In recent days there has been massive new interest in Canadian copyright reform as thousands of people write to their MPs to express concern about the prospect of adding SOPA-style rules to Bill C-11 (there are even plans for public protests beginning to emerge). The interest has resulted in some completely unacceptable threats and confusion – some claiming that the Canadian bill will be passed within 14 days (not true) and others stating that proposed SOPA-style changes are nothing more than technical changes to the bill (also not true). Even the mainstream media is getting into the mix, with the Financial Post’s Terrance Corcoran offering his “expert” legal opinion that CRIA’s lawyers are likely to lose their lawsuit against isoHunt.
Given the importance of Canadians speaking out accurately on Bill C-11, ACTA, and the TPP, I’ve posted ten key questions and answers to sort through the claims. The first eight questions address the links between Bill C-11 and SOPA as well as proposed changes to the current copyright law. The final two question focus on ACTA and the TPP.
1. What, if anything, are the links between current Bill C-11 and SOPA?
Bill C-11, the Canadian copyright reform bill, is the latest iteration of several attempts at Canadian copyright reform. There is a lot to like about the bill: it includes an expansion of the fair dealing provision, new consumer rights for format shifting, time shifting, and backup copies, a provision facilitating user generated content, a new distinction between commercial and non-commercial infringement, as well as a fair and effective approach to Internet provider liability. Some of these provisions are not perfect (flexible fair dealing would be better than the C-11 model, eliminating statutory damages for non-commercial infringement is needed), but the bill is far better than prior Conservative copyright bills.
As I have stated since its introduction, Bill C-11 is flawed but fixable. The major problem with the bill remains the digital lock provisions, which eviscerate many of the new consumer rights and undermine fair dealing. The approach has been widely criticized by dozens of groups representing business, creators, consumers, educators, and librarians. The proponents of the digital lock rules are chiefly U.S.-backed lobby groups, the same groups that were behind SOPA in the U.S. In fact, there is considerable evidence that the Canadian approach is a direct result of ongoing U.S. pressure on the issue. Had SOPA passed, it included a provision requiring further linkages between U.S. trade pressure and intellectual property policy.
2. Could Bill C-11 become more like SOPA?
Yes. Last week, I noted that music and entertainment software lobby groups have proposed SOPA-style changes to C-11. For example, the industry wants language to similar to that found in SOPA on blocking access to websites, demanding new provisions that would “permit a court to make an order blocking a pirate site such as The Pirate Bay to protect the Canadian marketplace from foreign pirate sites.” Section 102 of SOPA also envisioned blocking of websites.
Several lobby groups also want language similar to that found in the infamous Section 103 of SOPA. That provision, which spoke of sites “primarily designed or operated for the purpose of…offering goods or services in a manner that engages in, enables, or facilitates” infringement, raised fears that it could be used to shut down mainstream sites such as Youtube.
According to a music industry document, Bill C-11’s “enabler provision” should be expanded to include “services that are primarily operated to enable infringement or which induce infringement.” Those demands are echoed by the Entertainment Software Association of Canada, which called on the government to “amend the enabling provision to ensure that it applies to services that are “designed or operated” primarily to enable acts of infringement.” Both groups also want statutory damages added to the enabler provision so that liability can run into the millions of dollars for a target website.
Bill C-11 committee member Dean Del Mastro, a Conservative MP, specifically referenced the enabler provision in a recent interview about potential changes and there are rumours that the U.S. government is pushing the Canadian government to toughen the enabler provision (while keeping the digital lock rules unchanged).
3. Are there plans to add “three strikes and you’re out” Internet termination rules to Bill C-11?
The government has indicated that it does not want to add Internet termination (often called graduated response) to the bill. However, the music industry is demanding that Internet providers be required to adopt a termination policy for subscribers that are alleged to be repeat infringers. According to the music industry document:
To incent service providers to cooperate in stemming piracy by requiring them to adopt and reasonably implement a policy to prevent the use of their services by repeat infringers and by conditioning the availability of service provider exceptions on this being done.
This demand would move Canada toward the graduated response policy that could result in loss of Internet service for Internet users. There is no indication in the music industry document of due process or even proof of infringement.
4. Are these SOPA-style changes simply technical amendments?
No. The expansion of the enabler provision to include SOPA-style rules could create new legal risk for legitimate websites. For example, last week I illustrated how the rules could be used to target online video sites such as Youtube. If those proposed changes are adopted, it could create a huge chill in the investment and technology community in Canada. Online video sites, cloud computing sites, and other online services may look at the Bill C-11 and fear that even a lawsuit could create massive costs, scare away investors, and stifle new innovation.
5. Can Bill C-11 be fixed?
I believe the answer is yes. First, the SOPA-style demands, including website blocking, Internet termination, and expanded liability, must be rejected. Second, the digital lock provisions must be fixed by linking circumvention of digital locks to copyright infringement. Such an approach enjoys broad support as it would provide legal protection for digital locks, be consistent with the WIPO Internet treaties, and follow the model of trading partners such as New Zealand and Switzerland.
6. Aren’t these digital lock rules needed to help the music industry?
No. As the industry itself now promotes, Canada is a leader when it comes to online music sales. Canada is the 6th largest market for recorded music in the world, ranking 6th for digital sales and 7th for physical sales. Digital sales have grown faster in Canada than the U.S. for the past five consecutive years. There are wide range of online music services in Canada, all created without restrictive digital lock rules. I delivered a full talk on the issue titled Why Copyright Reform Is Not the Cure for What Ails the Music Industry last year at the Nova Scotia Music Week conference (talk sources).
7. Aren’t these digital lock rules needed to help the entertainment software industry?
No. The Entertainment Software Association of Canada has been one of the most outspoken proponents of restrictive digital lock rules. Yet its own evidence demonstrates why balanced digital lock rules do not put the industry at risk. In 2007, it released a report called Entertainment Software: The Industry in Canada, which estimated that there were approximately 9,000 video game jobs in Canada. Four years later, the industry has grown to 16,000 jobs, yet Canada has had no digital lock legislation during that period. In other words, without any changes to Canadian copyright law, the industry has emerged as a major success story.
Not only is the claim unsupported by years of experience, but when the industry was recently asked about perceived risks, copyright concerns fell well down on the list. Last year, the ESAC commissioned a study by SECOR Consulting that surveyed the industry and asked for the top three risks faced by the Canadian video game industry over the next two to five years. Copyright ranked far behind many other concerns.
8. Aren’t these digital lock rules needed to be compliant with international law?
No. While digital lock rules are needed to comply with the WIPO Internet treaties (which Canada has signed but not ratified), the treaties offer considerable flexibility in their implementation. I addressed the issue in great detail in a peer-reviewed article on the topic. The article is part of a larger book on Bill C-32 (the predecessor to C-11) called From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda. It is available as a Creative Commons licensed download.
9. Where does Canada stand on the Anti-Counterfeiting Trade Agreement (ACTA)?
Canada signed ACTA in October of last year. At the moment, ratification of ACTA will require legislative change in Canada. Some of those changes are contained in Bill C-11, but not all. A second intellectual property enforcement bill is expected to be introduced in Canada later this year that will provide new powers to customs officials as well as other measures. The Department of Foreign Affairs is presently conducting an open consultation on ACTA. Email your comments to the department or write Consultations and Liaison Division (BSL), Anti-Counterfeiting Trade Agreement (ACTA), Foreign Affairs and International Trade Canada, Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario, K1A 0G2.
10. Where does Canada stand on the Trans Pacific Partnership Agreement (TPP)?
The Canadian government filed notice of a public consultation on December 31, 2011 on the possible Canadian entry into the Trans Pacific Partnership negotiations, trade talks that could result in an extension in the term of copyright that would mean nothing new would enter the Canadian public domain until 2032 or beyond. The TPP covers a wide range of issues, but its intellectual property rules as contemplated by leaked U.S. drafts would extend the term of copyright, require even stricter digital lock rules, restrict trade in parallel imports, and increase various infringement penalties. I’ve written about the effect in Canada here, here, and here.
The major intellectual property lobby groups want to keep Canada out of the deal until we cave to the current U.S. copyright demands. The IIPA, which represents the major movie, music, and software lobby associations, points to copyright reform and new border measures as evidence of the need for Canadian reforms and states “we urge the U.S. government to use Canada’s expression of interest in the TPP negotiations as an opportunity to resolve these longstanding concerns about IPR standards and enforcement.” These are the same groups that supported SOPA in the U.S.
The consultation is open until February 14, 2012. All it takes a single email with your name, address, and comments on the issue. The email can be sent to consultations@ international.gc.ca. Alternatively, submissions can be sent by fax (613-944-3489) or mail (Trade Negotiations Consultations (TPP), Foreign Affairs and International Trade Canada, Trade Policy and Negotiations Division II (TPW), Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario K1A 0G2).