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In Search of A Compromise on Copyright

Last week marked the return of the copyright debate to the House of Commons as Bill C-32 entered second reading.  Six months after its introduction, it became immediately apparent that all three opposition parties will be seeking changes to the bill in return for their support. My op-ed in the Hill Times (Hill Times version, homepage version) notes that three issues stand out as the most contentious: digital locks, fair dealing reform, and the extension of the private copying levy.

Canadian Heritage Minister James Moore was quick to criticize opposition concerns, but garnering the requisite votes to pass the legislation will require compromise.  The good news is that there may be a path to finding common ground on each issue.

Digital Locks

The digital lock rules were easily the most discussed aspect of Bill C-32. The Liberals repeatedly emphasized the need for Canadians to have the right to circumvent for format shifting, making backup copies, and other consumer activities.  This would require changes to the consumer provisions in the bill and the general anti-circumvention provision, since both create barriers to these common consumer activities.

Meanwhile, the NDP placed the spotlight on the impact of locks on education and teaching, describing the exceptions that require destruction of teaching materials thirty days after the end of a course as a digital book burning.  The Bloc was no more supportive, characterizing a legislative approach based on digital locks as “completely ludicrous.”

The compromise position must retain legal protection for digital locks – these provisions are an essential component of complying with the World Intellectual Property Organization’s Internet treaties – but ensure that digital locks do not trump all other copyright rights by preserving fair dealing and consumer rights.

The most obvious solution would be to alter the Bill C-32 approach by clarifying that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright.  This approach – which has been adopted by countries such as New Zealand and Switzerland – would ensure that the law could be used to target clear cases of commercial piracy but that individual consumer and user rights are preserved.  

Fair Dealing

Bill C-32’s fair dealing reforms, which add education, parody, and satire to the list of fair dealing categories, represents the government’s attempt to strike a balance between those seeking a U.S.-style fair use provision and those opposed to new exception categories altogether.  That middle ground came in for considerable criticism from the opposition parties, who expressed concern that the inclusion of education would lead to rampant, uncompensated copying.

The reality is far less worrisome. Canadian fair dealing analysis involves a two-part test. First, does the use (or dealing) qualify for one of the fair dealing exceptions. Second, if it does qualify, is the use itself fair.  

The extension of fair dealing to education only affects the first part of the test.  In other words, while Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair. The Supreme Court of Canada has identified six non-exhaustive factors to assist a court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

While this means that the Canadian courts have already established limits on fair dealing, the road to compromise could involve codifying the six-part fairness text within the Copyright Act.  This would ensure that judges would be required to assess the fairness of any use – including education – before it was treated as fair dealing.  The codification should alleviate any lingering MP concerns that expanding the fair dealing categories necessarily means abandoning copyright fairness and balance.  

Extending the Private Copying Levy  

Both the NDP and Bloc remain strongly supportive of extending the private copying levy to cover iPods and other devices.  Those proposals have raised concerns about the potential for very broad coverage including cellphones and personal computers, the competitive impact on consumer pricing, and the interaction between private copying and digital locks.  With the Conservatives strongly opposed to a reform they describe as a tax, extending the levy appears to face an uphill climb.

Yet a compromise may lie in identifying alternative mechanisms for providing financial supportive to Canadian creators.  A recent study of Montreal musician attitudes toward copyright by McGill law professor Tina Piper found that artists were far more focused on grant programs that play a key role in developing and distributing new music, facilitating performance tours, and expanding the international reach of Canadian music.  

Rather than expanding the levy, the government could commit to continued full program funding for the next five years.  That would match the five year period before the next Copyright Act review and give Canadian artists the financial stability that even the levy does not provide. 

41 Comments

  1. tools for circumvention
    I never hear mention of the disposition of circumvention tools in all of this talk about digital lock compromise.

    If any compromise on digital locks is to be effective, there must not be a ban on the development or distribution of tools to enable circumvention such as there is in the US.

    Any rights to circumvent would be useless if free development and distribution of circumvention tools were not available.

    Of course, if tools to circumvent digital locks are freely and legally available, it really make one wonder what use digital locks really have, other than continuing to frustrate the law-abiding consumer (as they always, and only ever, do).

  2. fair?
    locking things up in a beauro (as in freedom /acess to info)
    courts or not, is not fair dealing.

    we need clear, flat statements on satire, parody, ed uses. lcoks, circumvention, copying etc be damned.

    packrat

  3. The levy concept, as I have heard said, seems to benefit the established rather than the ‘struggling’ artists. It sounds like grants and programs to promote Canadian Artists are more appreciated than adding a few pennies per song to the already successful. I appreciate and enjoy Canadian Artists and am willing for some of my tax dollars to go that direction. Better that than the lion’s share of a levy to go to RIAA backed performers.

  4. RE: tools for circumvention
    This is a hard one to deal with and they’re probably best off leaving it out all together. Making circumvention tools illegal makes popular applications such as VLC Media Player and deCSS (Under Linux) illegal. Both are free to download, install and use. They’re open source and are contributed to by people all over the world. It’s hard to make “legally free” product that has been around for many years illegal and even more difficult to stop distribution of a product easily available from any of a hundred or more sites and LEGALLY downloadible from any torrent provider. According to VideoLAN, since February of 2005, VLC has been downloaded at least 440,000,000. There is too much market prevelence to make it illegal. This does not include Linux stats since VLC is usually pre-bundled with most Linux distros. If you don’t make VLC illegal, it’s hard to justify making any of it illegal.

  5. Russell McOrmond says:

    Ban on devices/tools/etc
    Those who wish a ban on tools tend to be people who do not understand the underlying technology. While it is possible for a tool to be “primarily marketed” at an unlawful act, all these technologies are multi-purpose.

    Take the tools of a locksmith. If you are hiring a locksmith to change the locks on the doors of your own home, then you will want them to have access to those tools. If they are abusing the tools as part of break-and-enter, then that abuse is already illegal.

    The reality is that the issue is never the existance of the tool, but how it is used. The use of a butter knife to kill someone isn’t legal because its primary purpose is not murder, nor should buttering knives be made illegal because they can be abused.

    For more real information on TPMs in context of copyright, see : http://BillC32.ca/faq Avoid being confused by those who don’t have the necessary technical experience to understand the impact of their own views on technology law.

  6. Extending grants, etc
    may be a hard sell in to the public, or at least portions of the public. While I can understand it, one needs to be careful to portray it not as paying them simply for being artists, but rather to assist them getting their careers underway. Perhaps in the form of a no interest loan which is repayable to the government or require the artist him/herself to provide support to other artists if their income rises above a particular amount.

    While I agree in principle with the concept of the exemptions, lets not forget that these do, by definition, provide rights to a portion of society at the expense of another; this places a responsibility on those gaining the right to use the exemption to ensure that they are not abusing it. The IP holder taking it to the courts after what they view as an infraction can be, frankly, too late… the cow is already out of the barn, in particular if the usage was in fact determined to be invalid under the 6-step test. Is there any way that a predetermination that a usage was valid under the 6-step test could be made?

  7. “The most obvious solution would be to alter the Bill C-32 approach by clarifying that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright.”

    I feel I should point out that this idea is, although laudable in intent, far too easily rendered moot by its own choice of words. If circumvention is, itself, considered copyright infringement, then automatically it becomes the intent of anyone who circumvents to also infringe, unless, I suppose it can somehow be shown that a particular circumvention was coincidental and accomplished by accident.

    Instead, I believe that the compromise should specify that it is only a violation to circumvent a digital lock where the underlying purpose is to *OTHERWISE* infringe copyright.

    That way, supporters of this bill as it currently exists cannot try pretend to throw the opposition a bone by using the former suggested wording while making the intent of it entirely moot with the notion of circumvention being copyright infringement in the first place, much like bill in its current state renders virtually all private copying and fair dealing provisions described in the bill completely moot with the digital locks provision.

    Extending the levy is a tricky proposition. The biggest problem with extending it that I can foresee is that it may create a sense of entitlement among consumers that they should be freely able to download any copyrighted material they wish, whether or not the material they are downloading is infringing. I do not believe this to be compatible with the intent of copyright, so I don’t know if that is a particularly smart idea.

    I think what should be done, before any consideration to extending or abolishing the levy is made, is that the law should explicitly impose a few limits on the notion of private use copying that obviously go against the intent of allowing it. For example, it should reasonably be the case that the private copying permission does not apply to works that are already infringing. This would mean that a person could not claim the private use provision when downloading infringing copyrighted content on limewire, for instance. But if they found a band’s own website where they were distributing their own music, it would be perfectly okay, since the source material would clearly not be infringing in that case. (I’ve heard hypothetical arguments against this notion that suggest that people may not be able to tell the difference between an authentic distributor of material and one that may be distributing without permission, but such arguments rely an artificially contrived scenarios that do not reflect reality, except where a person is ignorant of copyright law in general. Since ignorance of a law is not an excuse to violate it, this should not matter.)

    Another way that private use, in my opinion, should be limited, is that it should be explicitly forsaken if or when a person offers to distribute a work that they copied. Since private use, by definition is “private”, this ought to be self-evident, but I believe it may be important to be explicit on the notion so that people are aware that copies of works which may have been previously afforded to them under the private copying provisions can become infringing if they should offer those copies for distribution. This should happen whether or not other copies were actually made… private use ceases to apply once they offer to distribute it, and if the work was not otherwise made with the permission of the copyright holder, it should become an infringing copy of the work (which, in turn, it becomes copyright infringement for anybody else to copy for any reason whatsoever). Of course, if a private use copy is unlawfully misappropriated by someone else (for example, their home or their car is broken into and a bunch of their home-made CD’s are stolen), that should not qualify as intent to distribute… as long as a police report is filed to report the incident, and the victim cooperates with the police appropriately.

    The above two limitations on the notion of private use, I believe, are consistent with the underlying intent of the notion. They permit people to legally privately copy legitimate copies of a work, but they do not leave loopholes that can easily be exploited by people who might wish to use such a notion to evade being accountable for the intent to infringe on copyright.

  8. @Brian
    Presumably, were consumers allowed to break TPM for otherwise legal purposes, the tools would not be illegal. Of course, this may just be crazy talk, or the politicians could simply forget to drop the prohibition…

    I can understand the prohibition being in the current bill. If breaking a TPM for any purpose is illegal, then the only reason to own the tools is for an illegal purpose; this flows more or less reasonably (if A then B). If this prohibition isn’t removed from the bill then I could see the courts removing it for the politicians.

  9. Circumvention tools
    And what exactly are the circumvention tools, how do we define them.

    I know of about 2 grand schemes of content protection:

    1) intentionally recording “corrupted” media (“bad sectors”), betting that this would work on playback devices while causing problems with duplicating equipment.

    2) encrypting content on the media while providing the decryption key with select playback devices only.

    And sometimes you have a combination of 1) and 2).

    Now for 1). A “circumvention device” would be something that ignores errors on the media or tries to repair them in some ways. Remember the “Ignore, Retry, Fail?” dialog box? Illegal, circumvention device alert!

    2) Now this is an interesting situation. Because you’re eventually given both the media (the disc) and the password to it (stored inside the DVD/Blu-Ray player/computer media player). Otherwise you cannot play it at all.

    So what would circumvention be? Having/using the password/key ? So the circumvention device is the key itself? Ban keys and passwords.

    And now going to the old way of making a copy by recording with microphone/camera. From the speakers and screen. Circumvention alert, let’s ban microphones and cameras.

    The whole thing is kinda stupid and no matter how much lawyers are trying to dress them up as being something logical, they aren’t.

    OTOH it is so much clearer and easier to state the whole Copyright law in one single sentence:

    “Thou shalt not distribute copies of this material outside your household”.

    Nap.

  10. @Russell
    “For more real information on TPMs in context of copyright, see : http://BillC32.ca/faq Avoid being confused by those who don’t have the necessary technical experience to understand the impact of their own views on technology law.”

    OK, just because WIPO says we need protections for TPMs, it does not say tools used to circumvent such protections are illegal. That does not mean our illustrious Conservative government can’t go more strict than WIPO and make such tools illegal. All I was implying is that many such legal tools are freely available on the Internet and making them illegal here would be an exercise in futility. They won’t magically disappear from the torrent sites, CNet, or Sourceforge. Just because Canada decides they’re illegal doesn’t make them illegal in the rest of the world. Like C-32 in it’s current form, making such tools illegal would encourage widespread infringement, be unrespected and unenforcible. Again, this is working against the consumer trends and would ultimately end in complete failure, just as it has with the DMCA in the US.

  11. @Nap
    Region/system coding is another content protection scheme.

    This, plus the two you mentioned are all circumvented by VLC Media Player.

    Speaking of copy protection. Last night, while I was digitizing my CDs, I got to “Radiohead: Hail to the Theif”…there’s a bit of irony there. It specifically says the disk is copy protected. I had no problems copying it. In fact the software I use, CDex (Freeware/opensource), showed the TPM stuff as a separate track called “EVIL COPY PROTECTION SOFTWARE”, or something to that effect. The CD also seemed to play fine in Quintesential Media Player without having to install anything. Are the CD copy protection schemes not supported in Windows 7?


  12. Incidentally, that was the LAST CD I bought from Radiohead.


  13. @IanME: “Are the CD copy protection schemes not supported in Windows 7? ”

    Well the CD copy protection schemes usually work by using a non-standard format. They just mess with it until it plays on most players but does something weird on Windows.

    Now Microsoft is under no obligation to ensure that a non-standard/corrupted format will continue to behave exaclty the same way under Win7 as it did under XP.

    Nap.


  14. Oh well, the CD protection, at least any of the ones I encountered, was broken from the moment it was released since the designer integrated a backdoor in to the design so the protection could easily be disabled if you knew how to do it. THEN they had the audasity to try and sue the guy that discovered it and posted instructions on the Internet.

  15. @IamME
    Do you remember Microsoft v Stac Electronics (the countersuit launched by Microsoft)?

  16. @Anon-K
    The one in regards to doublespace? As I remember It went back and forth a couple times, but they ultimately lost and had to award Stac quite a lot of money. What about it?

  17. @Nap:
    OTOH it is so much clearer and easier to state the whole Copyright law in one single sentence:
    “Thou shalt not distribute copies of this material outside your household”.

    Actually they want to make it so each person would need a separate copy of the material to enjoy in a household. Otherwise you don’t have the rights…

    Someone someone said, they should set the terms of use when you buy the product. If it is a physical product, you can re-sell it because you bought a physical property…none of this license crap. If you digitally downloaded the same product…is it a sale or a license….if it is a license then it should be cheaper as you don’t have the ability to return or resell the product after use. Except it works in reverse. I just picked up a CD a store tonight for my niece that she asked for. It is a new CD contains 2 disks with around 24+ songs. I paid $8 for it. I looked at the same album online and they wanted $17 for the digital tracks….

    We used to buy products online through iTunes or the other online services and have now stopped, you pay more and you have nothing to backup or move from device to device if you want to swap out music lists.

    Anyway, I think someone needs to clearly define what you are getting when you get a digital download vs a physical product and what rights you have with your property. Once that is defined then you can start looking at the laws around copyright. Until then vague agreements are not going to be supported by the public at large or most likely the courts (aka Germany).

  18. ‘identifying alternative mechanisms for providing financial supportive to Canadian creators. ‘ I presume Canada has a VAT type tax. Why duplicate VAT? Why duplicate the management costs of collection and distribution? Why not use some of the money collected By VAT to provide income support to musicians?
    Recording devises are used for many different purposes. Much of the money collected by the levies on the sale of recording devises has no relation to copyright at all.
    If a levy should be be done at all, it should openly a tax collected by the properly supervised public tax office , it should definitely not be a tax hypothecated to use of unrepresentative groups.


  19. @John: “If a levy should be be done at all, it should openly a tax collected by the properly supervised public tax office , it should definitely not be a tax hypothecated to use of unrepresentative groups.”

    Agreed. And if it’s tax money, then I want it to be managed by the government not by CRIA.

    What they propose now is that government collects a tax (levy) and give it to them to manage.

    I would like to see the government distributing it to artists and creators based on government goals (“social good”) not corporate ones (“value for shareholders”).

    If it’s a tax for the artists then let it go to the artists.

    Nap.

  20. hey does anyone know how long it will take for this bill to become law if it passes? I would assume not anytime soon as it took 6 months to get to second reading and their is about 4 or 5 more steps to get through? This bill needs work anyways

  21. @IamME
    That was the original suit (Stac was awarded something like $120M). Microsoft countersued Stac and won ~$12M having convinced a judge that Stac “published” proprietary info based on using the driver kit that Microsoft gave them because they sold a Windows driver that used the info.

    This is a fairly comparable suit to what you described. My point is that if someone can sue for using something you sell them having convinced it is publishing, then actually publishing an unpublished backdoor is not really any different, in particular if it is published to allow others to exploit rather than close.


  22. @IanMe: “Microsoft countersued Stac and won ~$12M having convinced a judge that Stac “published” proprietary info based on using the driver kit that Microsoft gave them because they sold a Windows driver that used the info. ”

    This shows the madness of the current IP system. It’s pretty much like I’m selling you a C compiler then sue you for copyright infringement when you publish any of the programs you wrote because the generated code also contains the standard C libraries code that I wrote and is my “intellectual” property.

    BWahahahaha. Gotcha. Now that you spent money into writing those programs, please note that you can license from us those libraries so you can distribute them too. They’re in high demand thus very expensive.

    And let’s not touch yet what can be done with patents. Like in Intel vs LG here:

    http://www.iam-magazine.com/issues/Article.ashx?g=52a5e001-e3e5-4353-abe3-9f1f8ef48a3c

    Complete madness: Intel is licensed to use LG chips on their boards, but the license does not extend to the final customers, so after they buy the product from Intel they have to license it with LG. Bwahahahahah.

    Nap.

  23. Intellectual “Property”
    Let’s make it clear again: the current US “intellectual property” system is actually used by the established mega corporations to guard their quasi-monopoly. Any startup that would even remotely compete with them will be subjected to a barrage of copyright and patent lawsuits and will go bankrupt long before the judge could reach a verdict.

    It has nothing to do with encouraging creativity – which is the official reason given to anyone questioning the system.

    Nap.


  24. @Anon-K
    Ahhh, OK, I see the similarities now.

    @Nap – RE: Intellectual “Property”
    This is part of the reason why I’ve never bothered to start my own software company. I’m a developer in perhaps the most closed system in the world…Oracle Database. My best prospect would to be bought out by someone bigger, but more likely would end up sued by Oracle.

  25. Sandy Crawley says:

    Compromise welcome
    Thanks for laying out directions for compromise.Constructive thinking is welcome.

  26. you know, if its perfectly fine for a company to release products that don’t work as advertised, or are packaged with stuff that you don’t want to buy under normal circumstances…then we the citizens should be within our rights to cheat as well.

  27. and by “packaged with stuff” I mean secretly.

  28. The digital economy needs a ‘New Deal’
    @Sandy “Thanks for laying out directions for compromise. Constructive thinking is welcome.”

    It’s been here all along Sandy. Those of us who post here often are actually in support of Artists and looking for ways to they can take advantage of new technologies and opportunities. The cat is out of the bag, so to say, on the way things were done in the past and creative thinking along with a willingness to let go of some of the old methods and structures is really the only way forward.

    Along with support for Artists, we also advocate for fair value for consumers, and this DOES NOT have to come at the expense of the creators. Much of the value of media is lost in the distribution channel, I suggest by leveraging new technologies then both consumers and creators can get a better deal in the transaction. The result will be higher profits/value for the creator/consumer and an increase in (currently in short supply) good will.

    The issue of piracy is another conundrum, it’s just not going to go away. Laws will not fix it because it is so widespread it is unenforceable to all but a few unfortunate scapegoats. For most infringers it is better than odds than playing the lottery in getting caught. Technological solutions may work for a while but are ultimately defeatable (HDCP anyone?), and once they are it only takes one in the wild to propagate the globe.

    I think the only practicable solution is to stop fighting personal level infringement (commercial is another story) and offer instead easy, flexible & affordable counter solutions. And for goodness sakes, stop suing or threating you customers with disconnections! That is the biggest mistake the media industry has ever made and will haunt them for a long time to come.

    Let’s instead, creators and consumers both, work together on a “New Deal”.

  29. @ napalm
    Regarding tax -totally agree tax is solely a matter for Treasury.
    Copyright is a individual right it is not a right of dishonest, self appointed, unrepresentative groups.


  30. @Blaze: “you know, if its perfectly fine for a company to release products that don’t work as advertised, or are packaged with stuff that you don’t want to buy under normal circumstances…then we the citizens should be within our rights to cheat as well.”

    Not really. Your rights are limited to:

    – returning the defective product for replacement with identical one
    – suing for compensation/damage

    What p**** me off is that I can’t return for a refund defective CDs/DVDs/Blu-Rays/software. And suing for a $29 something is not practical. So basically there’s absolutely no consumer protection for buyers of media.

    I would have liked to return Avatar when it refused to play because it was not compatible with my Blu-Ray player?

    Why is it that “the industry” has all the imaginable (copy)rights but cannot be hold responsible for the quality of their products?

    Sounds very “balanced” to me.

    Nap.

  31. @napalm
    That’s exactly what I am saying: if the larger, more powerful groups have the “right” to screw us, the citizen, then we should not feel the slightest bit of remorse for “cheating” as well. Two wrongs not making a right, I get that…but when the condition is ubiquitous and the usual protestations/solutions are ineffective, a person must look after him/herself first.

  32. Fire the whole lot of them.
    Which brings me back to my position that legislative or technological measures will not fix the problems facing the media industry. Their MAIN goal should be to fix their broken relationship with the consumer, which is the exact opposite of what they are doing 0_o

    Good job there **AA!

  33. @crockett
    And -that- is what makes me reach for my tin foil hat.
    Either the issues are deliberately created or the people causing the problems are idiots.
    Both options are disturbing because the first indicates a larger conspiracy, and the latter means the problem isn’t going to go away, or if it does it will crop up elsewhere.


  34. Crockett said:
    “Either the issues are deliberately created or the people causing the problems are idiots.
    Both options are disturbing because the first indicates a larger conspiracy, and the latter means the problem isn’t going to go away, or if it does it will crop up elsewhere.”

    Jus because I see conspiracies everywhere, I tend to think it’s intentional. If they “allow” the situation to get bad enough, then they can force a rental/PPV scenario where they perceive much more revenue. In reality, by the time this happens, consumers with be so imbittered it’s likely to completely fail.

  35. @IamME
    lol I said that, not crockett…anyways, so what you’re saying is that it may very well be a little of column A and a little of column B…

  36. LOL
    they wont let any of my posts stick here , yep lets burn information and block views , sure you deserve what comes , please let this pass i really want something to concentrate on , when this is no longer theory then violence will prevail just like it always does , cowards

  37. Apples and oranges …
    Apple today released the digital version of ‘The Beatles’ full box set. This is the first time the full set has been made available in digital format. Now this is Apple who can sell almost anything to their fanboys but I ask why is this digital release priced $30 higher than the same physical set?

    The physical set is superior in the sense that it is in a superior audio format, the tracks can be ripped to a lossless digital file format rather than the inferior ones iTunes is offering, and a physical copy asks as a backup. Then we have the lower cost of distribution and manufacture to add to the question. It seems to me while in some ways digital files are convenient, they are inherently less value than the physical equivalent. So again, why is digital media often the same or even more costly? Where are the extra savings going if not passed onto the consumer?

    If the creator is getting a part of larger share I’m OK with that. Should the distributors be pocketing the difference? Well, in a level free market system that should take care of itself but when government steps in to legislate in old business models then that in itself creates a anticompetitive market.

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