Copyright Reform and the WIPO Copyright Treaty

Via BoingBoing and Slashdot, our government is taking another run at American-style legislation on digital copyright issues. I’ve sent the following letter to my Member of Parliament, Heritage Canada and Heritage Minister Liza Frulla. I encourage you to do likewise. Feel free to copy my letter–I copied chunks of it from Cory Doctorow:

In Thursday’s Globe and Mail, I read that Canadian Heritage is advocating the ratification of the World Intellectual Property Organization treaty. I am writing to strong advise you to reconsider this strategy, as the WIPO treaty is poorly conceived and threatens the Canada’s future in information technology and the Internet.

The approach that WIPO took to regulating the Internet was to create a set of rules that tried to make the Internet act more like radio, or TV, or photocopiers — like all the things that it had already made rules for. The WIPO approach treated the ease of copying on the Internet as an anomaly, and set out to fix it. The Internet, obviously, is an entirely different medium and, as such, requires a different methodology. A particularly fallacious part of the WIPO is approach is ‘notice-and-takedown’. Consider the following example:

UPDATE: As he mentions in the comments, Will Pate has started a “Save Canada’s Internet from WIPO” petition here.

If you own a restaurant, you’re not responsible for policing your customers to ensure that none of them are carrying stolen property. If someone burst in and pointed at the guy at the back table and said, “He’s wearing my hat!”, no one would blame you if you didn’t wrestle the hat away from him and give it back to the accuser.

But under notice-and-takedown, this is what we ask of our ISPs: if you allow users to host stuff, you’re responsible for what they host. If they put an infringing file on your server, you’re required to know what they’ve put online, and you’ll share in their punishment if you fail to block them from posting infringing material.

Clearly what is and isn’t a copyright infringement isn’t anything like a clearcut issue. ISPs aren’t equipped to evaluate what’s infringing and what isn’t. Even Supreme Court judges have a hard time figuring it out. Operating a server doesn’t qualify you to understand and evaluate copyright law. That’s why notice-and-takedown is becoming a near-perfect tool for censorship. Don’t like what your critics have to say? Just sent a takedown notice and poof, it’s gone!

If Canada wants to “solve” the problems of the Internet, it should be looking to find “Internet-native” solutions. Canada’s Internet laws should treat copying as a feature, not a bug. It should empirically evaluate which sectors are negatively impacted by file-sharing (mounting evidence suggests that almost none of the entertainment industry’s woes can be blamed on the Internet) and then solve those industries’ problems with blanket licenses and other tools that don’t seek to regulate copying, something that’s impossible to do without breaking the Internet.

Despite former MP Helen Scherrer’s best efforts, Canada has up to now enjoyed a relatively enlightened approach to these digital rights issues. Please don’t let that pattern change now. If you do, you can rest assured that you won’t have my support in the next election.