the U.S. and that entertainment products are an enormously valuable export commodity for the United States. And that, quite frankly, explains very neatly why it is that the United States – not just American companies, but the American government – has gone abroad to effectively lobby for over-broad legislation like the DMCA. That’s just a reflection of American/international trade policy right now," he explains. For its part, the American entertainment industry argues that any lost revenue stemming from digital piracy will result in fewer products being made available. It’s not an argument van Lohmann accepts. "The bottom line, for me, is that copyright law has never been about guaranteeing maximum profit and control for owners – most of which, I hasten to add, are not the authors. That has never been what copyright law has been about. The primary purpose for copyright has been to secure a benefit for the public which is a vibrant and diverse body of artistic expression. If we see that copyright law is being used to limit public access to artistic expression, to reduce the diversity of that expression, that needs to be altered. That is using copyright against its basic purpose."

U.S. civil liberties group warns Canadians against adoption of DMCA-style legislation

Broadcast | September 20, 2001

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