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Conservatives Defeat Liberal & NDP Bid to Block C-11

C-11 will eventually receive second reading and go to committee as the government clearly has the votes to pass it unchanged.  However, copyright should not be a partisan issue. There is scope for compromise on all of these issues:

  • On digital locks, the solution advocated by the majority of stakeholders is to link circumvention to copyright infringement.
  • On fair dealing, it is to codify the Supreme Court of Canada’s six factor fair dealing test. 
  • On revenue streams, it is to commit to extending current funding without the budget slashing planned elsewhere

I wrote about these issues over a year ago with the obvious roadmap for a compromise. The compromise remains much the same, but the bigger question is now whether the government is open to it.

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36 Comments

  1. A challenge has to be Made
    I really hope someone eventually challenges this law in court, which at this point seems to be the only way this is going to be changed for hopefully the better. The Cons are too concerned about sucking up to the US in a election year to bother them with this and make them mad.

  2. Enforcement?
    I think parts of the bill like the digital lock provisions are mostly unenforceable. Are the cops really going to raid your house because your ripped a DVD or Blu Ray? As RTMS has said, when they do decide to pick on the wrong person or group and it goes to court it is likely going to crash and burn.

    The DRM provisions in the DMCA did nothing to prevent circumvention in the US (in my opinion and now there’s a move to lighten that part of the law.

    Related to this particular post – I’m glad the opposition parties are at least not laying down and playing dead for this bill. I think there is enough dissent in the general population and they are reading it right. Canadians – you vote for majority governments, this is what you get.

  3. Come on folks …
    They have a mandate from 39% of all Canadians to do whatever the heck they want!

  4. They need this to pass so they can start filling up their super jails with teens putting song and movies on their iPads.

  5. @BillG:
    1. “Canadians – you vote for majority governments, this is what you get.”
    As Crockett already said, the inherently undemocratic Riding+First-past-the-post system allows absolute rule with less than 40% of the popular vote. The system is undemocratic because in a democracy, every vote counts. In this system, only those votes count that land on the biggest pile, per riding. All other votes disappear in the recycling bin.

    2. Enforcement
    That’s the argument one of the Conservative MPs tried to pass off to one of his constituents: just do it, don’t worry, you won’t likely get caught. He didn’t say we’re just doing it to placate our friends south of the border, who are in turn being pressured by their mighty Rights Holders Industry.

    @All
    If you live in a conservative riding, this is a good reason to again contact your MPs office and ask them why they (as their representative, not as a ‘party member’) are not listening to a majority of Canadians (which is something entirely different from a majority of MPs).

  6. For those who care about little things like forthrightness and accuracy, you might want to look more deeply at what is meant by “compromise” in freecultureland:

    http://johndegen.blogspot.com/2010/11/phantom-compromise.html

  7. Devil's Advocate says:

    @Degen:
    “…forthrightness and accuracy”
    “compromise”

    And you are SO the representative epitome of all 3 of those things!
    /s

  8. @Degen
    “what is meant by “compromise” in freecultureland: ”

    I already know what is meant by compromise. I believe the public got the short end of the stick. In fact it’s so short, it’s not even a stick anymore.

    Dr. Geist is the least of your worries though. In case you haven’t noticed, the public is starting to wake up and realize what is actually happening. The Great Copyright Wall is already crumbling…

  9. Dan Steinberg says:

    Synthesis:Law & Technology
    My take on this is, everyone gave them a chance to avoid shooting themselves in the foot with legislation that has serious problems.
    I have enough confidence in our judicial system and in the analysis by many authors that this is property more than copyright. Yes it’s bad law but it’s quite attackable bad law. Perhaps this could stop them from grandstanding at every opportunity? worth hoping for.

  10. @Degen
    Though much of your article focus’ on Access Copyright and no applicable in this context, your post is timely considering the Association of Canadian Publishers has come out against C-11 in its current form.

    “Penalties for circumventing TPMs must apply only to cases of actual infringement. There is no merit in penalizing individuals who circumvent TPMs but do not distribute the unlocked materials or otherwise infringe on copyright in a fair-dealing context. The use of proprietary TPMs tied to reader or player devices must not be allowed to create an uncompetitive retail environment, or a retail environment in which Canadian content is only minimally visible or available to Canadian consumers.”

    I particularly like your quote:
    “He dismissed the concerns of a coalition of writer groups representing thousands of professional creators in this country, and their request for clear legislative guidance within the bill as “fearmongering.””

    What coalition? …since the Association of Canadian Publishers has come out against the digital locks, which are really the only major concern from a consumer standpoint…

    Granted there are other issues mentioned, surrounding education provisions and other creator rights and loss of creator income cause by the bill, but this has less to do with Geist and more to do with our own government trying to appease the US media interests.

  11. @Byte

    I live in Calgary so naturally Conservative. I’ve contacted my MP (Michelle Rempel) three times now and been ignored all three times. Phone, email, and letter. My co-workers also contacted their respective MPs via written letter. Nobody has received any response to date.

    In total I know of 11 people whom have written MPs, not a single reply to any of them. Not even some bland “This is good for you so it is what it is.” They just ignore public response.

  12. Oh, IamMe, the happy ignorance of the free culture crowd is so charming. It’s like watching a bunch of ducklings following their mother around even as she walks into traffic.

    Your response is exactly what the good doctor is always hoping for, and exactly the reason his star has fallen so far among people who actually pay attention.

    The ACP has come out against C-11 in its current form, have they? I hope you’re not referring to Geist’s post from earlier today, because that actually references the ACP copyright consultation submission from over two years ago, before even C-32. It specifically does NOT reference C-11 because time travel hadn’t been invented in 2009.

    As well, the coalition I refer to is, as you quote, “writer groups representing thousands of professional creators in this country.” The ACP represents publishers. We DO know the difference between a writer and a publisher, don’t we?

    I fully expect everyone here to dismiss these mistakes as, you know, just meaningless details. That’s free culture for you… no detail so important it can’t be ignored or obfuscated on the road to digital utopia. All hail the dear leader.

  13. @byte
    “@All
    If you live in a conservative riding, this is a good reason to again contact your MPs office and ask them why they (as their representative, not as a ‘party member’) are not listening to a majority of Canadians (which is something entirely different from a majority of MPs). ”

    Yeah.. John Baird doesn’t respond my letters, emails, or phone calls. Not even an automated response. At least Tony Clement responded with an automated email, but only when an election was called. Maybe I should CC his boss… Surely Harper will listen?

  14. @Degen
    You’ve made no mistakes John. Regardless of whether it’s 2 years old, unless they have a newer submission, this stands as their last opinion on the subject.

    “The ACP represents publishers. We DO know the difference between a writer and a publisher, don’t we?”

    LOL I laughed out loud when I read this. Yes, EMI, Universal, Sony, Time Warner, and so many others demonstrate all too well the difference…the publishers have the money to influence government, while the actual creators are left out in the cold with shitty contracts and are little more than a pest in the government’s eye.

    I don’t know where you’re getting this free culture thing, but most here are quite willing to pay and do. It’s the loss of basic freedoms that have most concerned.

    Digital locks have serious repercussions John. Public domain stuff can potentially be lost, DRM protected purchased media, as Napster demonstrates, could be lost as businesses dissolve. Their solution…burn the media to a disk. A friend of mine’s girlfriend has 1000′s of songs purchased from Napster…all with DRM. Should she have to go out and buy potentially 100′s of CDs and countless hours to convert the media? That’s nothing less than stupid. Libraries have serious concerns, and rightly so. The blanket legal protection of digital locks makes reverse engineering illegal on anything that carries encryption and is a serious threat to all future innovation in the technology sector in Canada.

  15. @Degen
    Also…if you don’t like the 2009 submission, how about the joint statement ACP submitted along with the Canadian Cultural Industries in January, 2011.

    http://www.publishers.ca/images/downloads/acp_ bill c-32 position.pdf

    “While the Copyright Modernization Act (C-32) does include some protections for creators of Canadian content, its “one size fi ts all” approach to rights management – namely relying exclusively on digital
    locks and litigation – leaves many with no protection at all. Unintended consequences of new exceptions to copyright law will result in significant revenue flows being unfairly expropriated and new,
    fledgling markets disappearing before they can develop. From the perspective of a number of rights owners, the net effect is therefore a step back, rather than a step forward.”

    If that’s not good enough, how about from their AGM in June, 2011?

    “While I’m not certain we knew this ourselves at the outset, by last summer it seemed that government, both elected officials and staff from Industry and Heritage, were well aware that the proposed legislation would have a negative impact on the industry. It became clear that the political benefit to the government at least at the time, outweighed concerns they might have for us, especially as the Canada Book Fund was secure for another four years.”

    http://www.publishers.ca/images/downloads/2011 annual report book.pdf

    Doesn’t paint a very positive opinion of the government, does it?

  16. Is anybody seriously surprised by this?

    I really can’t say much more on the subject without risking spiralling down into an obscenity ridden tirade, so I’ll just leave it at that.

  17. IamMe,

    What’s funny is you have no idea what you’re arguing against anymore.

    I’m fine with the ACP’s 2009 submission. There’s more in it I agree with than disagree with, which is more than Geist or any of his regular commenters could say. Same goes for every other bit of “proof” for which you’ve spent your afternoon madly googling.

    You’ll note (if you choose to read carefully) in the C-32 quote they are not saying DRM is the spawn of Satan, rather they are saying it is not enough to protect creators and publishers in the face of other broad exceptions, such as an educational category of fair dealing. EVERYONE who can be considered a stakeholder in copyright has copmplaint about C-11. It’s only the politically unsophisticated who turn such complaints into blanket criticism of a government.

    Again, this is exactly the point behind my criticism. You actually think the ACP is advocating Geist’s position, when they absolutely are NOT. And your confusion was intentionally generated by this blog. That no-one else in the comments section has a problem with this kind of slippery “research” from an extremely well-compensated researcher has me shaking my head.

  18. @Degen
    I know exactly what I’m arguing against. A draconian, unenforceable law that make absolutely no sense in today’s consumer climate.

    “Same goes for every other bit of “proof” for which you’ve spent your afternoon madly googling.”

    LOL, if you know how to use Google, you can find such things in minutes…OR, if you’re smart and efficient, you can just go to ACP’s web site and go to the press releases page. Then, if you’re even more efficient, you can find the bits you’re looking for by doing a text search within the document(s). LOL

    “You actually think the ACP is advocating Geist’s position, when they absolutely are NOT”

    No I don’t think this, by their own quotes I think ACP thinks protection of digital locks will do more harm than good and that “Stevie Wonder”, as my boss likes to call him, and the “Harper government” has a political agenda that is not in the best interest of Canada or it’s creators. I do NOT believe C-11 will help actual creators in the least. It WILL help US big media, it WILL help content providers, it WILL open the door for proprietary legally-locked-in hardware, it WILL create an industry for media lawyers in place of technology R&D. It doesn’t hold much for rights holders. It does nothing to help actual creators who are hog-tied by their contracts, which is most, and it hold NOTHING for consumers. All existing rights and any new rights, or perceived gains are negated by digital locks. As one whose profession is in technology and in education I see all too clearly the dangers of these DRM provisions. Sure I agree with protecting DRM, but only if the use infringes upon copyright, otherwise the law creates a 2-tier set of rights, which is not only wrong, it’s dangerous.


  19. @BillG: “Are the cops really going to raid your house because your ripped a DVD or Blu Ray?”

    http://www.youtube.com/watch?v=5AFS2HVB8l8

  20. This will set Canada back 10 years – how progressive
    Should I shutdown my media server and dig up my old 100 disk DVD player.

    Unbelievable…

  21. So pigs can fly?
    Ah Degen, just as prickly as ever, but nice to hear from you just the same.

    Now to some even cheerier news …

    All suspicions of extreme opening demands aside, some legislators in the USA are actually doing what our government is not, listening to intelligent people’s concerns and offering a workable, acceptable compromise.

    http://arstechnica.com/tech-policy/news/2011/12/sopa-on-the-ropes-bipartisan-alternative-to-net-censorship-emerges.ars

    Now, if only our politicians & some of the more extreme voices in our own backyard would take some notice.

  22. @Asmordean @Liam Thanks for your efforts!

    The more people get hurt, the more people will become vocal. The fight against “Digital Lockdown” is just a warm-up leading up to the fight over TPP: copyright term extension to *70* years *after the creator died*. Unbelievable. I’ve said this before; we should consider ourselves lucky that copyright term extensions in the past were retroactive without compensation – this means that copyright term reductions can be retroactive and without compensation too.

  23. You are all under the impression…
    … the government works for you and not for corporations. Canadians are so deluded it’s disturbing. Nothing short of revolt will deter corporate power from eliminating our rights. Canadians have shown themselves ignorant and unconcerned. They are too busy with private lives to give a rats ass unless enough of them are tossed out on their ass and lose mostly everything in some kind of depression.

  24. “…the bigger question is now whether the government is open to it.”

    I believe that question has already been answered with a resounding “no”.

    Between that and the fact that they have already stated that breaking encryption for personal use won’t be prosecuted (never mind the fact that a person will have to break the law to get the tools to perform such a task in the first place), I’ve long since stopped expecting, or even holding out hope that our government is interested in making sound choices that can endure for years to come.

  25. VPS for mac
    So anyone know of any good VPN programs for mac? Since cons are totally pushing the bill through and not listening to anyone…

  26. @Simon
    Generally a VPN is a connection set up within your OS to use a 3rd party provider. Check this out. I don’t use MAC, but it might help you.

    http://www.publicvpn.com/support/MacOSX105.php

    I would look for service providers in Europe. In particular I would look at the Netherlands and Switzerland. Internet services over there are cheap, robust and fast, especially compared to Canada. More importantly, it gets your public IP out of the country and, especially important, away from US control.

    Remember, and I confirmed this in a conversation with a large US VPN provider I was looking at, if your IP is traced back to an American company, and we’ll soon have the same problem here, they can be forced to hand over subscriber info. In the case of a VPN provider, that information would include your real IP. Getting a North American VPN is nothing more than a placebo that makes you feel like you have more privacy, when the reality of far from that.

    The US has little or no control over European owned providers, which is why I consider them a much better choice.

  27. Robert Smits says:

    Conservatives are bullies
    Look, the Conservatives are bullies. They never met a copyright holder they didn’t like. They’re going to ram this through because they can, not because it’s the correct thing to do. The only time they listen to the opposition is when they’re in a minority. They have no respect for Parliament, the opposition or the public – they are completely ideologically driven.

  28. >>…
    When is this bill expected to pass?

    I don’t think you’ll need a VPN it’s more of just you being more careful of what and where you download, first big mistake would be using torrents and downloading something that just came out.

    This isn’t even a big problem this is small compared to what the USA wants to pass SOPA bill Internet censorship! Now that’s taking it too far.

  29. @Robert Smits: It’s not copyright holders that they are catering to, it’s only those that utilize a particular mechanism to protect their products. This is part of why the bill is so fundamentally flawed… it creates a bias towards a certain type of business model.

    What really blows my mind about this is that the Conservatives have even already said that people aren’t going to be liable for breaking encryption for personal use, which is not altogether surprising owing to enforceability concerns, but the kicker here is that it’s still going to be illegal to acquire the tools necessary to accomplish this in the first place, which means that either a person will have to have the technical skills to create their own tools, or else will be driven to underground markets that operate far enough below the radar that they aren’t caught by law enforcement. This approach *ACTIVELY* tolerates closet lawbreaking, which is the very antithesis of justice. A much saner approach would be to create a personal use exception for breaking encryption for personal use, and to not outlaw the tools that a person might use to accomplish it at all.

  30. Underground tools?
    These so called tools are available with a simple Google search, open source and free. The conservatives know there is no way to curtail these and resigned themselves to not policing them or those who use them for personal reasons.

    So there you go, our conservative government all high and mighty on fighting crime and the sanctity of law, passing a bill to appease the USA all the while whistling Dixie to cover the sound of all those snapping locks.

    Priceless.

  31. @Crocket: Yes, such tools will be readily available for anyone with even a modest amount of Google Fu (although ISP’s may consider such searches to be a violation of their TOS, and could have just cause to terminate one’s connection, since the tools would still be illegal).

    But my main point is that in saying that people breaking encryption for personal use are not going to be liable, the Conservatives have basically decided to adopt a policy that actively abides lawbreaking by this country’s citizens, as long as they do it privately. It is that policy alone that I find truly deplorable for any just government to be party to, and while I realize that enforceability concerns may ultimately be the reason behind why the Conservatives are apparently washing their hands of any such lawbreaking that people are likely going to do, it is so much more sensible to not have something like that as a law in the first place, or to at least have an explicit exemption in the law that permits the activity in personal use circumstances.

    The very fact that the Conservatives themselves have stated they intend to utilize such a policy is yet another illustration of how unjust C-11 is, as it is currently worded. It is fixable, as Mr. Geist himself has frequently pointed out, but the Conservatives, with their current majority government position, are not obligated to be party to any such compromise. It is evident to me that they intend to pass C-11 effectively unchanged in the very near future, in spite of unanimous opposition from other parties, and to be honest, it almost makes me feel like we’re living in a dictatorship.

  32. C-11
    I’ve seen in a number of places C-11 (C-32) compared to law one might expected to see in communist-era Russia. One can draw their own conclusions from such comparisons, but I think it will ultimately be bad for Canada, it’s creators and it’s consumers while favoring only a few big copyright holders. It’s an American law made to favor American big-media interests. I honestly don’t think groups like ESAC understand what their getting in to and that the unintended consequences of this bill will be ultimately be devastating to their members, the Canadian economy and the Canadian entertainment industry as a whole.

    Harper wants his way in to the history books…well this is it…the first Canadian dictator-wannabe. Personally, I hope he and Moore burn in hell.

  33. Oh, looky here.
    http://feedproxy.google.com/~r/Torrentfreak/~3/VmOKk_YWryw/

    “Canadian Songwriters Want to Legalize File-Sharing” ["With prominent members such Bryan Adams, Eddie Schwartz, Randy Bachman and Carole Pope among its ranks, the Songwriters Association of Canada (SAC) is the voice of more than 1,500 Canadian artists."]

    So Degen, what’s your response to this?

    Degen: C-c-c-compromise, uhh, free culture piracy stealing bad! The songwriters association has no legitimacy but all the corporately-aligned corporations I cite and get behind do! I’m totally not a front-end to spread FUD.

  34. Oops
    *should be organizations not corporations.

  35. @Eric
    Nice. The cons in power, will of course simply ignore this as a mere radical extremist rhetoric…along with the submissions from dozens of other groups who collectively represent millions of Canadians. Who are the radical extremists here again? Herr Harper and his US a$$-ki$$ing government if you ask me. I might even go out and vote in the next election, just to vote against the cons.

  36. Why did the NDP vote YEA?
    I’m curious why the NDP throughout debate on second reading spoke about improving the existing bill and proposing amendments in committee, then voted in favour of the Liberals’ amendment to kill it.

    Anyone have any insights into this?