Law Times

www.lawtimesnews.com Law Times / January 28, 2008 Page 7 Expected copyright amendments problematic In the few days before I sat down to write this article there was speculation that the Canadian government will soon be reintroducing copyright amendments, in order to carry out its com- mitments under the World Intellectual Property Orga- nization's Performances and Phonograms treaties adopted in December 1996. One aspect of these amendments is expected to include anti-circumvention offences similar to those contained in the U.S. Digi- tal Millennium Copyright Act (DMCA). Removal or tampering with digital rights management (DRM) or technical protection measures (TPM) would constitute copyright in- fringement. Proponents of bringing DMCA-type laws into Can- ada likely include the likes of the Canadian Recording Industry Association and the Motion Picture Distributors Association — trade orga- nizations representing copy- right rights holders who have steadily lost control of their content due to the techno- logical improvements in gen- eral personal computer tech- nology (which has basically turned every home PC into a copying machine) and the proliferation of file-sharing programs on the Internet. In the opposing camp are intel- lectuals and academics who appreciate that a DMCA- type prohibition will make it illegal to remove or bypass digital locks, even by legiti- mate purchasers of protected content, and will upset the current balance between rights owners and users. One concern is that re- moval of DRM will be pro- hibited even if done solely for technical compatibility purposes. So, for example, iTunes subscribers who pur- chase songs for their iPod and want to move their mu- sic collections to a competing device — one not supported by Apple — will likely need to repurchase the same mu- sic all over again. Buying and using a third-party tool in order to remove the DRM placed by iTunes would be il- legal, even if the music is not distributed to third parties. Although the predomi- nant use of DRM is current- ly to protect music, another emerging area is download- able e-books and their associ- ated readers. A purchaser of a book in one format may be locked out from being able to translate it to another manu- facturer's format, even if the original device breaks down, is no longer serviceable, or even if it is no longer possible to buy a replacement device. There's nothing really unfair about all this, provided the consumer fully comprehends that the price they are paying for content may be limited to their use of that content on the original device. Another key argument against DMCA-type pro- hibitions is that they may conflict with fair-dealing exceptions. While the fair- dealing exceptions contained in Canada's Copyright Act are much narrower than their "fair-use" cousins south of the border, use of DRM- busting technology even in the furtherance of a use otherwise permitted under fair-dealing, without a new made-in-Canada exception, could constitute infringe- ment. Abolishing or curtail- ing the fair-dealing excep- tions fundamentally alters the balance between owners and users currently contained in our copyright regime. Another concern, raised by academics such as the University of Ottawa's Ian Kerr, is that DRM and TPMs may be used to erode privacy rights. Many DRM systems require a registration process. Some DRM systems may even continue to transmit personal usage information back to the content owner — effectively monitoring an individual's private activities. DMCA-type prohibitions may also have unintended consequences — they may even affect how we practise our own profession. Like most computer-literate law- yers, I no longer write mem- os to clients commenting on contract provisions or draft amending agreements. In or- der to work most efficiently, I mark up suggested changes directly in the contracts that I'm asked to review. One of my recent tasks was to revise a telecom contract for a client who received it in a locked PDF format. Aside from the cost-saving to the client in having me directly edit the document, the terms and conditions in this particular case were printed in four- point font — making them next to impossible to read. (Query: how enforceable is a contract that is impossible for the average person to read?) My client asked its sup- plier to provide a copy in Word format, but unfortu- nately the document was created back in 2003 and the supplier's law firm did not have luck in finding a copy. So without giving it much thought, I purchased a program to unlock the docu- ment, saved it in text format, and then imported it into Word so I could mark it up. It later occurred to me that my actions would probably have been in violation of a DMCA-type legislation had Canada already implement- ed such prohibitions. H o p e f u l l y o u r government will take the time to carefully consider the implications, and include proper exceptions, before adopting any DMCA-type legislation here. Alan Gahtan is a Toronto- based technology lawyer and Law Times columnist. His website is located at ghatan. com/alan How do they know what to do? S ince Premier Dalton Mc- Guinty's government claims it gives no direction to people in the justice field, how do these people know what to do? Do they just sort of guess? Or do they figure it out by osmosis from the top? A case in point: The provincial auditor catches the Ontario Provincial Police di- verting money— money allocated by the legislative assembly for the provincial sex offender registry — to other purposes. Does the government then call up OPP Commissioner Julian Fan- tino and lambaste the organization for disobeying the clear mandate of parliament? Or at least phone and ask what happened? "Explain it to me, and don't let it happen again." Apparently not. I say "apparently" because an attempt to find out exactly what process the Liberals went through upon receiving this information from the auditor produced only a partial explanation. A spokesman for the Ministry of Community Safety and Cor- rectional Services could not say how contact was initiated between the ministry and the police. Who phoned whom first? Nor could he say what was said. When he couldn't answer the question by my initial deadline, I gave him another two weeks to find out, and of course I have still not heard from him. He did say, though, that the OPP informed the minister in writing that it wouldn't do the diversion again, which makes Community Safety Minister Rick Bartolucci's response to a ques- tion from New Democratic Party justice critic Peter Kormos in the December sitting of the assembly more comprehensible than it was at the time. Bartolucci's initial reply to Kormos's query about the $9-million diversion was the usual hackneyed Liberal line that, "We do not interfere with the operations of the OPP." But then Bartolucci added a curious kicker to his response: "All money should be allocated towards the sex [offender] registry that is as- signed to it, and we will ensure . . . [the] registry's allocation will be spent on that allocation." He added that Fantino, "a per- son we should all respect and trust, has assured us that will happen." So who is doing the assuring? The government? Or the OPP? Where is the accountability for the spending of public funds being placed? Let me use modern jargon to define the issue: Proper governance, whether in the provincial cabinet or a corpor- ate boardroom, is the setting of policy parameters, strategic direc- tions, and outcomes within which management is held accountable for delivery of goals and results. And that applies to the Ontario Provincial Police, employees of the provincial government tasked with enforcing the laws of Ontario, as much as anyone else. The tactics of getting to the policy goals are up to manage- ment, of course. Nobody tells the police who to arrest and nobody should have to tell them to arrest lawbreakers, but the policy of what police concentrate upon and how much it will be funded is entirely a political responsibility. And thus, at base, belongs to the voters. Bartolucci's dancing reminds one of Premier Dalton McGuinty's consistent divorcing of his govern- ment from police actions and in- actions resulting from the aborig- inal seizure of privately owned land at Caledonia, a plague that has since spread elsewhere. The Liberals proudly proclaim a "back off " policy of doing nothing and blaming Ottawa, despite prov- incial responsibility for the admin- istration of justice and the issuing of land titles. It is curious, though, that while the OPP are adhering religiously to this Liberal policy, no Liberal will take credit for directing the OPP to do what the Liberals want. It's this that leads me to wonder if the system operates by osmosis from the top, rather than by clear, written policy directives, such as those that Ipperwash inquiry Commissioner Sidney Linden rec- ommended in his report on the ab- original incident of that name. Linden rejected verbal com- munication as being too slapdash and open to misinterpretation, but the Liberals won't even admit to picking up the phone. This is all passing strange, since government is process, as anyone who has worked in it knows full well. Decisions are not made in vacuums. Which brings one back to Bartolucci. Since no one is admitting how contact was initiated between Bar- tolucci's office — or, more likely, the premier's office — and the OPP to produce the Fantino let- ter pledging that the sex offender registry money will be spent where allocated, it might be permissible to ask a question. What if, for instance, Fantino's letter had said in essence, "Shove off, we'll do what we want with the money." Under the Liberal vision of ac- countability, which says the police are an independent agency that can't be dictated to by elected of- ficials, the only possible Barto- lucci response would have been, "Okay." How stupid is that? (Speaking of stupidity, in a recent column, I credited the Ipperwash report and quotes from it to Justice Dennis O'Connor rather than Linden, despite having it open in front of me, for which I apologize). Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@rogers.com COMMENT Inside Queen's Park By Derek Nelson Bits and Bytes By Alan Gahtan LT LT encourages readers to send us letters, but will edit them for space, taste, and libel consideration. Please provide your name, address and contact number and send all letters to: Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or e-mail to: lawtimes@clbmedia.ca Fax: 905-727-0077 Law Times *Pages 1-16.indd 7 1/24/08 6:10:31 PM

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