Today's C-61 reform is particularly timely given yesterday's decision by Industry Minister Jim Prentice to demand that Bell and Telus account for their plans to charge for the receipt of text messages, a decision that Prentice described as "poorly thought-out." In the case of text message charges, the companies will presumably argue that their consumer contracts give them the right to alter charges and that this change is consistent with those rights. Prentice may rightly note the inequity of locking in a consumer for three years, yet reserving the right to fundamentally alter the costs borne by the consumer midway through the agreement. In other words, the contract may say one thing, but consumer rights and fairness dictate something else.
While that may be Prentice's perspective on consumer telecom contracts, he adopts a much different approach in Bill C-61.
One of the most important – albeit overlooked – elements of the bill is its explicit preference for contract over copyright. In particular, the music shifting provision provides that "if the individual has downloaded the sound recording from the Internet and is bound by a contract that governs the extent to which the individual may reproduce the sound recording, the contract prevails over subsection (1) [the shifting provision] to the extent of any inconsistency between them." Many will instinctively agree with this approach – parties are free to contract and no one is forcing anyone to buy anything. However, this approach ensures that basic consumer rights (user rights in the Supreme Court of Canada's parlance) can be overriden by contract. In other words, the contract prevails even where consumer rights dictate something else.
Note that other countries have dealt with the same issue and sided with the need to protect the copyright balance. For example, the Portuguese Copyright Act declares null and void any contractual provision eliminating or impeding the normal exercise of "free uses." This issue has also arisen in other European countries including Ireland and Belgium as well as in the European Union's Computer Programs Directive and the Database Directive, which guarantee lawful users certain end user freedoms that cannot be overriden by contract. By conclusively siding with contract over copyright law, Bill C-61 potentially tramples on provincial rights (contract is a provincial matter) and opens the door to the elimination of user rights in copyright through contract. To borrow Prentice's own words, this provision is poorly thought-out.
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I am a great fan of your blog, keep up the good work. But should the article title not be Contract trumps Copyright?
Might this open the door to these portions of the Act being declared unconstitutional because of the interference with provincial rights?
Wrong premise. The new charges for incoming texts are for people who DON’T have a plan. For those who do have a contract, nothing changes.
C-61 is poorly thought out
C-61 is so throughly riddled with holes and inconsistencies that had *any* 1st year law student submitted it as class assignment, he’d have flunked the course.
Those who drafted the bill and their political masters clearly have never taken *any* courses on formal logic.
Right premise on texting
“Wrong premise. The new charges for incoming texts are for people who DON’T have a plan. For those who do have a contract, nothing changes.”
Trust me, I have a contract. And my text messaging is not free – if I stop paying the base flat rate, they will certainly stop sending them!
My contract implies that these are included at the flat rate of the contract – a relatively standard idea in many service contracts. As an example, World of Warcraft doesn’t charge you by the battle – they charge you for the month, even though people who are online more certainly use more resources from them.
You’re right that the change is targetted at people who don’t have a ‘plan’ – that is, who pay extra for text messaging. But many of the affected people certainly have a contract which includes text messaging in the base price.
Given that if I chose to not pay these new amounts they would likely cut off my service, I think that these new charges would certainly be a “material change”. As such, Bell and Telus may find that they have problems charging early leaving fees for people who don’t want any changes in their contract.
Personally, I thought the wording of his statement was quite interesting:
[QUOTE]”While I have no desire to interfere with the day-to-day business decisions of two private companies, I do have a duty as Minister of Industry to protect the interests of the consuming public when necessary.”[/QUOTE]
So the rest of the time he protects of interests of international companies/associations???
Multi-lingual Canadians
I recently discovered your blog, and am grateful for it.
This whole thing, really, seems to me, to be having corporations trying to get their hands on otherwise \’free\’ technology, making it their property, and then charging the users for it. If the government squeezed out the little guy, the corporations and the black market people only raise their prices. In my opinion.
I understand the need to purchase initial copies that are available for Legal sale, but not for other items that are overseas, and only available by \’purchasing a blackmarket copy\’, or using free software get it.
Further, the impact of this Bill could be detrimental for any family\’s language learning. As it stands there is not enough mulit-lingual international advanced language resourses for Legal purchase, even on the internet. Canadians don\’t all live next to their same-language neighbours. Our country is too large for that. The only way to advance to a high level, is to have access to overseas items. Cutting out free use of software, also cuts bilingualism.
Lets face it it’s not really even contract trumps copyright. It’s whatever the Copyright holder says trumps copyright as most of these ‘contracts’ are not negotiated, it’s do what the corporations says or no ‘contract’. And to top it off the ‘contract’ usually says the corporation can change the contract at whim.
“Lets face it it’s not really even contract trumps copyright. It’s whatever the Copyright holder says trumps copyright as most of these ‘contracts’ are not negotiated, it’s do what the corporations says or no ‘contract’. And to top it off the ‘contract’ usually says the corporation can change the contract at whim.”
Oh and I forgot to mention this is the type of thing that the government should be protecting it’s citizens from. But of course it’s all for the artist isn’t it.
“Not well thought out”? I think it’s pretty clear that Mr. Prentice was taking dictation from Washington DC. I think Canadians expect and deserve a government that protects the interests of its citizens first.