December 2007

"A balanced approach to intellectual property rights is vital to economic growth."

Committee for Economic Development

In the Canadian copyright reform arena, the events of early December 2007, changed everything.

In late November, it was widely anticipated that new copyright legislation would be introduced in the model of the controversial American Digital Millennium Copyright Act (DMCA). The bill was rumored to include harsh "anti-circumvention laws", which grant software distributors the right to seek legal remedies for circumvention of technological locks on content. In response, veteran Canadian copyright advocates issued an appeal to Canadians to take an interest in the bill and to call for fair and balanced copyright.

Canadian citizens answered that call in unexpected numbers, both online and offline. A Facebook group, called Fair Copyright for Canadians, grew to over 25,000 members within two weeks, and provided grassroots advocacy tools to citizens. A new website, called CopyrightforCanadians.ca, established itself as a centre for news on the bill and consumer advocacy. Using these tools, Canadians wrote letters, met with politicians, and demanded balance. With their words and their actions, not only did Canadians delay the introduction of the bill until next year, but they put copyright in the spotlight and showed legislators that fair and balanced copyright can capture the public imagination.

Industry Minister Jim Prentice now has the opportunity to hear from groups representing Canadian perspectives on copyright, hopefully resulting in a better and more balanced bill.Open source developers have a unique relationship with copyright, with licences and practices enabling them to flourish in the copyright ecosystem. Open source software businesses are uniquely situated to comment on the copyright balance, since open source developers rely on copyright both for protection of their software, and for freedom to access the software of others. In the consultation process to come, the Canadian Software Innovation Association (CSIA) is in a position to be the voice of the Canadian open source industry.

The CSIA is a growing coalition of businesses, nonprofit organizations, individuals and user groups working in the business of free and open source software. The CSIA is an organization that advocates copyright laws in Canada that continue to support creativity and encourage innovation in the Canadian software industry while offering users necessary freedoms. The CSIA is being formed around a white paper, available at the CSIA's website. The white paper builds a case for Canada's need for copyright laws that support the open source model. The white paper offers three points to support this case: i) an account of Canada's open source business community and the economic contribution of open source to the marketplace; ii) an account of open source and its relationship to copyright law; and iii) an account of how anti-circumvention laws undermine open source software.

The white paper also offers a series of recommendations for addressing anti-circumvention laws. There is no such thing as a good anti-circumvention law, but if Canada is committed to implementing such laws, then it should do so in a way that minimizes potential disruption to the open source business model. The CSIA offers guidance to the government on how to do so.

This short article offers a summary of the CSIA white paper, and issues a call to arms for open source developers: good laws don't just happen; law-makers need to understand the interest is in the balance. The CSIA offers a way to make your voice heard in copyright policy debates.

Economic Contribution of Open Source

Open source software (OSS) offers many practical and economic benefits to both open source businesses and users. Open source offers the public sector and small, medium, and large businesses alike, productivity and efficiency gains and other practical benefits such as specialization and scaling to meet a user's specific needs. Viewed more broadly, the open source model is a hotbed of innovation that contributes to Canada's economic well-being.

A 2005 Statistics Canada report discloses that open source software occupies a significant fraction of software operated by both private and public sector organizations. Over half (52.7%) of all public sector organizations reported using open source software. Among private sector firms, over two thirds (37.3%) of large firms reported using open source software, with less being reported by medium (16.5%) and small (9%) businesses (although these figures likely under-report open source usage through outsourced web services).

More work needs to be done to educate smaller businesses about the benefits and capabilities of open source software. Smaller businesses would benefit the most from the cost savings and flexibility that open source software delivers. Open source consumer applications, such as the Firefox browser, Ubuntu Linux-based operating system, Apache web-server, MySQL database program, and OpenOffice productivity suite, are also increasing market share.

There are many economic advantages to using open source over proprietary software:

  • Reduced Cost: considering the total cost of ownership of software, including the maintenance and support, in most cases OSS is less expensive than equivalent proprietary software
  • Security: open source code is transparent to users, making software vendors more accountable, giving users and developers access to the source code and allowing them to identify vulnerabilities and provide or push for fixes in a timely manner
  • Efficiency, scalability, and innovation: software upgrades can be controlled and determined by users and not the software vendor and the software may be easily customized to meet the specific needs of its users

Finally, open source encourages choices between vendors and programs and promotes interoperability for all users.

Although OSS is growing increasingly mainstream, Canada still lags behind other nations in take-up of OSS: studies show that firms use a larger percentage of OSS in the United States, Europe and the Pacific Rim. This suggests that closing the open source take-up gap offers Canadian firms the potential for significant productivity gains. Accordingly, the Canadian government should encourage the adoption of OSS to bolster Canadian productivity and economic growth. This includes creating a business climate that is free of hurdles for open source implementation. Canada has a small but strong history of open source contribution. Nonetheless, Canada lags behind both the United States and the European Union in terms of open source development.

Open Source Software and Copyright

Copyright law is central to the philosophy and practices of open source developers. The public policy underlying Canada's copyright law seeks to balance the public's interest in rewarding authors for their creative efforts with the public's interest in access to those works. Open source developers similarly have interests on both sides of that balance.

Copyright law grants OSS developers exclusive rights in the computer programs they create, including the exclusive right to reproduce, distribute, and adapt and modify the software. Open source developers rely upon these exclusive rights to dictate the terms under which their software may be distributed and used. Open source developers collect these terms into standard licence agreements, simple legal documents that predictably and economically communicate the conditions under which the software may be used, adapted and distributed. The businesses and users that do not abide by the licence terms infringe copyright. The OSS copyright owner may seek remedies for infringement; the same way that the owner of copyright in a proprietary program might.

In return for the grant of copyright protection, the creator of a work is required to let the public engage in certain activities with the work created. This is often described as the "copyright bargain" in the sense that allowing access is the price the author pays for the benefit of copyright protection.The development of open source software requires access to computer programs for many reasons, including the need to develop innovative extensions or extend the functionality of existing software, to undertake security research and to make code interoperable. Access to code is also required to research functionality, which includes reverse engineering code to identify non-patented inventions. Copyright law recognizes the value of these activities, and the need to place them beyond the absolute control of the copyright owner.

Technological Measures

Technical measures are ubiquitous, consumer-level digital technologies that allow copyright owners control over the distribution and use of software and digital content. Technical measures add a second layer of content protection that is independent of and in addition to copyright protection. The WIPO Internet Treaties oblige states to give legal protection to Technical measures. These legal protections, collectively known as "anti-circumvention laws", offer content distributors a third layer of protection.

Technical measures, like all technology, are fallible. Accordingly, anti-circumvention laws ineffectively prevent infringement but effectively deter legitimate uses of copyrighted works by law-abiding citizens, including open source developers.

Ten years ago this month, Canada signed the WIPO Internet Treaties. Now, the Canadian government has indicated that new copyright legislation will implement those treaties, implying that policy-makers will introduce anti-circumvention laws. Our recommendations for how policy-makers should implement the WIPO Internet Treaties without chilling innovation in the Canadian software development industry are as follows:The best anti-circumvention legislation is no anti-circumvention legislation. Canada should not enact anti-circumvention laws. Canada is also under no international or domestic obligation to introduce such provisions. Anti-circumvention laws chill innovation and offer no further benefit that copyright law does not already offer.

If Canada does enact anti-circumvention laws, it should do so in a manner that avoids the mistakes that other nations have made in respect of such laws, and minimizes the potential for such laws to chill innovation. We suggest that:

  • Canada must restrict the application of anti-circumvention laws to instances where a circumventor intends to infringe copyright; common sense dictates that legal activity must not be rendered illegal merely because of the presence of technical measures.
  • Technical measures are seldom directed primarily towards content protection and, more often, they have anti-competitive objects. Anti-circumvention laws should recognize this reality by balancing such protection with legal measures designed to protect the consumer.
  • Proprietary software distributors often seek to lock in customers by minimizing interoperability to the extent they can while still satisfying the minimum needs of users. Open source developers, in contrast, seek interoperability among open source projects and their proprietary counterparts. Copyright's exceptions and limitations protect these efforts. Anti-circumvention laws should not frustrate them.
  • Reverse engineering is a crucial tool for achieving interoperability and other legitimate ends. Canada must legislate the right of users to circumvent technological measures for non-infringing purposes.
  • Secrecy does not protect systems effectively. Electronic security is improved through testing by the security community including academic security researchers and hobbyist programmers.
  • Anti-circumvention laws chill security research since successfully breaching any form of technological measure protecting the underlying software raises the spectre of liability. The United States currently suffers from precisely this research chill. Canada has no such research chill and should not introduce one: bona fide security researchers must not operate under a cloud of liability.
  • Even the most restrictive anti-circumvention laws permit circumvention for certain purposes. Tools to engage in such circumvention must be available in the marketplace to those who need them for legal use.
  • Effective laws do not mandate the use of particular technologies. Technology mandates run the risk of losing relevance as technologies evolve and impose burdens on creator, user and distribution communities.
  • Canada's general defense to infringement, fair dealing, suffers from deficiencies that undermines its utility, and so undermines the effectiveness of copyright law as a whole. Canada should expand fair dealing to address its current structural and technical inadequacies, and to clearly encompass reverse engineering and security research and access for purposes intended to allow interoperability.

Conclusion: A Call to Action

Copyright policy is innovation policy. Anti-circumvention laws would be harmful to innovation in Canada. Parliament should not pass anti-circumvention legislation. If it chooses to do so, it must do so in a manner that does not undermine innovation policy in Canada.

There are many ways that concerned citizens and businesses can be active in the copyright reform process, especially now that a window is open for Canadian voices to be heard. The CSIA is a group representing stakeholders in the Canadian software industry. The CSIA is working to ensure that copyright legislation in Canada continues to support creativity and encourage innovation in the Canadian software industry. Since CSIA members use new modes of peer production, their position in this area differs from other software industry groups, and will provide a crucial voice in the consultation process. There is power in numbers. By joining the CSIA, you help to ensure that the voice of open source is heard.

Other good ways to get involved include joining 25,000 other Canadians in the Fair Copyright Facebook group and adding your name to one of two petitions at Online Rights Canada and Digital Copyright Canada. It is also very effective to write to your MP, the Minister of Heritage, the Minister of Industry, and the Prime Minister. CopyrightforCanadians.ca offers a number of tools for helping you do just that.

Since much of the motivation for copyright reform in Canada comes from governments, organizations and businesses located outside our borders, it is particularly important in this context that Parliament carefully evaluate proposed changes in light of their impact on Canada's interests. Where the interests of Canada's creative and innovative industries differ from those of foreign governments and lobbies, Parliament must act in the interests of Canadians, even where this may be viewed with disapproval by outside forces.

Finally, copyright law is designed to foster innovation and productivity. In order to do this, as in other areas affected by copyright, the law must maintain the balance between the interests of copyright owners and users of copyrighted works. In the software innovation context, this means granting copyright owners appropriate protections while ensuring access for innovative open source developers.

The events of December, 2007 provided evidence of Canadians' interest in the issue of fair and balanced copyright laws. As individuals, they have affected the legislative process and injected the public interest into the conversation. Now is the time for software innovators to state their position as well, while the window is open for their view to be heard.

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