My copyright consultation submission

I made a submission for Canada’s copyright consultation yesterday, which is reproduced below. If you haven’t made a submission yet, you still have time; the government has extended the deadline until tomorrow night. Their website includes full details on how to send in a submission. Without further ado, here is my submission:

My name is Denver Gingerich. I write software for a living and in my free time. I maintain a blog at where I discuss software, free content, and copyright.

Copyright is very important to me in both my day job and my free time as it defines how others can use what I create and how I can use what others create, including whether I can build upon that work or even access it at all. I will describe the areas of copyright law that affect me the most and what I think the best plan of action is for each.

A. Technological measures (TMs)

Copyright holders sometimes apply technological measures to content in an attempt to prevent the user from engaging in certain uses of the content. Copyright holders enforce these restrictions through licensing bodies such as the DVD CCA, who decide which manufacturers of players for that content will receive a key to unlock it, based on whether they effectively prevent the user from engaging in the “forbidden” activities. Examples of forbidden activities include skipping previews on a DVD, copying music purchased online onto a CD (normally permitted by Canada’s private copying levy), and using speech synthesis to read an e-book to a blind person. Note that the forbidden activities I’ve listed are not necessarily defined explicitly, but are often implied by other forbidden activities.

Currently in Canada, TMs can be circumvented as long as the circumvention is for non-infringing purposes, such as watching a DVD on the DVD player of your choice (including players that have not been reviewed by the DVD CCA) and playing music on the portable music player of your choice. This promotes competition in the DVD and music player markets because anyone can enter the market, even if they have not been approved by the relevant licensing body (who might not approve anyone at all, as in the case of Apple’s locking of iTunes content).

With the DMCA, the United States effectively made any circumvention of TMs illegal, even if done for otherwise non-infringing purposes such as those described above. This is very detrimental to competition as it facilitates monopolistic control of content through licensing bodies, which may provide keys only to certain companies or to no one outside a particular company.

Even though there are exceptions to the anti-circumvention provisions in the DMCA, they are effectively useless because of the blanket ban on distribution of circumvention tools, which are necessary to perform the circumvention in the first place. Bill C-61 would have introduced these same problems into Canadian copyright law.

Given all of this, it is imperative that any TM anti-circumvention provisions added to Canadian copyright law are directly linked to copyright infringement and that the creation, use, distribution, and import of circumvention tools are not restricted in any way. This will allow Canadians to use copyrighted works for non-infringing purposes, including those allowed by our fair dealing laws.

B. Crown copyright

As a Canadian citizen, I pay for the creation of government works through my tax dollars. Currently, I do not have permission to share these works because the government holds copyright on them by default. As an example, I recently had to choose between violating crown copyright by posting videos of the copyright consultation town halls online or playing it safe and reducing the ability of Canadians to engage in these important events. Because posting these videos is time-critical (I posted one video 7 minutes after the town hall ended), it is impractical to ask permission before posting such events. If crown copyright were abolished, I would not have to choose between helping my fellow citizens or abiding by the law; I could do both.

Wikipedia and the associated Wikimedia Commons are some of the largest collections of freely-redistributable content on the Internet. They are an invaluable resource to myself and many others. Users have contributed thousands of public domain works produced by the US government, which does not claim copyright on works it creates. As a public good, Wikipedia benefits immensely from these contributions. Abolishing crown copyright in Canada would allow Canadians (and indeed anyone) to document Canada’s history and culture in a much richer way than they can now.

For more information on this topic, see

C. Public domain

After the copyright term on a work ends, it rises into the public domain. This is a very important step in the life of a work as it allows other to freely build upon that work. In Canada, the copyright for most works lasts for 50 years after the author’s death. This is more than adequate as most revenue generated from a work under copyright is made within the first 10 years of publication. Furthermore, long copyright terms can actually hurt culture because people must wait longer to build on works they are familiar with. With this in mind, the government must not increase the term of copyright in Canada.

D. Notice and notice

As the maintainer of a blog, it is important that information which I make available online is not removed without my permission. Currently, information on web sites and blogs hosted in Canada cannot be removed without a court order thanks to the convention of “notice and notice” where a web host passes on any notice of potential infringement to the person who posted it, who can then choose to remove it or not based on the merit of the notice. In contrast, web hosts in the United States routinely remove information on sites they host because of the DMCA’s “notice and takedown” provision, where they are liable for any copyright infringement unless they take down the (possibly) infringing content soon after being notified.

Often the removed information is not infringing at all because it is covered under fair use. The “notice and takedown” provision is frequently used to remove information that is critical of a certain person or organization, as in the case of YouTube videos removed by the Church of Scientology. Because of this, it is important that Canada officially codify the “notice and notice” convention into law, as Bill C-61 would have done. We cannot allow a “guilty until proven innocent” approach, such as “notice and takedown”, to define when information is taken away from the public.

Thank you for conducting consultations to better understand Canadians’ views on copyright law. If you have any questions about my submission or would like to know more about any of the topics I’ve discussed, please e-mail me; I would be happy to provide more details.

I am proud to be Canadian. I trust that any changes to Canada’s copyright law will be made in the best interest of all Canadians.

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