Here's the full text of my (lengthy) response to the copyright consultation that I reported on here. Just something I did up if anyone is interested in getting some ideas or are curious to see what I think. Re: Canadian Copyright Consultation First of all, I would like to thank the Canadian government for, after 9 years, recognizing the need for a new copyright consultation. Many things have changed since the previous consultation and I am pleased to have this opportunity to finally participate in one. Thank you. 1. How do Canada’s copyright laws affect you? How should existing laws be modernized? Canadian copyright laws affects me in the most mundane ways as an artist. I create a song, I am legally protected from people taking the music, and selling it for profit without compensating me. Canadian police have been very active on bootleg operations and have used copyright laws to shut down such operations. I personally think that the Canadian RCMP have been under-credited for their roles in taking down street vendors that sell bootleg copies of people's works, in part, because of foreign lobbying attempts to try and stain Canada's reputation with Fear, Uncertainty and Doubt and say that Canada is a piracy haven. Nothing could be further from the truth. As many of the shortcomings the Canadian RCMP have, at least in dealing with for-profit physical piracy, I'm happy to know that the RCMP have repeatedly done their job correctly on this issue. As much as Canada has been criticized by certain foreign businesses, primarily American interests, for having an antiquated copyright law, I think Canada's current copyright laws have proven sufficient in taking down many of the real pirates that should be stopped. Canada's copyright laws haven't been updated in nearly a decade. Many say that the laws need updating. In many ways, I agree with them. However, the last two attempts to “modernize” copyright laws (Liberals C-60 and Conservatives C-61) have been a disaster. The clear message sent by both the Conservative Party and the Liberal Party through those pieces of legislation has been, foreign interests first, Canadians last. Both attempts say that Canadians should think twice before downloading music. The insinuation from many who supported both attempts is that all downloading is wrong. In some instances, there's been the completely crazy argument that somehow downloading a song for free online means that terrorism is being funded among other things. Arguments like what Charlie Angus re-iterated in 2007 when a lobbyist told him that the internet is nothing more than a vehicle for stolen merchandise and child pornography show just how completely out of touch the copyright lobby is in this day and age. In spite of the regulations of Canadian content on radio and in television, Canadian content creators generally have had a struggle trying to be heard thanks to incumbent industries who's job is to promote the very creators they should be promoting. I live in a small community and the local commercial radio stations would like nothing better than to just play ACDC, Metallica and Nirvana all day long. While many consumers are content with such a scenario, this does nothing to promoting local talent. I argue this is the kind of ideology that has helped to stall the progress of music in the first place. This is where the internet comes in to play and why copyright law reforms are so crucial to “getting it right”. Canadian artists such as myself don't always have a very good opportunity to express their own creativity as I just discussed. Geography has been a major barrier to new content creators, especially in small cities in Canada. The internet has opened up promotional avenues in ways the human race has never even comprehended twenty years ago. Not only are artists able to reach fans half way around the globe with their work, but also artists are able to access culture from other parts of the world so they can define their own culture for the present day and help create the building blocks for culture in the future as well. Before, if you wanted to be heard around the world, an artist would have to sell his or her rights to a major record label, let the label rake in an overwhelming majority of the profits and tour in hopes of earning a living off of their work. The internet has made it possible for not only artists to express themselves on a global basis, but they can do that without even being signed. I've even seen artists create their own record labels after a certain amount of success. Unsurprisingly, major foreign record labels, the middle-men, don't like the idea of being cut out. The major foreign record labels along with other major foreign corporations who's interest is nothing more than keeping the status quo of the early 90's in terms of business models through copyright, have been doing everything they can to stop this. I like to classify these entities as the copyright industry because their sole interest is perpetually strengthening copyright for their profits, not even protecting the interests of content creators. The copyright industry has been doing everything they can around the world to paint the idea of the internet as nothing more than some taboo. To them, downloading is bad. Social networking sites are bad. Unregulated internet traffic is bad. Indexing sites are bad. Streaming sites are bad. As long as communications are being made without their consent, the internet is little more than pure evil to them. In short, they have waged a world war on their own consumer and they won't stop until everything is regulated to their satisfaction. No one, to this day, knows how far the industry is willing to go. It's time for Canada to actually think about the concerns of the very people that really build up the culture in Canada – creators and consumers. As such, copyright laws should reflect the rights of consumers. Creative Commons is an excellent model in framing modern copyright laws. I consider it a “patch” for the failings of copyright laws in the modern era. Here are things I consider what should be put into copyright reform: a) A use it or lose it regime on copyright. The European Union has proposed such laws to help empower creators of culture. When creators sign on to a major entity, they enter contract agreements that give the company full rights of a given work. In many cases, once the artist or creator signs on to the agreement, that entity can simply lock that content in a vault and never let it see the light of day. This is effectively a gag order on content creators because they are often required to make more work as well for that company. A use it or lose it regime would solve this problem. If an entity doesn't use that copyrighted work in a given time period, regardless of circumstances, the rights of that work is immediately reverted back to the original creator. b) Notice-and-Notice Regime The copyright industry has repeatedly said that a notice-and-takedown regime is the only way forward on copyright complaints. This assumes that the current regime of tracking down unauthorized copyright is robust and foolproof. In fact, the exact opposite is true. Everywhere where a notice-and-takedown regime is implemented, it has been heavily abused and many in those countries quickly realized that guilt-upon accusation instantly became a problem. No evidence. No legal reputable process. No justice. A notice-and-notice regime guards against abuse. It allows rights holders to issue complaints if they absolutely have to and it guards against “dragnet” activities that have always resulted in innocent people getting caught up in the “pay up or else” threat letters. A notice-and-notice regime has proven to be effective. It lets users know that they have run afoul of the wishes of the rights holders and allows the end-user to correct the situation. Most of the time, the user takes down their content voluntarily when they receive such a notice. A notice-and-takedown regime is an inappropriate response to internet issues. There's no non-skewed evidence that supports it. c) Liability for False Claims False claims have plagued internet users around the world for years. In Britain, tens of thousands of users were accused of downloading the infamous “Dream Pinball 3D” game. Many have since stepped forward to say that they were falsely accused. In the United States, Viacom sent tens of thousands of takedown notices to YouTube users on copyright complaints. Turns out, some of the videos that were “taken down” were video's of people having a lobster dinner. Nothing Viacom had the rights to. In both cases, there is no recourse for people who have been falsely accused of copyright infringement. Instead, they are either faced to pay a “settlement” fee or hope that they don't get dragged in to court whether or not they dispute the accusation. If copyright holders are to be going around threatening legal action, they need to be held accountable for their actions. Since we are talking about average everyday citizens here, such accountability needs to be accessible for the common, everyday person and allow someone with limited income to fine an entity for false copyright complaints and compensate victims adequately for legal fees and other monetary loss as a result of the false claim. d) Recognize Internet Access as a Right This is not some strange idealistic goal. What such a thing guards against are unreasonable “three strikes laws” as seen in countries like France which is illegally trying to pass such laws (Re: HADOPI) New Zealand users, who faced similar laws, described such laws as what they really were – guild upon accusation laws. There is no legal recourse. It's just the complaining party acting as investigator, trial, judge and jury on complaints. Three strikes laws disconnects users from the internet, forces users to pay for a service they cannot even use, blacklists them from access through another ISP and institutes a culture of “censorship by copyright” without anything getting close to a court. Very few Canadians believe that you should be able to be incarcerated without seeing a judge or a lawyer, and, as such, very few people in Canada would believe that you should be disconnected from the internet based on accusations without evidence. Given that, as I've repeatedly stated, that the internet is a major way of accessing culture, and a medium that organizations are dependent on for accessing things like career opportunities and other every day necessities, disconnecting users is a hyperbolic, outrageous and over the top response to a copyright infraction. e) Issue a Fair Blank Levy for File-Sharing and other non-commercial uses of copyright online A blank levy for ISPs has proven to be the best proposal for file-sharing and other non-commercial uses of copyrighted works. Trying to suppress innovation because a given tool could theoretically be used for unauthorized purposes blocks technological progress. When the CD was introduced, the course of action was to issue a levy so people could freely burn their picture albums. The system is flawed, so it also serves as a way we can learn from the mistakes and move forward with a better levy system for ISPs. Criminalizing file-sharing and similar forms of technology has no future for music. f) Protect Consumers from DRM, Don't Protect DRM from Consumers The latest fiasco over Amazon deleting legally purchased copies of “1984” from their Kindle readers serves as a fantastic example of how dangerous, backwards and destructive technical protection measures (TPMs), Digital Rights Management (DRM) and other “digital locks”. Digital locks was originally touted as a means to stop the unauthorized copying that has happened online. It doesn't take much to realize what a failure digital locks are if that was really the intended use given that works with digital locks are freely downloaded anyway. Still, the government has repeatedly tried to make it illegal to circumvent digital locks. Such laws as seen in the United States has proven to be nothing more than an absolute headache for American innovators. To name one high profile recent example, RealDVD pretty much speaks for itself on why protecting digital locks is, at best, an extremely flawed approach to modernizing copyright laws. To this day, no DVD burning software is legally able to make it to market in the United States. Being this far behind in innovation, copyright laws in this way alone has proven that American copyright laws is a disgrace to the world given how commonplace DVD burning has become today. Copyright laws has failed America and Americans miserably and many Americans have to resort to purchasing software from overseas just to exercise their fair use rights. Yet, foreign copyright holders are trying to make Canadian copyright laws a mirror to American copyright laws such as the DMCA (Digital Millennium Copyright Act). Even the architect of the DMCA said that the DMCA was a failure, so why should Canadian laws resemble them? DRM has blocked progress in regimes that say you cannot circumvent them. Virus developers have used such laws to prevent anti-virus companies from protecting their own users. So reverse engineering a virus to help better protect the end user has proven to be a legal grey zone at best. In order to move forward, consumers need to be protected from digital locks as it infringes on their fair dealings rights. Open Source developers have repeatedly run up against digital locks as they try and make their software more useful to the end user. DVDJon, for instance, was drug into court for breaking the Content Scrambling System in an effort to make backing up information on DVDs possible. Digital locks also is a a barrier to competition. If you wanted to create a player that plays music from iTunes, you have to enter special licensing agreements first – licensing agreements unlikely to even happen anyway. What if someone creates a more innovative MP3 player? Sorry, but if it plays iTunes music encoded in a digital lock, it's illegal no matter how innovative that player is. This is just one of an endless supply of examples why digital locks are anti-competitive. Digital locks is anti-consumer, anti-innovation, anti-competitive and anti-Canadian. Canadians need to be legally able to break digital locks to exercise their fair dealings rights g) Censors and Wiretapping Have No Place in Copyright or Commercial Related Matters The modernization of investigation techniques act is a scary proposition and is probably best left in another consultation. However, we have seen in the world today that mechanisms supposedly to stop terrorism and child pornography (however absurd those claims are), these same mechanisms are looking extremely tempting for copyright holders. In Austria for example, newspapers wanted to use the data retention directives, where ISPs are forced to log all activities of their users, to enforce copyright. In Germany, book publishers wanted to use ISP blacklists to blacklist Rapidshare, a website that does little more than help send large attachments via e-mail to other users. The reason was because it could be used to infringe copyright and that the ISP blacklist must include Rapidshare in their blacklists originally intended to stop child pornography. Using national censorship or surveillance regimes to further commercial interests in any forms, especially copyright, is a highly inappropriate method to modernize copyright laws. h) Canada Needs an Active Fair Dealings Regime Fair dealings has served Canadians well. Commentary, critiquing and parody are essential for Canadians to participate in todays democracy. Things such as YouTube highlight the ever increasing need to expand on Fair Dealings. The difference between someone selling a bootleg CD of the latest album and someone running a slide-show with copyrighted music in the background is the equivalent to the difference of night and day. As such, if credit is given to the creator for a non-commercial work (hence, the remix culture), such an activity should be considered fair dealings. Speaking of remixing, if one were to remix a given song for non-commercial purposes, such an activity should also be protected in fair dealings as well. Activities such as sampling, remixing, referencing, etc. Has proven to be an essential form of free speech on the internet. As such, someone shouldn't be legally threatened because it contains even a hint of a copyrighted work somewhere in a new piece or feel that they could be threatened because they responded in a democratic fashion to a given work. i) A Safe Harbour Provision Belongs to Creators, Not Just the Super-Wealthy If you create a piece of software, you shouldn't be liable for the actions of the end user where copyright is concerned. This issue was brought up when Pandora had to block people country by country because of copyright concerns. Pandora was a service that took samples of works and allowed users to find music that had a similar style or mood. The service didn't even use full songs, only samples. This system was an excellent service to the end user and helped people discover music in ways they never thought possible. Unfortunately, the service had to block users from many countries including Canada because of concerns that, while probably legal in the United States, it might not be completely legal elsewhere. This web application had practically infinite possibilities, but has been now rendered practically irrelevant because of restrictive copyright laws. Already, ISPs have been trying to institute safe harbour provisions so that they are not liable for the actions of their users. It is appropriate to extend that right to software creators in a number of ways as it opens the doors for innovation. If someone was able to take a sample of music and say, “Here's a sample of other works that might be of interest to you”, such a service shouldn't be criminalized, but rather, be considered a legal service that brings value to both rights holders and content creators alike. In this way, copyright has restricted innovation again and this unnecessary barrier needs to be removed so that innovators can help positively modernize society and benefit the Canadian economy as new business models can emerge from such a provision. j) You Should Not Need a License to Use Free Material in Educational Institutions, Teachers Should Not be Forced to Restrict Educational Materials and Copyright Should Be Retained By Students Two of these issues was brought up under the Liberals Bill C-60 and was an immediate flash point of debate. The regime would force teachers to destroy educational materials within 90 days after the classes have ended. Additionally, you would have been required to pay royalties for freely available material in a given institution. Such an idea is incredibly counter productive and destructive as teachers have enough work to do let alone be forced to re-create their lessons for every semester they teach. Additionally, educational institutes are already strapped for cash and any extra and unnecessary royalties shouldn't even be considered because it's highly unlikely that people who put freely available material online will see any royalties that would have been collected in the first place. Therefore, there is no need to require royalties for freely available material online for educational institutes. The third issue may not be as well known amongst many unless you are a computer science student. Situations have risen up where students are forbidden from posting the source code to their software online because professors claim that the institute has banned the source code because it is technically an answer. The institute in question then asserts that they own the copyright of the given software. In some instances, the institute forces students to sign a contractual agreement saying that the institute owns the copyright to a given software or else they don't pass the course. Such a system is repressive and wrong and students need to have the right to retain copyright of their work without being bullied into giving it up. Copyright laws should protect the students in cases such as this. k) Copyright and Digital Locks are No Excuse to Bar Educational Purposes In classes such as film study courses, some teachers need to edit movies and compile their own edited version of different movies to help enrich the learning environment. If digital locks are going to be protected, an instructor would be banned from engaging in making their own specialized video clips. Again, expanding Fair Dealings is a must in situations such as this. Digital locks shouldn't have the ability to prevent such activity. l) A Photo Belongs to Everyone Involved in Creating It This is another issue brought up by the Liberals Bill C-60. There was the suggestion that the person in the picture doesn't own the rights of that picture, but rather, the rights belong to the photographer. In order to copy the picture, they need the authorization of the photographer in question. Such a regime is stressful and unnecessary as the rights should belong to both the photographer and whoever is in the picture. m) Patents on Progress is Anti-Progress There's been many instances where patents have served to do little more than serve lawyers and people who are considered “Patent sharks”. One excellent example of unnecessary patents is the case between Desire2Learn and BlackBoard. BlackBoard issues a patent on an internet interface designed for educational uses. Desire2Learn had a similar technology, so BlackBoard sued them out of the market for patent violations. Instantly, BlackBoard became a monopoly in this market. Another example is patents on the hybrid car. There's been a report in the Wall Street Journal where Toyota has made several patents on the hybrid car – not to necessarily help it build a better hybrid car – but to block out competition so they can take their time on building such a car. Climate change issues cannot wait because of patent disputes. Finally, the biggest patent issue is patents on human genes and other essential building blocks to life. Such patents have blocked critical medicinal advances on diseases. If a cure for Cancer was blocked because of a patent dispute, that would highlight the need to end patents on human life more than anything else. Patents are ending as many lives as they are saving and the issue needs to be addressed. Patents are blocking innovation in many fields and this critical issue needs to be looked at in a more forward thinking light rather than whatever the pharmaceutical industry is demanding. n) Suspicionless Border Searches of Digital Devices is Repressive and Wrong An internet leak on the Anti-Counterfeiting Trade Agreement proposed to conduct searches without suspicion of any forms of “digital storage devices”. It proposed that border patrol copy all the contents of a digital storage device such as laptops, MP3 players, external hard drives and other ways of storing digital content onto security servers. If nothing suspected of being pirated is found, that storage device would be returned to the owner. The act of confiscating personal property and digitally frisking travellers is an unnecessary strain on an already strained legal and security system, let alone Orwellian. Such proposed activity should be condemned as it's un-Canadian. o) Ratifying WIPO is Unnecessary and Not Needed The copyright industry has insisted for years that Canada is somehow magically under an obligation to ratify WIPO and introduce repressive copyright regimes in many ways including what I have described above. In fact, Canada is under no obligation to ratify WIPO no matter what false claims the foreign copyright industry claims. In fact, it's in Canada's best interest to consider it's own conclusions first instead of blindly ratifying WIPO because a very small minority with extraordinary lobbying powers claim is the right thing to do. p) ACTA Needs to Be Public and Heavily Scrutinized The Anti-Counterfeiting Trade Agreement needs to be brought forth to the public. Canada, so far, has worked hard at keeping ACTA a private and secret affair outside of the usual, “We had a good meeting, we're meeting in country X next.” Thanks to the efforts of a select few who are close to the negotiations of ACTA, the true colours of the dangerous agreement has come to light and highlights, no matter which side of the copyright debate you're on, the need for it to be brought forth into the public eye (whether to dispel rumours or increase public accountability) Since it would affect the criminal code of Canada, let alone copyright laws, ACTA needs to be released into the public and have it's own separate consultation. Canada can't just secretly negotiate the agreement, then just out of the blue, ratify it and make it law. Such a thing is undemocratic and, in a number of ways, could run afoul of the Canadian Charter of Rights and Freedoms judging by the leaked provisions so far. Given the secretive nature of ACTA, this should raise several alarm bells for many, let alone from the leaked information that has been posted online already. In conclusion, there's many areas copyright laws need reforming on, but most of the attempts in the past have only catered to a small minority of wealthy foreign interests. The government is looking for a made in Canada approach. So far, the only thing I would agree seems to have been made in Canada has been this consultation so far. I have an extremely long list of ideas on how to modernize copyright, however, judging by lessons learned by international incidences, these provisions I've suggested should help Canada be ready for the 21st century digital economy. 2.Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time? Canada needs to stop thinking of ways to further punish and isolate it's own citizens – first and foremost. Canadians want and expect fair and balanced copyright laws. What needs to happen is a regime that asks how copyright laws can benefit consumers. This kind of thinking, in my mind, is long overdue. If Canada wants copyright laws to withstand the test of time, they need to respect the consumer. If new copyright laws in Canada merely caters to ageing businesses that simply feel threatened by a change in technology, Canadians will feel that the laws do not apply to them and ignore them as a consequence, risking their legal well-being in the process. Unfortunately, technology is an ever-changing issue. As such, copyright laws may need to be frequently updated as a result of the ever-changing landscape of technology. What we know now might be completely different 10 or 15 years from now. In terms of future-proofing copyright laws, this is just the nature of technology this day and age. While you can't make a copyright law that will be just as relevant 50 years from now, we can make changes significantly easier by starting with what consumers can respect today. Todays consumer just figuring out how to download a song online today could be tomorrows entrepreneur who contributes greatly to the Canadian economy. Someone who streams a song today, discovering a completely new genre of music could be tomorrows next biggest musical sensation. If the consumer is respected today in the copyright reform process, copyright laws in the future will need fewer changes and reforming the laws would be significantly less likely to be like pulling teeth as the government is no doubt aware of today. Catering to a small handful foreign interests who continually rail against Canada over copyright has been an activity that has done nothing to serve the interests of other countries. Clearly, this isn't a way forward. As such, it makes sense to start thinking about what Canadian consumers want. 3.What sorts of copyright changes do you believe would best foster innovation and creativity in Canada? As I've already stated, copyright laws that respect Canadian consumers is the best way forward. People often forget that the very creators of content are often the biggest consumers of the content they create. Otherwise, how would those creators actually gain insight and be innovative in the first place? As Lawrence Lessig once said, “Innovation always builds on the past”. If we can't respect the Canadian consumer, we cannot respect the Canadian content creator and innovator. Previous copyright law reform attempts failed miserably to respect the Canadian consumer. As such, Canadian innovation cannot be fostered at all. Originally, copyright laws were good for 12 years. Afterwards, it expired and fell into the public domain. Today, in some countries, it's life plus 75 years. The longer the copyright term, the slower innovation occurs thanks to legal wrangling on who owns what “intellectual property”. If a society focuses 75% of it's resources on intellectual property laws and 25% on actual innovation where 24% is suddenly unauthorized, expect 75% of the creativity to be around copyright laws and 1% on actual creation. I want to live in a society rich in creativity, not rich in lawyers fighting over intellectual property. A society that focuses almost exclusively on laws rather than innovation is doomed to failure. As such, we need to open up the floodgates of innovation and watch society grow or let another country dominate us in terms of creativity and innovation. Our economy depends on innovation and creativity. 4.What sorts of copyright changes do you believe would best foster competition and investment in Canada? Far too often, we have a monopoly situation with regards to entertainment in Canada. You are either watching a product of one media conglomerate or another. As such, innovation and competition is stifled. I already mentioned how digital locks stifles innovation and creativity, but it's worth re-iterating that it stifles competition as well. If there's only one store legally able to sell music in Canada, that store has the power to pick and choose which artist “makes it” and which one does not. Digital locks help create that monopoly. The more we relax copyright laws in ways I've already mentioned in question 1, the more innovation and competition we have. Already, we've seen the electric car getting repeatedly squeezed out of the market place thanks to the pressures of car manufacturers to put in higher requirements and standards of vehicle manufacturing. This barely grazes the surface of what kind of competition atmosphere is in Canada. It's a theme repeated throughout different industries and copyright related industries is particularly bad for this kind of thing happening. The internet is a particularly good medium to foster creativity and innovation. If copyright laws are designed to restrict the flow of creativity, whether through criticism controls or otherwise, Canada will actually fall behind on the innovation front in a digital economy. Locking phones has been one way companies regulate what you can or cannot innovate. Apple touts it's iPhone as the most innovative, but their “app store” is controlled through moderation. If you innovate incorrectly, your "iPhone App” will get zapped. Copyright laws needs to be loosened to allow creativity to prosper in a digital economy. One cannot just look at the internet and blanket the whole thing with “it's just theft” because it's much more than just people downloading the latest hit album. 5. What kinds of changes would best position Canada as a leader in the global, digital economy? If Canada adopts a copyright regime of, for example, three strikes and your out, innovators would be scared to innovate period. For example, if someone posts a public domain work online where the copyright laws say the copyright on that work hasn't expired in a different country, should it just be an automatic strike just because someone says it's illegal? If I sample something from a film, say, a 2 second quote and include it in a song, should I automatically be guilty of copyright infringement and get my second strike? If I post family photo's online and someone says a certain part of the song sounds somehow similar to another song, should I be disconnected from the internet as a result? In France, it is expected for there to be 1,000 disconnections a day. There is no argument one can use that says that it's innovative to disconnect an entire country from the internet. An expanded fair dealings and creating a flexible copyright regime will foster innovation that will benefit society and increase Canada's robustness in the digital economy. The copyright industry has frequently pointed to slumping album sales as evidence that Canada needs more strict copyright laws. Yet when the question came up on how many Michael Jackson albums were sold, they didn't even know. How can one measure slumping CD sales when one doesn't even know how many albums are sold in the first place? Such arguments are ambiguous and lack any form of solid evidence. We cannot frame copyright laws entirely on anecdotal evidence of one side of the argument as we've done in the past. If we respect the consumer, we will also be respecting the innovator. Canadian innovators will be the driving force of Canada's digital economy. There are new business models forming on the assumption that copyright laws will be open and not oppressive. Tighter copyright laws as demanded by the ageing copyright industry would automatically mean that innovation will be killed in it's earliest stages of development. The only innovation that would be developed are ways that would help people dodge legal trouble. This is not the kind of innovation that Canada should be forced to foster. We should help those who are thinking of new ways to bring content to consumers in new ways. That will keep Canada on the forefront of the digital economy. After all, our future depends on it. Thank you very much for your time and patience.