The Unofficial Canadian DMCA Background Document

Multiple sources advise that Industry Minister Jim Prentice's current plan is to introduce the Canadian DMCA this week, likely on Wednesday.  While things could change, it would appear that Prentice's communication strategy is to do as little communicating as possible. Plans for a possible press conference have apparently been put on hold given concerns that the press might actually ask questions and Prentice has even entertained thoughts of shuffling the bill quickly to a committee for summer hearings so that he would not have to deal with the issue all summer long. The Minister will also head for Japan and South Korea late the following week as part of the OECD Future of the Internet Economy conference, so out-of-sight, out-of-mind.

What do we get instead?  Likely a press and MP briefing in a lockup just prior to the release of the bill, which will probably happen later in the afternoon (government bills are tabled after 3:00 on Wednesdays) to minimize the opportunity for critical comment in the immediate news cycle. While Prentice presumably hopes that this is a one-day story, my guess is that he is wrong.  There is no local open house this time round, but Prentice is planning his annual Calgary Stampede breakfast for July 5th.  Further, the OECD is inviting anyone to pose comments or questions about the Internet directly to the Minister on its YouTube page with the Ministers asked to react to the best videos at the OECD conference in South Korea.

Given the apparent effort to control the media spin, I thought it would be useful to anticipate the likely talking points in the Canadian DMCA backgrounder along with a broader perspective featuring things Prentice probably won't say.  These include: 

The bill is the result of extensive discussions with the Minister of Canadian Heritage to ensure that the Canadian approach strikes the right balance between protecting creators and ensuring appropriate access [in reality, the bill as drafted last December was only modestly amended to include a few user-oriented provisions such as time shifting.  As mandated by the U.S. and willingly followed by Prime Minister Harper and Prentice, the DMCA-like anti-circumvention provisions remain largely unchanged].

The bill includes important provisions for consumer rights such as time shifting [while long overdue, the time shifting provisions are rendered ineffective in the digital environment by the bill's anti-circumvention provisions.  In the event that the bill also includes a format shifting provision to allow for music to be transferred to iPods, the same concern arises since copy-controlled CDs cannot be legally shifted].

The bill ensures that Canada lives up to its international copyright commitments having signed the WIPO Internet treaties in 1997 [Canada is currently fully compliant with its commitments since signing a treaty does not mandate ratification.  Further, the government will speak about "implementation" rather than "ratification" since this bill will still not allow Canada to fully ratify the treaties and sticking to implementation will enable the government to delay meeting its commitment to debating international treaties before ratification. Finally, there is great flexibility within the WIPO Internet treaties such that the Canadian approach could easily be far more balanced and still allow for eventual ratification].

The bill responds to trading partner criticisms about Canada's outdated copyright laws [While "trading partner" is just code for the U.S., two recent international studies have found that Canadian intellectual property ranks in the top half of the G8, with the World Economic Forum ranking it ahead of the U.S.].

The anti-circumvention provisions will allow business to introduce new models for the digital world [There is no evidence that these business models are not already being introduced into Canada as digital music sales growth has surpassed the U.S. for the past two years, some U.S. companies like SpiralFrog have launched first in Canada, and many businesses are abandoning DRM.  Moreover, the Business Coalition for Balanced Copyright, comprised of some of the leading Canadian businesses, has warned against adopting a U.S. DMCA-style approach].

Canada has looked to the examples of other countries, including the recent New Zealand copyright law [Unfortunately, the government is likely to adopt the more restrictive NZ time shifting provision and ignore its more flexible approach on anti-circumvention].

The government has listened carefully to the concerns of the many stakeholders and interested Canadians [The Minister has still not met with many leading copyright groups, particularly those representing consumer and education interests].

The bill contains important anti-circumvention exceptions to protect privacy and security [Similar provisions in the U.S. have proven to be a total failure with cases such as the Sony rootkit incident leading to hundreds of thousands of vulnerable personal computers and class action lawsuits in both the U.S. and Canada. A possible provision to exempt unlocking cellphones will be similarly ineffective since the law will make it a violation to distribute the software that can be used to unlock devices.  A far more effective approach, adopted in New Zealand and in Canada under Bill C-60, would be to make the act of circumvention a violation only where it is done for the purposes of copyright infringement. In fact, NZ has even identified trusted authorities who are given explicit permission to circumvent in appropriate circumstances].

The bill protects Internet service providers with a notice-and-notice takedown system [This is true and represents an important provision.  However, recent reports on the secret negotations on the Anti-Counterfeiting Trade Agreement suggests that Canada may well agree to additional provisions that would compel ISPs to more actively monitor their subscribers].

The bill features a much-needed "making available right" as is found in many other countries [Canada arguably already has a making available right within its copyright law. Moreover, even the U.S. provision has been interpreted to require actual distribution in order to trigger the provision].

The bill is only the first step in a broader copyright reform process that will address additional issues once this bill is enacted into law [Leaving aside the fact that major copyright reform in Canada is completed once every decade, the additional issues are the further IP enforcement provisions coming our way under ACTA in response to U.S. pressure. The bigger concern are all the issues that this bill will not address – fair use (Israel recently enacted a fair use provision and Japan just announced plans to do so as well), crown copyright, educational uses, statutory damages reform, private copying (as the Conservatives promised to address), and modernizing the backup copy provision].

The bill will go through full committee hearings with interested Canadians invited to participate [assuming that the Industry Committee does not conduct hearings until the fall (summer hearings would effectively exclude many voices), the government may want to hear from the following groups, who will be less than effusive with praise:

Indeed, the challenge will be to find supporters of the legislation other than the usual copyright lobby groups and U.S. Ambassador to Canada David Wilkins.]


  1. Crosbie Fitch says:

    Don’t forget copyright abolitionists
    It would not only be highly ironic, but it would do Canada well to take a leaf out of the US Constitution:

    Article 1, Section 8, clause 81 of the US Constitution says,
    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    Believe it or not, but this doesn’t actually sanction copyright or patent. However, those who enact and support copyright and patent may argue that it permits such unethical privileges.

    But, more importantly, the US constitution doesn’t prevent the abolition of copyright or patent.

    Let’s see how, whilst still tightly adhering to the US constitution, the people’s liberty need not be unethically suspended, as it is by copyright and patent, when securing their natural intellectual property rights:

    1. Authors and inventors, being human beings have a natural, exclusive right to their respective Writings and Discoveries.
    2. This natural right should be secured by the state – to promote the Progress of Science and useful Arts.
    3. The natural right can last no longer than the lifetime of the author or inventor.
    4. The natural right should be secured for a limited time equal to the limited lifetime of the author or inventor, except in the event of unnatural death, when this limited time should be extended to secure a now unnatural exclusive right by a further quarter of the normal lifespan.
    5. The natural right ceases to be exclusive when the author or inventor voluntarily communicates (or permits the communication of) their writings and discoveries to other parties, whether by gift or exchange.
    6. An author’s or inventor’s writings and discoveries naturally remain exclusive to all natural parties to whom they have been voluntarily communicated (by any such party).
    7. All such communicated parties may, as a collective, be treated as if a single author or inventor and should have secured (by the state) their natural, exclusive right for as long as they each shall live.
    8. No communicated party may as a consequence submit to the abridgement of their freedom of speech, which includes the freedom to further communicate (the writings and discoveries voluntarily communicated to them) to whomsoever they choose. NB This doesn’t preclude a communicant’s commercial exchange of their continued silence (confidentiality).
    9. Those who are not voluntarily communicated parties, who view, remove, copy, or otherwise communicate a party’s writings or discoveries to themselves (or any other) without that party’s permission shall be penalised statutorily (for the violation of privacy) and additionally in proportion to the market value of the publication of those writings or discoveries (where publication is their exchange for money with members of the public at large), and further required to restore any removal and destroy any copies manufactured. All who have been further illegitimately communicated may also be similarly liable in so far as they are complicit, but must at least also cease and reverse any communication in so far as it is practicable.

    This would seem to be in greater accord with the natural rights philosophy of Thomas Paine than the current copyright and patent legislation (that unethically suspends the public’s liberty in order to create mercantile privilege, so subjecting the people to the tyranny and oppression of immortal and sociopathic corporations who’ve adopted the privilege as their own).

  2. pat donovan says:

    [ link ]’ target=’_blank’>link ] works (as a link)

    \\\’[ link ]’ target=’_blank’>link ]\\\’ or \\\’futureinternet\\\’ pasted into the search at youtube doesn\\\’t.

    area163 at youtube for my netneut.mp4 will get entered.

    net neutralization of freedom, privacy and copyright
    thru filtering, throttling and ad-inserts.

    a general theme of \\\’it\\\’s the money, stupid. get popular and get taken over. Lose that biz!\\\’

    pol, eco and cult forces at work. dmca anyone?

    packrat (

  3. Politicians
    Why would Minister Jim Prentice do this? He knows Canadians are against this. Why doesn’t he listen to the people? Why doesn’t he do what people want? How can he look at himself in the mirror? Some politicians have no morals, heart, or conscience, and he is one of them.

  4. Bylo Selhi says:

    Re: Politicians
    > Some politicians have no morals, heart, or conscience, and he is one of them.

    Ah yes, but the Conservatives do have “principles.” Stephen Harper told me so.

    Recall that the current Conservatives got elected on a platform of accountability, openness, transparency, listening to the grass roots and all sorts of other highfalutin principles that they seem to have suddenly forgotten.

    Stand up for Canada. Demand better.

  5. Contacts
    So, following the recommendations from Mr Geist and Mr Doctorow (from BoingBoing), I emailed the Prime Minister and Minister Prentice. I got a reply from the PM’s office saying it was (essentially) Prentice’s issue. And, funnily enough, I heard nothing back from Minister Prentice. That’s pretty disappointing.
    Thanks for the summary of the bill points, Mr Geist!

  6. ripping off people ?!
    Is Mr Prentice try to ripp off canadians in their back?

  7. $500 Fine
    From the National Post:

    Tories eye $500 fine for illegal downloads

    [ link ]

  8. just a case of politicians bei says:

    the minister needs to make this “law” at ll costs; she will likely “resign” afterwords since her personal bank account will be stufed from the “lobysts”. just another clear case where the politician-minister is there to TAKE the blame and public frustration(at lest) while the invested interests in the bill win regardless.

    is not this clear yet??? i mean it will be imposible to retrive the bill once passed , all canadians are put in the face of a made deal with absolute no imput.
    time to call in the elections! at least the liberals or ndp are more sensitive to public issues, always been! there is a reason not ONE of the 24 electoral seats in tronto been won by conservatives . NOT ONE!

  9. Concerned says:

    Labels needed for Ministers
    For Prentice:
    Made in Canada
    Bought by U.S.A.
    Raised by Unsanitary Rodentia

  10. This is ridiculous.
    How can we be completely powerless against this sort of corruption?

    How can a traitor like Prentice,
    who cares nothing about the future of Canada
    assault us in broad daylight
    without any repercussions?

    How can we be bound to any bill that Prentice creates
    when it is so obviously corrupt?

  11. Implicit corruption
    I really *love* the way this type of corruption is fully accepted by North American society. You hear all this talk about corruption in the East, but most people fail to see the “implicit” corruption that goes on daily between our government and lobbyists.
    In the East: bribe a government official to get a document faster or something that you aren’t supposed to have -> headlines read: “Rampant corruption a huge problem in country xyz”
    Over here: minister responsible for copyright gets millions from lobbyists for “campaign funds” or “work” -> Minister ABC tables bill which will protect people from DEF. The world is now a better place!

  12. GET THE EGGS says:

    Time TO BUY EGGS
    yes folks the time to commit eggorist acts has arrived.
    We have been invaded by the foreign American Hollywood devils and must defend ourselves.

    Everytime one of these suits walks into public we should toss an egg at them.

    FRIED if you wish to make a true statement of how crappy and stoned our internet is.
    A) these eggorist acts will harm no one other then force some overly paid moron to clean the suit and look like the baffon he/she is.
    B) press coverage off eggorist activity will be all the rage and require new anti-eggorist laws.
    Eggorists will be arrested without trials and held at
    Old Macdonalds Farm, until we can get there hen thats laying all htese eggs.

    /satire by eggorists-R-us

  13. I really doesn’t matter in Canada. For example, I have, and have had since 1999, a Directv satalitte dish on the 14th floor of my apartment in Toronto, It is illigal, but no one really gives a damn. Canada does not have the resources to pursue all of the copyright violations to go on here. Copyright law is a joke here, and will continue to be so under the new laws. I for one will not stop doing what I do, and neither will anyone else that I know. The DMCA has been a failure in the USA, and it will fail in Canada too. The problem with these laws is that they go against the will of the people. Any time in the past (probition, drugs) when laws have been in place that the people are not 100% behind (or even 70%), they fail. I will begin to worry about copyright law around the same time as I see the police start to win the war on drugs.

  14. Kyle Stevens says:

    Straw Men?

    I appreciate that you’re trying to prevent US-style DMCA laws in Canada. I’ve been following your blog pretty regularly. But I can’t help but be confused by this article.

    In this article, there are statements, in italics, and than refutations in brackets. Who wrote the text in italics? Who wrote the text in brackets?

    It almost seems like you built up a series of straw man statements to tear down. But perhaps I am wrong. Can you please clarify?


  15. Canadian DMCA
    The point of this proposed legislation (it hasn’t been enacted yet) is to try and kill piracy. Look around you and you’ll find that governments all over the world are enacting or proposing similar legislation. And what a co-inky-dink it is that such laws are emerging at the same time, no? Smells like a G8-summit kind of set-up to me.

    There’s only one problem – the law as proposed is quite overbroad and will likely not survive a Charter challenge. I also wonder where the government is going to find the money to hire extra border guards to search laptops and iPods. Or the money to create and manage the infrastructure needed to search the devices they confiscate. And where will they find the money to defend the raft of lawsuits this is going to trigger?

    Oops, I forgot. All of this was supposed to be paid for by the iPod tax that the Supreme Court recently ruled against.

    As an aside, the DMCA (Digital Millennium Copyright Act) in the US is actually illegal because it violates the Fourth Amendment, which says that US ciitizens have the right to expect their personal papers and effects to be secure from arbitrary search and seizure.

    I’d be willing to bet that if the DMCA offends the US Constitution, it will probably infringe on Canadians’ Charter-guaranteed right to ‘life, liberty and security of the person’.

    Or do they just plan to confiscate any devices that have MP3′s stored on them? That is, shoot first and ask questions later?

    Get a clue, lawmakers. Piracy exists because creators of content like music and software are charging too much for their products. Or their products do not merit the prices demanded. Like it or not, piracy is the market’s natural response to the greed of organizations like MPAA and RIAA.

    The Tories have absolutely NO clue as to the can of worms they’re going to open if this legislation goes ahead.

  16. jeff
    Stop right there…dont even think about trying to force such a stupid law. Last time i checked this country was a democracy not a police state. If this law does go through i definently know i will not be supporting the entertainment industry anymore. Their greed will be their downfall…

    O ya file sharing is only bad when you are selling the stuff you get. So please cease saying that its “stealing” cause its not…

  17. @DMCA
    *very sadly* I agree with you, but when was the last time you checked?

    In Canada, we have roaches in the kitchen it seems. Carrying that filthy corruption from down south. Damn it! The banana republics start in Washington! This country is the gem of the Americas! Or was.

    Advice to the Alliance ( oh yes, i’ve not forgotten): Win a majority. Then rule us like kings.

    Because we know what to do with kings:

    [ link ]