Transcript Musical Myopia, Digital Dystopia: New Media and Copyright

Musical Myopia, Digital Dystopia:
New Media and Copyright Reform
A CANADIAN POLICY FRAMEWORK FOR TECHNOLOGICAL PROTECTION MEASURES
Charles Morgan
March 23, 2007
Outline
1.
Context
•
2.
Massive shift in technology has fundamentally altered the
underpinnings of copyright law
What should we do?
•
•
•
•
3.
Meet our WIPO commitments
Respect the Canadian copyright policy framework
Implement the Canadian policy framework for e-commerce
Act in a manner that is consistent with/respectful of concerns of
our key trading partners by adopting analogous TPM rules
What should we not do?
•
•
•
Adopt Bill C-60 (as it was): weakest protection in the world
Ignore either rightsholder's or user's concerns by forgetting the
"public interest"
Undercut a TPM protection regime by implementing overly broad,
untargetted exemptions
2
3
Context
1. Context
• Individuals are both consumers and
global publishers of digital content
• Pirates hack through encryption, pick
digital locks to release digital content
• An “arms race” between those who
implement TPM and those who overcome
them
• Massive technological change creates an
imbalance in traditional copyright system
(worldwide)
4
Context
• In 2005, BitTorrent accounted for 35 percent of
all the traffic on the Internet -- more
than all other peer-to-peer programs
combined -- and dwarfs mainstream
traffic (e.g. web pages)
• Over six months of surveying,
CacheLogic found that BitTorrent
accounted for 53% of all peer-to-peer
network traffic.
• Digital content is “free”
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6
What should we do?
a.
Meet our WIPO commitments
• Article 11 of the WCT and Article 18 of the WPPT
require:
• Contracting Parties shall provide adequate legal
protection and effective legal remedies against the
circumvention of effective technological measures
that are used by authors in connection with the
exercise of their rights under this Treaty or the
Berne Convention and that restrict acts, in respect
of their works [sound recordings], which are not
authorized by the authors concerned or permitted
how by law.
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Meet our WIPO Commitments
• There is a discretion as to how the Treaties can be
implemented. Stevens v Sony [2005] HCA 58 (6 October
2005). But this is not unfettered.
• The preamble to the WIPO Treaties makes it clear that
the protection is to be provided “in a manner as
effective and uniform as possible” emphasizing “the
outstanding significance of copyright protection as an
incentive for literary and artistic creation”.
• Limitations (1) must meet minimum standards set out
in Treaties e.g. provide adequate protection and
effective legal remedies, and (2) must be effective to
create incentives for authors.
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b. Respect the Canadian copyright
policy framework
• The objective of copyright is not a zero sum game between
the rights of rights holders and users
• Copyright is concerned with balancing the public interest in the
encouragement and dissemination of the works and “to prevent
someone other than the creator from appropriating whatever
benefits may be generated.” Théberge v. Galerie d’Art du Petit
Champlain Inc., [2002] 2 S.C.R. 336
• The means of achieving the proper balance is one that has
changed, and continually needs to be re-evaluated from time to
time, in response to technological change and to reflect
international developments.
• Parliament has the right to establish the appropriate balance.
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The Canadian Copyright Framework
• Is free good?
• What really benefits consumers, authors and rights holders?
• There is a direct link between protecting intellectual property rights and
innovation. See, EC, Proposal for a Directive of the European Parliament
and of the Council on measures and procedures to ensure the
enforcement of intellectual property rights, 30 January 2003, COM
(2003) 46 final
• “The Copyright Act (the Act) is an important marketplace framework law
and cultural policy instrument that supports creativity and innovation.
Many sectors of the economy, for example, those dealing with arts and
culture, communications and broadcasting, education and research,
either rely on or are affected by copyright.” Statement, Government
Statement on Proposals for Copyright Reform (March 2005)
10
Canadian Copyright Policy Framework
• Protecting rights holders from having others
unfairly appropriate their works is in the public
interest.
• Thou shalt not steal!
• The “capacity of the Internet to disseminate ‘works of
the arts and intellect’ is one of the great innovations
of the information age.” “Its use should be facilitated
rather than discouraged, but this should not be done
unfairly at the expense of those who created the works
of arts and intellect in the first place.” SOCAN v.
Canadian Assn. of Internet Providers 2004 SCC 13
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Implement the Canadian Copyright
Policy Framework
• “Intellectual property laws originated in order to
protect the promulgation of ideas. Copyright law
provides incentives for innovators -artists, musicians,
inventors, writers, performers and marketers - to
create. It is designed to ensure that ideas are
expressed and developed instead of remaining
dormant. Individuals need to be encouraged to develop
their own talents and personal expression of artistic
ideas, including music. If they are robbed of the fruits
of their efforts, their incentive to express their ideas
in tangible form is diminished.” BMG Canada Inc.v
John Doe 2005 FCA 193
12
c. Implement our policy framework for
e-commerce
•
Implement our policy framework for ecommerce (i.e. removing barriers to ecommerce) as applicable to digital copyright
• PIPEDA (addresses privacy concerns related to
data flow)
• Internet Sales Template (addressed consumer
protection concerns)
• e-commerce laws (establishes legal certainty and
removes red tape)
• now: implement missing link: TPM protections
(i.e. promotion of commerce in digital works
requires that we ensure that rightholders are
compensated)
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Acknowledge Privacy Concerns
• DRM systems give users choices and enable copyright
holders to be paid for uses of works.
• PIPEDA was passed to promote e-commerce knowing
that personal information was going to be collected,
used and disclosed.
• Are there differences between collection of
information for use in DRM systems and other areas,
e.g., libraries, rewards programs, hotels, book and
record clubs, retailers, credit cards, smart cards, GIS
systems etc?
• Where do the criticisms come from and are they
addressed by PIPEDA?
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Avoid “Digital Lock-up”
•“§ 1201. . . involves genuine tradeoffs: Congress made a judgment
that technological protection would foster innovation in new content
delivery mechanisms in order to provide consumers with a range of
new options for experiencing copyrighted works, recognizing that
technological controls might diminish the convenience of noninfringing uses. So far, the balance that Congress struck appears
justified. Section 1201 has provided substantial benefits to
consumers by encouraging the development of innovative new
business models for delivering sound recordings, motion pictures,
books and other copyrighted works to consumers.”
•June Besek, “Anti-Circumvention Laws and Copyright: A Report
From the Kernochan Center for Law, Media and the Arts”, 27 Colum.
J. L. & the Arts 389, 446-66 (2004) at P. 512-513.
•In 2003 the US Copyright Office examined whether technological
measures interfered with fair use and other limitations to copyright.
It strongly defended the use of these measures and found that on
balance they expanded product availability and consumer choice.
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d. Act in a manner that is consistent
with our key trading partners
• By adopting TPM rules that:
• cover circumvention of access control TPMs
• cover trafficking in access control TPM
circumvention tools
• cover trafficking in copy control TPM
circumvention tools
• provide for criminal sanctions for
particularly egregious or damaging activity
16
2. What should we not do?
17
2.What should we not do?
• Adopt Bill C-60 (as it was): weakest
protection in the world (amongst our
major trading partners)
18
Is Bill C-60 the Right Approach?
• No “adequate legal protection and effective legal
remedies” against the circumvention of TPMs.
• Clearly out of step with – and fall far below –
international trends and developments in the
international community.
• No compliance with the WIPO Treaties.
• No remedies to address many of the well- known
circumstances of circumvention, let alone those
that can be imagined and will be dreamed up by
“hackers” and “crackers” in the future.
19
How Flawed was Bill C-60?
20
• If amendments were not made to the TPM provisions Canada would
have provided one of the weakest - if not the weakest - TPM protection
in the world to its creators and rights holders.
• No other G8, EC country or other industrialized country had such low
levels of protection.
• Countries with higher levels of protection would include: United States,
Australia, EU member states such as Belgium Cyprus, Czech Republic,
Denmark, Finland France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Portugal, Slovak Republic, Slovenia, The
Netherlands, United Kingdom.
• Other countries Belarus, Bulgaria, CAFTA members- Costa Rica, El
Salvador, Guatemala, Honduras, Nicaragua and the Dominican Republic
- and Ecuador, Indonesia, Paraguay, Peru, Moldova, and Ukraine.
RealNetworks, Inc. v. Streambox, Inc., 2000 WL
127311 (W.D. Wash. 2000)
• RealNetworks obtains injunction in US
under DMCA against Streambox that
distributed VCR product that enables
end-users to circumvent access control
TPM (“Secret Handshake“) and copy
control TPM ("Copy Switch”).
• Circumvention permitted users to access
and download copies of RealMedia files
that are streamed over the Internet.
• Without the security measures afforded
by RealNetworks, electronic methods of
distribution could not succeed. End-users
could make and redistribute digital
copies of any content available on the
Internet, undermining the market for the
copyright original.
• Bill C-60 does not contain anti-trafficking
provisions. So there would be no remedy
against Streambox.
• A consumer’s use of VCR to circumvent
the “Secret Handshake” would not be
caught, as it is an access control TPM.
• The circumvention of the “Copy Switch”
copy control TPM would not be caught
unless it could be proved that it was
done for the purpose of infringement.
• Using Copy Switch to facilitate
infringement by others would not be
caught either.
21
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 22
(2nd Cir.2001)
• Motion picture studios brought
motion to enjoin website owners
from posting or linking to “DeCSS”
(a program that decrypts digitally
encrypted movies (DVDs) protected
with CSS (content scrambling
system).
• The distribution of DeCSS enables
the circumvention of CSS and the
illegal copying and use of decrypted
movies.
• Bill C-60 contains no provisions
prohibiting trafficking in anticircumvention tools.
• Bill C-60 does not protect against
the circumvention of the access
control technology of CSS.
• Claims against users under
S.34.02(1) would fail unless it could
be proved that the circumvention
was for the purpose of infringement.
The circumventing of the TPM by
itself would not be a violation of
S.34.02(1).
Stevens v Kabushiki Kaisha Sony Computer
Entertainment & ORS [2005] HCA 58
• Sony games contain an access
code TPM on each CD Playstation
game that is read by a chip in the
Sony Console.
• This device prevents unauthorized
(pirated) CDs from being made as
they won’t play on Sony consoles.
• Stevens sold “mod chips” and
installed them on Playstation
consoles effectively overcoming
Sony’s access control TPM.
• Bill C-60 does not cover the
trafficking of circumvention tools
such as “Mod Chips”.
• Individual consumers using “mod
chip” game enhancers to
circumvent the access control TPM
in games would not violate
S.34.02(1) even if done for the
purpose of infringement or
facilitating infringement as an
access control TPM is not a
“technological measure” as that
term is defined in S.1(2).
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U.S. v. Elcom Ltd., 203 F.Supp.2d 1111 (N.D.Cal.
2002)
• ElcomSoft was criminally prosecuted
under the anti-trafficking provisions of
the DMCA for selling an anticircumvention tool called the
Advanced eBook Processor ("AEBPR").
• It allowed a user to remove the copy
control TPM from electronic books
distributed using Adobe Acrobat eBook
Reader.
• This enabled the book to be easily
reproduced and electronically
distributed as a naked PDF file.
• Bill C-60 does not have any criminal
provisions.
• Bill C-60 also has no prohibitions
against trafficking in anticircumvention tools.
• The use of AEBPR by a consumer would
not infringe S.34.02(1) unless it could
be proved that the user did so for the
purpose of infringement.
• The circumvention of the copy control
TPM by itself would not be infringing,
nor would using the circumvented
ebook for purposes not paid for by the
consumer.
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b. What is Needed?
• Protection against “preparatory acts” of
trafficking in access control and copy control
circumvention tools and services.
• Protection against acts of circumvention
including access control circumvention.
• Effective legal remedies including criminal
sanctions in serious cases.
• Must protect Canadian authors and rights
holders to enable development of new business
models.
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c. What should we not do?
• Undercut a TPM protection regime by
implementing overly broad, untargetted
exemptions (look to Singapore
agreement as example of reasonable
language in this regard)
• E.g.: circumvention allowed if intended
for “fair use”!
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