[Ecommerce] Canada: Copyright proposals hit medical community hard

[Manon Ress]

http://www.cmaj.ca/cgi/content/full/172/8/989?etoc

Copyright Policy
Dangerous copyright proposals hit medical community hard
Michael Geist

Faculty of Law, University of Ottawa, Ottawa, Ont.

If one were to ask the average physician to name imminent policy reforms
relevant to the medical profession, copyright law is not among those
topics most likely to leap to mind. This may soon change: the Canadian
government is contemplating dramatic copyright reforms that could have a
detrimental impact on medical research and education. If the medical
community fails to speak up on these issues, it will do so at its own peril=
.

Patent and copyright law share the same basic objective: to balance the
interests of inventors and creators with those of the general public. In
the case of patents, inventors are typically granted a limited 20-year
monopoly over their invention. In return, the public receives immediate
access to a full description of the invention and the right to use the
patent, without condition, on its expiry.

Copyright features a similar balance. Authors obtain copyright in their
work automatically without registration and benefit from a basket of
time-limited exclusive rights, including the right to reproduce and
translate their work. The public benefits from a series of "user rights"
that allow for the copying of portions of the work for research or
private study without prior permission as well as unfettered access once
copyright in the work expires. (This is known as entering the public
domain.)

Researchers can be forgiven if they occasionally believe that the
balance is skewed heavily toward rights holders. One such example
concerns Myriad Genetics, a Utah-based company that holds patents on
diagnostic tests and treatments involving breast cancer genes. The
company has entered into licences with medical schools, universities and
hospitals, giving them the right to use their tests in research on
breast cancer. These licences have faced growing criticism, however, as
medical school researchers are forced to abandon their work because of
licensing terms that exclude clinical research by restricting research
to a laboratory setting.1

Copyright law is slated to undergo changes in Canada that will provide
rights holders with similar strangleholds over their content, to the
detriment of the medical research community.

One of the most troubling copyright proposals concerns technological
protection measures (TPMs), which are used by owners of online databases
and other digital content to establish a layer of technical protection
that prevents users from making unauthorized copies of their work. For
example, popular medical texts designed for handheld electronic devices
such as the Palm contain TPMs that restrict use of the electronic books
in ways not found in the paper-based versions of the same texts.

Unfortunately, TPMs are blunt instruments that block both the full-scale
unauthorized copying that is expressly denied by copyright law and
limited copying, such as copying short passages for research purposes.
(For example, CBS News recently released a 234-page report on the use of
unverified documents in relation to a report on President Bush's
military service. Critics soon noticed that the document featured
technological limitations that prevented users from "cutting and
pasting" even a single sentence.2)

The legislative proposal, which comes as part of a move to ratify 2
controversial international copyright treaties, adds to the dangers
associated with TPMs by providing an additional layer of protection that
prohibits attempts to circumvent or defeat the technological protection
measure. In the United States, this layer of protection has criminalized
attempts to access research data protected by a TPM, even if the
intended use is itself lawful under copyright law. In their zeal to
enact similar legislation in Canada, policy-makers may use the US
approach as their model.

Consider the potential impact on genetic research. Researchers seeking
to obtain access to proprietary genetic databases could be forced to
negotiate a licence from the database owner, despite user rights that
would otherwise grant the right to access and use selected portions of
the database content without prior approval.

The proposed copyright reforms also pose a significant threat to the
dissemination of research results, particularly research with a security
component.

In the United States, the enactment of the Digital Millennium Copyright
Act (DMCA) has led directly to such a chill. For example, several years
ago a Princeton researcher sought to release an important study on
encryption. When he publicly disclosed his plans, he was served with a
warning that he faced potential legal liability under the DMCA if he
publicly disclosed his findings.3 Similarly, in 2001, a Russian software
programmer was arrested and spent the summer in a California jail after
highlighting encryption weaknesses in an Adobe software product at a
public conference.3

These cases sent a wave of fear through the research community, not only
leading foreign researchers to avoid travelling to the United States,
but also leading cyber-security czar Richard Clarke to acknowledge that
"a lot of people didn't realize that [the DMCA] would have this
potential chilling effect on vulnerability research." 4 For researchers
of all specialties, the restrictive potential of DMCA-style legislation
is a cause for concern.

The proposals would also harm the use of the Internet as an educational
tool within Canada's medical schools. The federal government's copyright
proposals contemplate reversing the decade-old policy of avoiding
Internet licensing by creating a licensing system for Internet content
that would create new restrictions to accessing online content. Although
the proposals began with the laudable goal of increasing access while
providing creators with appropriate compensation, by proposing a very
narrow definition of what can be accessed without compensation, the plan
would effectively force millions of Canadian students to pay for access
to content that is otherwise publicly available.

Rather than adopting an approach that facilitates the use of the
Internet, the government is moving toward a model that will force
schools to pay to use Internet materials =97 contrary to the expectations
of many creators. Canadian medical schools, which are struggling with
20th-century budgets to provide a 21st-century education, should call on
the federal government to reject the proposal and instead adopt a
balanced copyright approach that encourages the use of the Internet in
Canadian schools.

One possibility would be the establishment of a limited educational-user
right to publicly available work on the Internet. In keeping with
long-standing and widely accepted practices on the Internet, publicly
available work would include materials that are neither technologically
nor password protected =97 i.e., information that the author or publisher
would want to make widely available, such as the CMAJ archive.

Although the US Medical Library Association has been an active
participant in that country's copyright reform process,5 the Canadian
medical community has thus far been largely silent on Canadian copyright
reform. Given the direct impact of these troubling proposals, it can no
longer remain on the sidelines. The medical community has the
opportunity to emerge as a positive force for change by actively
supporting a uniquely Canadian vision of copyright that supports both
creator compensation and facilitates, rather than hinders, research and
education.

Footnotes

Michael Geist is the Canada Research Chair in Internet and E-commerce
Law at the University of Ottawa. He is online at www.michaelgeist.ca.
The views expressed here do not necessarily reflect those of the
University of Ottawa.


References

    1. Willson DJ, MacLeod SM. Patenting of genetic material: Are the
benefits to society being realized? CMAJ 2002;167(3):259-62.[Free Full Text=
]
    2. Zeller T Jr. CBS news draws ire of bloggers. New York Times 2005
Jan 17; Sect C:6(col 1).
    3. Electronic Frontier Foundation. Unintended consequences: five
years under the DMCA. Available:
www.eff.org/IP/DMCA/unintended_consequences.php (accessed 2005 Mar. 9).
    4. Bray H. Cyber chief speaks on data network security. Boston Globe
2002 Oct 17.
    5. Medical Library Association. Digital Millennium Copyright Act.
Available: www.mlanet.org/government/dmca/index.html (accessed 2005 Mar. 9)=
.



--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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