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Introducing Canada’s DMCA

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I just placed a call to my M.P., Pierre Poilievre‘s office. Pierre wasn’t available to speak with me (there was a vote in the commons), but an aide promised that he would call back. I want to talk with him about the soon to be introduced Canadian DMCA, which Minister Prentice has been pushing.

I’m a businessman, and thus sympathetic to the concerns of so-called “rights owners”, but I’m also a culturally aware and concerned citizen of Canada who knows that many of the most admired artworks in the world — be they music, dance, sculpture or visual — have been created on the backs of giants that have come before. Artists quote from each other. Art is culture and thus both the property of the “rights owner”, and the public.

Copyright law is an attempt to recognize this happy dichotomy. Much like a patent, it gives the “rights owner” an exclusive monopoly over the use of a work for a period of time, before the work becomes part of the public domain. In most parts of the world, that monopoly extends to between 50 and 100 years after the creators death. After that point, the work passes into the public domain. That is the reason that Librivox, as an example, can make available free audio books of the classics.

In order to balance the cultural interests of society with the interests of the rights holder, most copyright regimes also provide “fair use” or “fair dealing” provisions. Individuals may excerpt portions of copyrighted works for specific uses, such as quoting another authors work in a document, or mashing up music from another artist.

Moreover, copyright laws frequently permit individuals to make non-commercial copies of works that they have obtained legitimately — a copy for personal use. That’s why, for example, we can rip CD’s into iTunes, and play them on our iPods.

So why am I trying to reach Pierre Poilievre?

First, I want to tell him that as a citizen, and as one of his constituents, I value these rights – the rights of fair use and the right to make copies for personal use. Not only do I take advantage of them, but I have a strong belief that society as a whole benefits from them.

Second, I want to make sure that he understands that the legislation being proposed will make it possible for “rights owners” to deny me those two rights. The technology of digital rights management, or DRM, makes it possible for “rights owners” to lock down their works in a way that prevents me from exercising my legal right to copy for personal use, and my legal “fair use” or “fair dealing” right to excerpt publicly. Not only that, but the legislation makes it illegal for me to circumvent the DRM put in place by the “rights owners”.

Third, I want to make it clear to Pierre that the penalties apparently being proposed grossly outweigh the offense. A teen swapping songs with friends is liable for $500 per infringement. Let’s say I share 10 CD’s with my friends, each with 8 tracks on them. That’s a potential $40,000 penalty. Doesn’t anybody remember being a teenage music fan? Making mix tapes for parties? Swapping music with friends?

It’s not just about music, though. It’s about all forms of digital media. The legislation being proposed would make it illegal to unlock a cell phone, for example, or to use a VCR to time shift a movie.

So, why have I been talking about “rights owners” rather than artists? Well, these days most artists don’t actually own their own works anymore. A product of the twentieth century, businesses have grown up which exist to distribute copies of artists’ works — the music labels, hollywood, book publishers, and newspapers are all examples. These businesses buy the works from the creators, distribute the works, and pay a royalty to the artists. Here’s the problem. All businesses that are about the creation and distribution of physical media are being impacted by the shift to digital media, be they newspapers, film, television, music, or visual arts. These old media businesses are in trouble.

The US DMCA is a 10 year old attempt to preserve those old media businesses by giving them special rights to prosecute digital media users. It’s been an utter failure, resulting in the spectacle of children being handed gross fines amidst the ever increasing digital distribution of content. To implement a Canadian version of the US DMCA at this point is the height of folly. It proves our government has learned nothing from the expensive and ultimately pointless US DMCA. It also demonstrates a lack of leadership and thoughtfulness on the part of Minister Prentice.

The concerns of “rights holders” must be balanced with the rights of the citizenry, and the benefit to society of existing copyright philosophies. And in a free market the government really doesn’t have any business legislating a dying business model back into existance, does it? After all, if we wanted to live in a command and control economy we could all move to North Korea.

That is what I want Pierre Poilievre to hear from me.

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{ 2 comments… add one }

  • Andrew June 3, 2008, 3:34 pm

    Kudo's – you can be the Canadian version of Lawrence Lessig.

    Hopefully Mr. Poilievre, has a grasp on how the google and the 'series of tubes' work.

  • Alec June 3, 2008, 5:02 pm

    I don't think I can be the Canadian Lessig Andrew. He's way more learned than I am. Michael Geist is much more like Lessig than me. Twelve years ago, though, it was Lessig's "Code and other laws of cyberspace" that was my introduction to the ways in which digital technologies could be used to usurp our individual rights.

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