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The Roadmap to a Compromise on Bill C-32

Yesterday I posted on the urgent need for Canadians to speak out on Bill C-32, with the committee examining the bill inviting email submissions until January 31, 2011.  The post included links to several background posts on the bill, digital locks, and fair dealing.  A more specific proposal on digital lock reforms can be found here.  This week I also have a guest op-ed in the Hill Times (HT version, homepage version) that suggests that the roadmap to a compromise on Bill C-32 can be found among the various policy comments from the political parties late last year.

I note that the last week of Parliamentary activity in 2010 struck many as a new low point for Bill C-32, the copyright reform bill.  The legislative committee examining the bill met only once, maintaining the lethargic meeting schedule that at the current rate could run into the fall if all stakeholders are given their moment in the sun.  

The day after the solitary hearing, Industry Minister Tony Clement and Canadian Heritage Minister James Moore held an impromptu press conference in an Ottawa shopping mall to confirm that they will not introduce an “iPod Tax” and warn that all three opposition parties support such a measure.  When the press conference was quickly followed a radio ad with the same message, Liberal MPs angrily responded that the Conservatives were lying, offering a statement on their C-32 position, including opposition to extending the private copying levy to iPods.

While the events generated considerable ill-will, they may ultimately be viewed as a crucial step forward.  Given the current minority government, it has always been clear that compromise with at least one opposition party will be needed to pass Bill C-32.  With Bloc MPs circulating petitions opposed to the bill, the Liberals and NDP are the obvious hopes for finding a solution.

There is still a divide among the political parties, but the Liberals have now outlined their roadmap for a Canadian copyright compromise, much of which bears a resemblance to public comments from NDP MP Charlie Angus. A deal on C-32 may be there for the taking with the following key issues to be addressed:
 
Fair Dealing

Bill C-32′s fair dealing reforms have generated enormous controversy with inaccurate claims that that the addition of education as a fair dealing category will permit rampant, uncompensated copying.  The Liberal position makes it clear that its officials have not been misled by the misinformation campaign.  Rather, they are supportive of retaining the expanded fair dealing provision with two amendments.

First, the party is calling for a clear definition of “education”, a reform that should be relatively easy to implement given the need to include at least conventional educational institutions within the definition.  Second, it wants “a clear and strict test for ‘fair’ use for education purposes.” This could involve codifying the Supreme Court of Canada’s six-part fairness test within the Copyright Act.  

Digital Locks

The Liberals have repeatedly emphasized the need for Canadians to have the right to circumvent for format shifting, making backup copies, and other consumer activities.  This will require changes to the consumer provisions in the bill and to the general anti-circumvention provision, since both create barriers to these common consumer activities.

This suggests both the Conservatives and Liberals are supportive of retaining legal protection for digital locks, but in order to obtain opposition support (the NDP have voiced similar concerns with the issue), the Bill C-32 approach must be clarified that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright.

Non-Commercial User Generated Content Provision

Several stakeholders have expressed concern that Bill C-32′s non-commercial user generated content provision could harm creators’ commercial exploitation of their works. While the reality is that the provision is limited to non-commercial activities, the Liberals want the language further “restricted and tightened.”  

Once again, this compromise seems doable.  For example, moving the UGC provision within the Copyright Act’s fair dealing rules would establish a second layer of analysis that would require any mash-up to meet both the fairness analysis and the non-commercial criteria.

Private Copying Levy  

Rather than expanding the levy to iPods, the Liberals have called for a new Private Copying Compensation Payment of $35 million to be transferred to Canadian artists each year, through the Canadian Private Copying Collective (CPCC). The proposal garnered praise from the CPCC, but criticism from other creator groups who wondered why the new payment was limited to the music industry.

Bridging the divide on this issue will not be easy, but a possible approach would be to establish a new program linked specifically to the challenges faced by creators in the new digital economy.  For example, a new Digital Economy Transition Fund, backed by revenues generated from the forthcoming spectrum auction, could be used to provide direct support to creators such as musicians, songwriters, screenwriters, and authors. The approach would offer a more transparent and accountable use of public dollars, while providing creators with an additional source of revenue as demanded by both the Liberals and NDP.

Areas of Agreement

The Liberal statement is important not only for what it says, but also for what it does not.  There is no reference to changing the Internet service provider provisions, the rules designed to target websites that facilitate infringement, or the changes to statutory damages.  Each issue has been debated at committee, suggesting that the Liberals may be comfortable with the C-32 approach and offering a glimmer of hope for those anxious to see a copyright bill passed in 2011.

10 Comments

  1. re: “… the Bill C-32 approach must be clarified that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright”

    This suggestion, although I believe the intent is a good one, should be reworded to restrict violations to where the underlying purpose is to *OTHERWISE* infringe on copyright.

    The reason being that if digital protections are part of the copyright act, then defeating the protection itself becomes an act of copyright infringement, so the notion of allowing such bypassing where the underlying intent is not copyright infringement becomes wholly moot.

    I would not put it past our current governing body to essentially pretend to offer a compromise that is worded similarly to the above suggestion, realizing that the offering is wholly moot because infringement is automatic as soon as the protections are bypassed anyways, so no intent to infringe can be assumed unless there is no intent to bypass the lock in the first place.

    Nevertheless, I’m quite thoroughly convinced that the conservatives will not compromise on this issue. They remain resolutely convinced that to allow circumvention for such purposes would only continue to enable Canadians to ignore the copyrighted status on works that are so protected and widely share them with others on public peer to peer networks.

  2. Alex Macdonald says:

    Please, please just THINK about this!!!
    I’ve been “on the Internet” for fourteen years now. Every day I forward media which I did not create; reports my co-workers can use, clips my friends will enjoy, music my wife might like. Even the ministers themselves do this. My daughter does it with over a hundred pieces of media every single day! It makes her popular and she will not stop when it becomes illegal, she has told me so. We all have this great wealth of information now, worth thousands of times more than any money we would have ever paid for it. Some people feel that this violates their rights, but that is an idea that comes from a time when you had to own a printing press in order to violate copyright. And carrying that old idea into the Internet age is like saying that people can only tell jokes that they have made up themselves, or use recipies that they have created.

    All of the economic reasons to impose copyright on the Internet have been proven wrong. We know now that sharing helps an artist financially, it motivates creativity, and it provides us all with a wealth of not only entertainment, but also of intelligence, which we could never have afforded otherwise.

    So making all of this illegal now is not going to work. It will also cost taxpayers for enforcement, for litigation, not to mention the implications on civil liberties, privacy, censorship and the future of democracy.

    Right now we expect that what we do online is private, but in order to enforce this law we will have to allow our activities to be monitored. Of course, this sounds like some conspiracy theory. Ridiculous! Impossible! But that is exactly what the copyright industry has planned, one need only google the words “network level filtering”.

    This law must be stopped. We do not need it at all. It will do no good at all. And our whole society will lose respect for the law, and for this government. The Internet is a peer-to-peer copying machine. Copyright does not make any sense at all on it. Don’t be fooled by the simple man who says that we can’t just let people steal things, creators have rights!! Those rights have been trumped by more important, more valuable rights, and IT IS NOT STEALING!!!

  3. Support our creators first
    There certainly has been a lot of opinions running around out there on this issue, most understandably concerned with the impact upon one’s self. But when it comes down to it there are two main players, the creator and the consumer. All the various middlemen in all their forms are there to facilitate moving the art to the consumer and payment back to the artist. There is of course art for arts own sake but I think that most creators are concerned with and expect compensation for their efforts.

    It’s the middlemen who have been crying the loudest in this transition to the digital age. Yes, creators are concerned with people using their works without compensation, but as creators get only the smallest share of the pie to begin with, it is the industry who is seeing the gravy train drying up. The relationship between the creator and their audience has traditionally been an intimate one. Industry in this last century has changed that into a maximize the profits business.

    Now I’m not against anyone making money but I think it should be the creator who gets the lion’s share of the returns and I don’t think that is the reality we see today. Now with this huge shift in control and distribution that the digital age has brought upon us, I can see an opportunity for the creator to step back into their role both as the benefactor and beneficiary of their craft. Using technology to bring control of distribution back into their hands they could keep a greater portion of profits. Using the social aspects of technology in the digital age would give them back some of that intimacy lost in the cookie cutter pop-song era.

    It’s a ‘age old’ phrase spoken here on these forums but a parable with some truth ‘You can’t put old business models into new wine skins’. The distribution infrastructure of the last century does not fit well into this new digital age. Now is an opportunity for creators to create something new and take back the art and craft.

    This will require a reciprocal relationship between the artist and audience that the big industries has destroyed. To that end I am supportive of the changes to C-32 (imperfect bill that it is) outlined above with the added emphasis that not only the music creators receive support from the government, but others who contribute as well (to a degree where they become self supporting).

    Art and culture is important, and I am for supporting it. I do not have any desire though to pad the wallets of big content. it is time for creators to take back their craft.


  4. @Crockett: Can we cut this “creator” BS…. please… Many people are engaged in creative work… how about architects, engineers and designers of all sorts… including the lady who shapes your wedding cake…. let’s call it what it is…. it’s “the industry” whining to no end, pretending they’re doing it in the name of “starving artists”, and they’re always referring to musicians…

    nap.

  5. @Nap ” it’s “the industry” whining to no end, pretending they’re doing it in the name of “starving artists”, and they’re always referring to musicians… ”

    I couldn’t agree more.


  6. And here’s what some musicians think of it:

    http://www.youtube.com/watch?v=aCkX0KcNwrI

    Don’t forget to visit her web site too:

    http://www.jossstone.com/

    you can listen to her music for free there… unbelievable eh?

    Nap. :-)

  7. WARNING
    Napalm said:
    http://www.jossstone.com/

    you can listen to her music for free there… unbelievable eh?
    _______________________________________
    How do we know that this isn’t just some fan site that has posted her music without her label’s authorization? (Or even that the labels have sent the fan her music to post as a plot to steal the domain name – they have started doing this just recently!)

    No, I’m only going to listen to music that I paid for at stores run by big companies that I trust. (OK, not really, sorry SONY :)

    P.S. Don’t forget to write to the C-32 committee THIS WEEK and tell them that you don’t want no “Information crimes”.

    JUST STEP BACK AWAY FROM MY INTERNET!!

  8. Napalm,

    You are right — Joss Stone is all about love of music and freedom and people just jamming, because music should be free, and who cares about the consequences?

    From the Terms of Use on her website:

    “You may visit, view, and retain copies of the Site for your own personal use but may not duplicate, download, publish, modify, or otherwise distribute information from the Site for any purpose other than to review event information and to purchase tickets for personal use, unless otherwise specifically authorized by jossstone.com or Bubbleup Ltd. jossstone.com reserves the right to refuse service, terminate accounts, and/or cancel orders at their discretion, including, without limitation, if jossstone.com believes the customer’s conduct violates applicable law(s) or is harmful to the interests of jossstone.com.”

    Imagine, a whiney industry paying a talented young singer to just jam and be free.

    Back to the real world now.


  9. @Degen:

    Are you working for “the industry”? Because I’m sensing their modus operandi….. I’m talking about the *songs* and you reply with the terms of use for the *website* (aka the html pages).

    But since we’re at it, which other individual/corporation explicitly allows you to make copies of their entire websites for your personal use?

    Nap.

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