My name is Ian Kerr.  I am a Full Professor at the University of Ottawa, where I hold a four-way appointment in the Faculties of Law and Medicine, the Department of Philosophy and the School of Information Studies. In 2001, I was awarded the Canada Research Chair in Ethics, Law and Technology, the mandate of which included the study of digital copyright reform. This Chair was renewed in 2005. I was also the Principal Investigator of On the Identity Trail, a four-year Collaborative Research Initiative, which received one of the largest ever grants from the Social Sciences and Humanities Research Council and also included as part of its mandate an investigation of the privacy/identity implications of digital copyright.

I have been a participant in copyright reform issues for many years.  In 2003, I conducted a pair of studies for the Department of Canadian Heritage addressing a range of policy considerations associated with the use of technological protection measures (TPMs) as a means of extending copyright in digital environments. These studies investigated the various policy choices implicated in the decision to provide legal protection to TPMs in the context of Canadian copyright law. I determined that TPM protection was unnecessary and excessive, risking several unintended consequences that would undermine copyright’s delicate balance. In 2005, I published Canada’s first study of the privacy implications associated with the anti-circumvention provisions set out in Bill C-60 (Canada’s first legislative attempt in response to the 1996 WIPO treaties), provisions that aim to protect the copyright industries from individuals using devices to circumvent technological protection measures (TPMs) and digital rights management systems (DRM). I determined that the proposed anti-circumvention laws fail to adequately address any aspects of the privacy implications of DRM, despite the obvious privacy threats that automation, cryptographic techniques, and other DRM technologies impose. More recently, in 2009, I co-published an investigation of the Canadian copyright litigation in which the recording industries sought to compel disclosure of the identity of defendants alleged to have participated in peer-to-peer file sharing. I found that such disclosure is inappropriate in the circumstances and requires a much higher threshold of proof of wrongdoing. In addition to the above-mentioned studies, I have published a number of other academic and popular press articles relating to copyright and have appeared before Parliamentary Committees and in several Canadian documentaries on the subject.

Having had the opportunity to contribute my views on these subjects in public fora and easily and freely available academic publications (iankerr.ca), my response to the questions raised in the consultations will be (relatively) brief. Like my colleague Michael Geist, I am hopeful that this consultation will be viewed as merely the beginning of an ongoing effort that provides all Canadians with the opportunity to register their views through an open, comprehensive committee process for both domestic and international copyright laws.

Finally, the remarks offered in this submission are made in my personal capacity as a Canadian who has a number of serious concerns about the future of Canadian copyright law.

1. How do Canada’s copyright laws affect you? How should existing laws be modernized?

Copyright laws affect me in exactly the same way that they affect every individual who lives in Canada. All of us depend on access to a broad array of information to live our daily lives. Since copyright law permits copyright owners to limit our access to that information during the term of the copyright, all Canadians depend on copyright law to carve out a broad and flexible set of user rights, exceptions, and exemptions in order to strike an appropriate balance. To date, no such balance has been achieved. Largely on the basis of mistaken assumptions about the risks posed by digital networks and the false assumption that the copyright industries must preserve and maintain traditional business models at all costs, both of the previously proposed copyright reform bills overprotected copyright owners at the expense of sufficient balancing provisions needed to protect Canadians from excessive control on the part of copyright owners. The Supreme Court of Canada has recognized that excessive protection afforded to copyright owners would do as much harm as providing no protection. This obvious truth, which is recognized in the very fact that copyright exists only for a limited duration, was not adequately contemplated in either of the previous bills. As a citizen, I depend on copyright’s delicate balance. There is no point in having a flourishing private sector and a world leading digital economy if it does not redound to the benefit of all Canadians. In fact, it would be impossible to truly lead without balanced legislation.

Copyright law also affects me in ways that it does not affect all other Canadians. As a professor, I am also an author and creator. Much of my labour is aimed at producing books and other works subject to copyright. Like other creators, I rely on copyright to generate sufficient demand for my books to enable me to negotiate with publishers to produce those works and share royalties with me. As a writer, copyright provides part of my incentive to create. Because I am a professor (rather than a fulltime author), I am fortunate not to depend entirely on this process to earn a living. As such I am perhaps more tolerant of copyright breaches than other creators would be. Certainly this is true in an educational context, where I would be more willing than my publisher to allow students access to my work if they did not have the means to pay.

In any event, as an author and creator, I recognize that the traditional approach to copyright enforcement as practiced by the recording industry and other copyright maximalists is no longer appropriate in a digital age. And, I have put my money where my mouse is. My most recent book—which sells for more than $100—is freely available online under a creative commons licence so that anyone using the electronic version for non-commercial purposes with attribution can download it in its entirety. This decision resulted in more downloads on the first day of its launch than its entire print run. Not surprizingly, more copies of the book will be sold using this model than through the traditional approach. The publishing industries are slow to realize this. Alternative copyright models such as the creative commons licence I described provide one means of modernizing copyright law, better suiting the needs of copyright owners than an “all rights reserved” approach. There are a number of other things than must be done in the legislative context to modernize copyright law that will be mentioned in response to some of the other questions posed in this consultation.

2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

The concern that motivates this question is that law and policy are perceived as forever out of step with the rapid pace of technological development. To some extent, this concern is overblown. As our Supreme Court has recognized, we do not simply eschew fundamental values in the face of new technological developments. The difficult challenge is to develop a framework that is not only flexible but, at the same time, firmly anchored around a core set of principles that is not subject to change alongside technology’s flavour of the week.

To take an example, the problem with the WIPO 1996 approach to copyright adopted in both of the former proposed legislative regimes is that it was premised on the TPM/DRM technologies of the day. The better approach would have been to adopt a set of principles that reflect longstanding values and develop a framework around them. (For example, unlike the WIPO anti-circumvention provisions, the CSA Fair Information Practice principles that form the basis of our federal sector privacy laws are easily adapted to new and emerging technologies.)  Although “technological neutrality” will not solve all of the challenges associated with regulating disruptive technologies, the undue emphasis on digital rights management as the panacea of copyright and the excessive protections afforded to those technologies circa 1996— without proper counter-balances—has led to dangerous legislative proposals that would most certainly not achieve the objectives set out by the Ministers in this consultation.

I maintain my longstanding belief that anti-circumvention and anti-device provisions are unnecessary in Canada. At the same time, I realize that there is incredible pressure on the Government of Canada to adopt such provisions. While I do not believe that such pressures should win the day, if the Government wrongly decides to sway to such pressure, the anti-circumvention/device provisions must be narrowly tailored to acts of copyright infringement. Many acts of circumvention and devices that could be used to circumvent also have non-infringing uses. It will be difficult if not impossible to provide a balanced approach to copyright by introducing para-copyright protections such as these. It will also be difficult if next to impossible to achieve short or long-term balance through such models. Such a legislative approach would be akin to regulating the discussion on Twitter by banning FaceBook.

One example of a regime that would better withstand the test of time is the “fair use” doctrine. The current Canadian approach (“fair dealing”) is far too narrow and is based on overly specific circumstances. Instead of revising the fair dealing provisions in a technology-specific manner that happens to align with today’s digital technologies, a “fair use” approach based on a more flexible framework of principles that befit the values of a balanced approach to copyright would go a long way. I would recommend that we adapt a fair use model.

3.  The Other Questions

The other questions raised in this consultation all centre around suggested means of improving innovation and creativity, competition and investment, and the leadership role for Canada in a global digital economy.

In my mind, perhaps the most important reform in many of these areas pertains to End User Licence Agreements (EULAs). EULAs are all to often used to usurp copyright’s balance in favour of copyright owners. As I have said in my published writings, “End user licences are becoming the rule and content providers the rulers. With increasing frequency, the terms of these licences are used to override existing copyright limitations.” If a significant aspect of the Copyright Act is to balance the rights of owners alongside the rights of users, specific limitations on the scope of EULAs must be adopted. I have discussed how to go about this in my published work.

There are many other issues that need to be addressed. Having followed the submissions to date, there are a number of other suggestions already made that I would adopt in addition to the above suggestions, including the following:

·      adopt a notice-and-notice approach for ISPs

·      do not lengthen the term of copyright

·      create additional rules that foster and strong public domain

·      establish a “good faith” defence in parallel with a workable “fair use” doctrine

·      establish a defence for private, non-commercial use

·      add a parody exemption

·      reject the three-strikes approach

·      modernize exemptions for back-ups and other archiving techniques

Since the reasons for each of the points enumerated above have been carefully discussed in other submissions, I will not discuss them further here.

It seems fitting, as an author, to end my submission with some of my own recent writing. What follows is an opinion editorial that I have written specifically with this consultation in mind.

Copyright law in the age of the Kindle

A little over a year ago, in one of the most important privacy cases ever heard by the Supreme Court of Canada, Justice Ian Binnie sought to allay concerns that we are sleepwalking into a surveillance society with the following remark: “On these occasions, critics usually refer to ‘Orwellian dimensions’ and 1984, but the fact is that 1984 came and went without George Orwell’s fears being entirely realized, although he saw earlier than most the direction in which things might be heading.”

Like most judicial pronouncements with staying power, I still haven’t quite figured out what he meant by this.

Was the judge simply saying that the worries expressed by privacy advocates are sometimes overblown? Or was his clever, lawyerly use of the word “entirely” a tongue-in-cheek expression of genuine concern?

Either way, Justice Binnie’s remark has caused me to wonder what it would take to say that Orwell’s fears are “entirely realized”.

I am guessing the threshold must be rather high.

After all, Orwell conjectured about a world that even David Lynch would agree is wild-at-heart-and-weird-on-top. It wasn’t just about big brother, doublethink or the telescreen. There was also that crazy stuff about the “Ministry of Truth” and its ability to make information appear and disappear on a whim. As Orwell described it:

This process of continuous alteration was applied not only to newspapers, but to books, periodicals, pamphlets, posters, leaflets, films, sound-tracks, cartoons, photographs — to every kind of literature or documentation which might conceivably hold any political or ideological significance. Day by day and almost minute by minute the past was brought up to date.

Powerful stuff, 1940s science fiction is.

Skip-forward exactly 60 years to the summer of 2009.

There I was on a perfect July day at the Universitat de Barcelona, about to launch into my first lecture on Isaac Asimov’s “Laws of Robotics”. Just before doing so a law student form Puerto Rico interjected, asking me about the device that I was using to read my lecture notes.

“Its called an iLiad ”, I told her.

“Is that the same thing as a Kindle?” she asked, referring to Amazon.com’s increasingly popular e-book reader.

“Nope,” I said. “Apples and Oranges. The Kindle was designed first and foremost as a distribution vehicle for Amazon books, so its architecture is a proprietary system that uses digital rights management (DRM) to tether the downloaded content to the device, preventing copies from being easily made or transferred to other readers or machines. My iLiad, on the other hand, is an open source device that uses a Linux operating system, allowing anyone with know-how (not me!) to tinker with it and to create applications that improve its functionality for the broader community of users. I didn’t buy my e-reader to download and consume popular novels. I chose the iLiad because it allows me to access a broader range of research documents not to mention greater control over the information stored on my device.”

It never really occurred to me at the time just how central my somewhat geeky response to that seemingly random question would be to the course itself, with its lofty ambition of examining how our philosophical conceptions of the law and our corresponding policy approaches change in the face of autonomic computing and robotics.

My lecture that day was an introduction to Asimov’s brilliant idea that we can mitigate people’s fears about robots (the “Frankenstein Complex”) by programming the machines to “obey” certain rules. In essence, his three “Laws of Robotics” provided a system of automated permissions for what people could and could not do with robots. Instead of developing rules of human conduct and imposing them on people (as law and morality seek to do), the “Laws of Robotics” were rules designed by humans but programmed directly into the machines. For example, if a human tried to get a robot to injure another person or steal her books, the robot would shut down, refuse or otherwise render itself incapable of carrying out the command. It wasn’t easy to convince or trick the robot into wrongdoing. The robot’s positronic brain was hard-wired to do no evil. 

Not surprisingly, my students loved thinking about the law and rule-following/rule-breaking behaviour through the lens of Asimov’s adorable robots—Speedy, Robbie and George-10. The challenge, of course, was to get them to see that Asimov’s approach is by now as much science fact as it is science fiction.

As though by divine providence, a teachable moment was delivered by the Google Alerts robot to my inbox on the morning of my second lecture. Reports were starting to circulate that Amazon had auto-deleted copies of George Orwell’s 1984 and Animal Farm from law-abiding Kindle owners. According to the news reports, Amazon mistook a “no” for a “yes” regarding the publisher’s decision on e-books. Fearing serious sanction from the copyright owners after selling many e-copies, Amazon capitulated. Using its robotic powers to trespass within the digital libraries of all Kindle customers, Amazon electronically “seized” Orwell’s books. It was a classic Orwellian moment—with one mouse click, the Ministry of Truth expunged the offending material without notice or permission, rectifying a mistaken past by replacing it with a perfected present.

Given that the driver of this news item was copyright, I sent my students the story and asked them to think about how automation technologies will change the way we think about copyright law.

It didn’t take long for some of them to point out that the Kindle’s DRM shifts the balance between the owner’s ability to control and the customer’s ability to access or use a work subject to copyright. Even though the end user licence for the Kindle suggests that once you “purchase” an e-book its yours, and even though the copyright in 1984 expired in Canada and several other countries back in 2000 (putting the work back into the public domain), Kindle owners found out the hard way that human laws can be superseded by robotic laws. The Kindle-1984 SNAFU made it perfectly clear that, marketing aside, electronic books are not the same as paper ones. DRM can be used to change the rules.

As teachable moments go, all of this timed rather nicely with the current events accompanying our third day of class. On July 20, Canada’s Ministers of Industry and Canadian Heritage and Official Languages jointly launched nationwide consultations to solicit Canadians' opinions on copyright reform. Specifically, they expressed an interest in knowing how Canadians are affected by copyright laws, how these laws should be modernized in harmony with Canadian values, what reforms would best foster creativity, innovation, competition and investment, and what kind of changes to the law would best position Canada as a leader in the global digital economy.

Although there is a longer story to tell here that is told much better by my brilliant colleague Michael Geist (speakoutoncopyright.ca), suffice it to say that the previous and current approach to copyright reform is misguided. The previous Liberal government tabled Bill C-60, which followed the US approach by including an “anti-circumvention” provision. This approach makes it illegal for you to circumvent or otherwise alter the robotic laws that permitted Amazon to auto-delete 1984. The Conservative government followed suit with Bill C-61, which would have given even greater protection to DRM. It too died on the order page when the first Harper government fell. Finally, two new Conservative Ministers are reconsidering these issues under the current copyright consultation.

During all of this, Jeff Bezos, CEO of Amazon, has been groveling to his consumer base, admitting that its actions were “stupid, thoughtless, and painfully out of line with our principles.” He promised that Amazon would “use the scar tissue from this painful mistake to help make better decisions going forward.”

What he didn’t promise was to remove the DRM or re-write its robotic laws so that The Ministry of Truth’s auto-delete functionality is no longer possible. As Cory Doctorow points out, Amazon also won’t tell us much about whatever else is lurking in the Kindle.

I am uncertain whether any of these events meet Justice Binnie’s threshold for genuine Orwellian concern.

What I do know is that copyright 101 is forever changed. Copyright law in the age of the Kindle is no longer merely about ownership of the means of (re)production. It is also about access to knowledge, personal privacy, the citizen’s right to read anonymously and the consumer’s right to control the devices that she owns.

When the Ministers complete their copyright consultation on September 13^th and begin to draft new laws projected for the spring of 2010, I hope that they recognize the power of the laws of robotics, reject an approach that would enable The Ministry of Truth, and offer-up a legislative regime that truly balances the copyright owners interests with the rights of citizens, as twice promised.

Yours very truly,

Dr. Ian Kerr

Canada Research Chair in Ethics, Law and Technology