Tuesday, December 18, 2007


I'm saddened there hasn't been more vocal support for Chris Moore's suggestion that the government appoint a royal commission on copyright. It seems to me a wonderful, workable solution, and a way to get this thing out of the various camps and into the public sphere in a less political way. Some folks are hung up on the fact that Moore would prefer WIPO ratification ahead of the commission, but I file that under "suggestions." With or without ratification, a commission would, I think, introduce true "fairness" to what has become, increasingly, an exercise in rhetoric. You know, except for me -- I seek truth by day and battle crime by night.

Keeping the commission on the table, I turn my attention to Howard Knopf, a law-talking guy whose own rhetoric has kept me pretty much away from his actual opinions for awhile now. Yesterday however, I was tipped to go and have another look. Low and behold, and to my surprise and slight embarrassment at closing my own mind, I find myself agreeing with a whole lot of what Knopf is saying these days. For instance:

"It would have been better in some respects to see the bill in all its detail..."

As well, while there are some points in the following I might want to get into a short interpretation or testing debate over (as noted by my BOLDing), I am generally very impressed by this reasoned and balanced list of suggestions for the government. It would make for wonderful discussion material at a royal commission. My strongest message in all of this has been even as we move into exciting new business models and access avenues on copyright, please don't minimize the actual law to the point of impotence. In my opinion, this list of suggestions, depending on interpretation, would not do that, and instead addresses the creators' and users' common concerns about access and fair dealing, without making an end run around the valid rights-holding necessary for a cultural economy. Let me stress that my BOLDing below does NOT mean I necessarily disagree with these points, but rather that I would want to see real, fair, public discussion on the interpretation of these points. Where would that discussion happen, you ask. Not on Facebook, I'm thinking.

From Knopf:

The Government should rework the bill that it obviously had profound second thoughts about and come up with one that ensures that:

1. ISPs should face no liability for users’ activities if they to respond promptly to “notice and notice” demands. “Notice and takedown” is not appropriate in Canada.

2. DRM and TPM protection measures must be minimal at most and not circumvent user’s rights to do anything otherwise legal under the Copyright Act or interfere with users’ first sale and exhaustion rights and must be directed at specific behaviour and not multipurpose technology.

3. Users’ rights must be extended to include such fair dealing rights as parody, time shifting and format shifting. They should be inclusive and not exhaustive, i.e. with inclusion of inclusive language such as “such as”....Broadcasters should get their ephemeral rights. There’s no need and no basis for a special educational exception for the internet.

4. The private copying levy scheme should be repealed.

5. Any “Making available” right must require proof of actual and prejudicial distribution.

6. Statutory minimum damages should be eliminated against:
a. Any person (individual or corporate) and any third parties serving them when there is a bona fide belief that the activity is fair dealing
b. Any person (individual or corporate) doing anything without any expectation of direct financial gain.

This government could earn immense respect from countless real Canadians and people who watch Canada around the world if it shows real leadership here.


1 comment:

Russell McOrmond said...

For the record, I am for the idea of having a "royal commission on copyright".

I am (and should be) hung up on WIPO Internet treaty ratification. Even if we got a bill like Howard suggested, the pressure from the USA would get worse (not better) to pass legislation to conform to their specific interpretation of the clauses that they -- after all -- authored in the first place.