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Microsoft Misleads on Copyright Reform

By Michael Geist

The Hill Times this week includes an astonishingly misleading and factually incorrect article on Canadian copyright written by Microsoft.  The most egregious error comes in the following paragraph which attempts to demonstrate why Microsoft thinks reform is needed:

Imagine you're an aspiring author who decides to self-publish on the internet in hopes of supporting yourself and catching the eye of a publishing house. Now imagine someone hacks into your website and accesses your work and begins using the ideas expressed in your work for their own commercial benefit. You should be protected, right? In Canada, you are not.

Actually, you are protected.  

Copyright law would clearly protect an author whose work was used without permission for commecial benefit.  In fact, the infringer would face the prospect of significant statutory damages.  But don't take my word for it.  One year ago (almost to the day), Microsoft issued a press release trumpeting a win at the Federal Court that led to one of the highest statutory damages awards in Canadian copyright history - $500,000 in statutory damages and an additional $200,000 in punitive damages.  Funnily enough, the company didn't argue that it wasn't protected in that case (update: note that if Microsoft is claiming that there is no protection for the ideas rather than the expression of the ideas, then this is correct, though it's true for all countries since copyright protects the expression, not the ideas themselves).

The column then continues with this gem:

If we take our self-publisher as an example - that person is looking for innovative distribution channels to share their work. If digital distribution methods are not protected, what incentive is there for that person to seek other, even more innovative ways to distribute and commercialize their creations?

Actually, there are lots of incentives.  In fact, Microsoft just bid $44.6 billion for a company (Yahoo) that is one of the most vocal proponents of distributing music without such protections and owns Flickr (itself formerly a Canadian company), one of the most successful online photo sites where over two billion photos have been posted without protection.

Finally, the column concludes by acknowledging that:

Critics of the proposed law often raise concerns about how to provide for fair dealing. The existing Copyright Act already provides exceptions for research, study, the disabled, and more.

Yes it does.  The problem with the laws that Microsoft is seeking is that those exceptions would be trumped by the combination of content that is locked down and the Prentice Canadian DMCA.  But then Microsoft ought to know that, since it is the company selling the digital locks.

Full post as published by Michael Geist on February 03, 2008 (boomark / email).