During July-Sept 2009, the Government of Canada held public copyright consultations, with an eye to writing new copyright law. They asked for submissions addressing five topics.  Here’s one of my submissions, on the “test of time“. It’s hard to tell what will become of these consultations, because the government may fall (again) before Parliament gets a chance to pass a new bill. My submission did eventually show up on the official submissions page, but I still want to publish it for the record on my own blog.  I have two more submissions, one on “Copyright and you (me)” which I published last month, and one which I’ll dribble out in the coming days.

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

A: The largest single dynamic is the change in delivery of cultural works from physical containers (paper books, CD disks, celluloid film) to digital information (ebooks, music files, computer networks).

Physical containers are:

  1. either immediately accessible by humans (books), or accessible via limited machines which did not copy the container.
  2. expensive to duplicate, and expensive to transport.
  3. subject to quality loss at every duplication.
  4. accessed in ways which the publishers do not control, and cannot turn off: reading the book, operating the film projector.  Two decades after a book is printed, a human can read it just as freely as when it first came off the press, even if the publisher went broke and the printing house junked its presses.
  5. freely transferable to another person, who then could access the work.

In contrast, digital information:

  1. can only be accessed through machines (computers, consumer electronics) which must by their nature make copies of the information as part of access.
  2. cheap, nearly free to duplicate and transport
  3. in many cases (let’s say all, for the sake of argument) duplicated with no quality loss
  4. accessed in ways (ebook readers, DVD players, computer software) which the publishers and their technology providers do control, and which in general can only be used with their active consent and cooperation.  Two decades after an ebook is released, the publisher might be out of business and no longer able to unlock the book; the ebook reader might be no longer supported; the software no longer running on modern computers.
  5. transferable to another person only by virtue of making a copy of the information, thus by sufferance of the copyright holder an their access control technology.

It’s a fact of life for artistic and cultural works, that most of the vast numbers of works created have little commercial value.  Those that do have commercial value tend to hold it only for a few years, a short time compared to the length of copyright.  Thus almost all works spend almost all their life as commercially not very valuable, and thus not worth much attention by a commercial publisher.

If the work was in a physical container, people could still use and enjoy the work, even though the publisher had no reason to pay attention to it. But when the work is digital information, and access requires copying, then copyright intervenes in people’s use and enjoyment of the work, despite it not being commercially interesting. If the publisher put technological access controls on the work, it would take effort to remove the controls (publish an uprotected version). How likely are publishers to make that effort precisely when the commercial value of a work has dropped off?

Thus, to restore the public’s ability to use and enjoy works which are under copyright but not commercially interesting, and the ability to free works for the public domain when copyright expires, it is essential for the public to have tools which can access works protected by technological controls — i.e. copy protection cracking tools.  It is essential for the public to be able to use such tools in the absence of positive efforts by the publisher to prevent access to the works.  A copyright holder which really wants to should have the right to withhold copyrighted works from the public, but the default path should be that in the absence of commercial interest, the public is able to access the works.

There should be some standard licensing fee schedule and terms which a person can subscribe to, in order to have the right to access works which are not commercially interesting. The proposed lawsuit settlement in the USA between Google and publishers is an example of this — though that proposal unfairly entrenches Google in a privileged position, and Canada should work out something that is fair to all every interested redistributor. There should be an escrow of unlocked copies of content, and/or protection of the right to use copy protection cracking tools if the rights holder hasn’t provided an access path themselves.

The rules for balancing the private control of works, in exchange for their eventual arrival in the public domain, must no longer be defined strictly in terms of copying.  They must be defined in terms of a balance of public and private interests, unfolding over the life of a copyright in a way that steers works safely into the public domain and back into our shared culture by the end of a limited time.

In the course of time, the details of digital technology will change. But the broad themes above will remain valid.  Canada’s copyright laws must not be defined in terms of specific technologies, but in terms of broad themes like the ones above.

Postscript: I don’t pretend that these ideas are particularly original; I mine heavily the ideas of  visionaries on the subject like Lawrence Lessig (especially) and Nina Paley. Nor do I pretend that I’m a particularly important exponent of them. The whole point of the consultation was to gather input from ordinary folk in Canada, and I do think that I am ordinary.  I see my role as swelling the chorus which is voicing these ideas to the Canadian government.

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