Users and creators spar over digital protections for copyright at hearing

The fifth in a series of cross-country consultations by the departments of Industry Canada and Canadian Heritage saw little in the way of any broad consensus emerge on potential reforms to the Copyright Act to protect intellectual property in the digital age. On April 11, about 100 participants attended the day-long session to air their views on how the Act might be changed to create a new right of making available, guard technological protection measures, incorporate digital rights management issues, and deal with ISP liability issues. Though little agreement on the topics was evident, observers were surprised by new developments including the shifting position of educational institutions on ISP liability, as well as the formation next week of a new alliance of creators in Montreal to fight for tougher copyright protection. The departments might also expect an easier ride than thought on ISP liability as a majority of participants at the Ottawa hearing rejected presentations from AOL Time Warner Inc. and DirecTV Inc. on the efficacy of American Digital Millennium Copyright Act (DMCA)-style provisions on notice-and-takedown in this country. Though it has been the redheaded stepchild of the process to date, making available proved a hot topic at the consultation with creators, photographers, record labels, and user groups disagreeing on the provision of a new exclusive right for music performers and publishers on par with that of authors. Academics and user groups represented by the Canadian Association of Research Libraries (CARL), the Association of Colleges and Universities of Canada (ACUC), the Canadian Library Association (CLA) and others were adamant that if a right of making available is granted, that there be an exception from the start for educational uses. As one representative of the provincial governments’ education ministers (with the exception of Quebec) stated, the granting of a right of making available could "complicate an already complex rights administration system", with the potential to create disagreement between rightsholders and hold up access to materials. Not so, noted the Canadian Recording Industry Association’s (CRIA) Ken Thompson. In his comments, the record industry advocate said that arguments against a right of making available on the basis that it might make rights clearance complicated is really a way of saying that "it’s too expensive, and therefore works should be almost free through compulsory licensing." To counter the argument, he noted that ever since recorded material became available, labels have always made rights-cleared material available. The second topic of the day, technological protection measures (TPMs), was no less acrimonious as several computer programmers and computer science students sparred with creators and American giant AOL Time Warner over the need to ban the hacking of encryption and other protection schemes. While the departments outlined their belief that circumvention for the purposes of infringement should be banned, one owner of an Internet security company argued that no technological measures could deter the copying of content, and that banning its circumvention therefore falls out of the realm of copyright legislation. "If anything," said Sandy Harris, "we need a provision that guarantees as accessible and possible." While users are worried they won’t have access to content if they can’t hack it using either hardware or software, several media and rightsholders groups argue that TPMs hold the key to making more content available. Shira Perlmutter, a VP at AOL in New York City, said that the physical constraints to copying have been removed, and that TPMs are a positive way to ensure consumers have access to content in multiple formats with multiple pricing options. She added that creators are anxious for as broad a distribution for their products as possible. As far as exceptions go, Perlmutter said they would be appropriate, but that they shouldn’t serve as a "back door escape hatch." Author Susan Crean also argued in favour of legally protecting TPMs as a way to ensure writers get paid. "I am very tired of being put in a position where I feel users and producers in this country want me to apologize for making a living from what I do…I’m tired of people saying we should be pleased that people make use of our material for free because it’s advertising…people die from exposure." Crean says that a founding meeting of the Creative Rights Alliance will take place in Montreal next week, but didn’t divulge any further details to the media. The third session of the day, on digital rights management (DRM), proved less contentious as most parties argued in favour of some sort of protected rights management information, though little emerged in the way of consensus as to what information should be tagged to objects. The final session of the day, on ISP liability, proved the hottest potato, as creators and representatives of ISPs, cablecos, and other service providers debated the merits of notice-and-takedown regimes (see DirecTV story in this issue). AOL’s Perlmutter argued that while the DMCA might not be appropriate in Canada, certain aspects have worked well. As both a copyright holder and ISP, AOL Time Warner is pushing for a notice-and-takedown regime that it says has proven efficient south of the border. Canadian representatives of users and ISPs, however, were less inclined to support the measure. One of the few ovations of the day came following remarks by University of Ottawa law professor Michael Geist. "We are a sovereign country...It’s not for the U.S. to tell us what that copyright policy should be," he told the crowd after expressing dismay that many Canadian ISPs respond to DMCA notices. He noted that the Canadian government is addressing three areas of concern on the Internet – hate speech, child pornography and copyright infringing content, and of these only copyright infringing works don’t require a court order to be taken down. Jay Thomson, president of the Canadian Association of Internet Providers (CAIP), argued that the Tariff 22 decision, which limits ISP liability on Internet music, should be codified into law, "no matter what the Federal Court says." He would like a notice-and-notice regime for removing infringing content adopted, and argues that ISPs shouldn’t be put in the position of determining the legality of content – something only a court can do. Jay Kerr-Wilson of the Canadian Cable Television Association was more blunt, arguing that attempts to make ISPs liable represent a cash grab. "Don’t make ISPs responsible for a communication because you want to charge them a licence fee, or have them act as an enforcement arm," he told government officials. CRIA’s Thompson, however, disagreed that ISPs should be held blameless. From a practical perspective, he said, "You don’t have to be very smart to figure out there’s a lot of copyright infringement on the Internet – films, music, in various forms. They wouldn’t reach any of us if it wasn’t for the intermediaries." He said it’s unfortunate that ISPs are caught in the middle but compares their position to that of stores selling illegal copies of records. Sanctions, he argued, should be built into legislation to encourage ISPs to take action on piracy. The current notice-and-notice regime adopted by CAIP’s members and Sympatico is working well, he agreed, but only because there is always a threat of lawsuits in the current legislative vacuum. In one surprise, academic institutions are now supporting a limitation of liability for ISPs – counter to many of their written submissions. Several representatives of academic groups told department officials they are increasingly acting as service providers, the motivation for their change of heart. Department officials have announced a sixth consultation hearing to be held in Edmonton on April 29.

Users and creators spar over digital protections for copyright at hearing

Broadcast | April 19, 2002

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