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Ten Key Questions and Answers About Bill C-11, SOPA, 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).

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20 Comments

  1. unacceptable?
    those ‘completely unacceptable’ threats are a response to people NOT being heard.. or listened to.. or any changes made.

    seen any reports of radiation levels in canada since japan’s reactor went?

    demonstations against acta treaty?

    voter fruad? fixed elections? banking mortgages with crown corps? (since calgary went bust, please)

    it’s more of a sign of (now almost) violent protest against Big Momma S’mother, to me.

    packrat2

  2. Thank you
    For putting it out there clearly. I liked the way that you used quotes around the expert part of “Financial Post’s Terrance Corcoran offering his “expert” legal opinion.” Haha, too funny. Nice to have a resource like this blog to get answers to my questions.

  3. Terrance Corcoran : “Expert”
    Clearly, Mr. Corcoran of The Financial Post prefers the bureaucratic side of the copyright debate, over the technical. I guess his expertise is purely legal, and the technical aspects are mere encumbrances that muddy the “real” argument.
    Having personally perused sites like ThePirateBay, Demonoid, and ISOhunt, I can’t say I’ve ever seen a “…1.2 gigabite dot-torrent file.” In my personal computer’s bittorrent directory, I see a LibreOffice .torrent file at 33 kilobytes, an operating system DVD ISO-image .torrent is 43 kilobytes, and Pioneer One’s fourth episode weighing in at a whopping 94 kilobytes. I looked, but couldn’t find a dot-torrent file with any of Corcoran’s published works -snicker-.
    In conjunction with the question posed by The Financial Post’s Corcoran:
    “Only days after its release, The Grey is being skinned alive on the copyright piracy market. Who knows how many people will watch it via the isoHunt piracy site and other sites in Canada and elsewhere?”
    I think it is also relevant to ask “How many people are going to go and buy that movie, now that they’ve watched it and know they like it?”, and in response to his assertion of grand loss, “How may of those downloading weren’t going to purchase it anyway?”.
    His interrogative approach is a sneaky, speculative way to segway into a rant against anyone who disagrees with him, but really, haven’t we already *factually* established that Canadians who employ the bittorrent protocol, tend to actually purchase *more* media, than those who don’t?
    Now, Mr. Corcoran of The Financial Post, I do not consider myself to be one of your “…revolutionaries against copyright reform…”, but I do consider the laws being proposed to be a revolutionary change to society (not in a good way), and I also consider computers & their communications to be revolutionizing the market & society (in a good way). Having read your “expert” opinion, I find you to be a crotchety old man with a skewed perspective, devoid of any real understanding of the technology you believe needs to be suppressed. You don’t understand it, but you know it’s bad.
    I’ll finish my little tirade with this question: Would we have been better off if, 75 years ago, we decided to stop allowing newsprint distribution of information?

  4. Oh yippee…
    Another “public consultation” that our government will turn around and selectively ignore a majority of submissions that they don’t happen to agree with.

  5. Copyright VII: Generations
    From the protests against ACTA in Poland and the rest of Europe and soon in Canada as well, we can learn one thing. The signs do not say that they want their fake Louis Vuitton handbags, or counterfeit Rolex watches. It’s only about the free Internet. The Internet is a massive storage and forwarding service of information, some of which is burdened by copyright. That information is not free to flow.

    Ten years ago it would be unheard of to see thousands, even tens of thousands, take to the street and protest. Ten years ago it would also be unheard of that hundreds of thousands, if not millions, consider the RIAA/MPAA et al. (“MAFIAA”) to be their enemies. Yet here we are.

    The thing is that these people are rarely over 40. This is a good thing. Eventually the copyright reform (as opposed to “modernization”) will come. It’s just a matter of time for the older generations to ahhh… scroll off the top of the screen. Copyright didn’t really have a meaning (*) to the general public 30 years ago, and it won’t really mean anything to them 30 years from now. Mark my words.

    (*) With “have a meaning” I mean: make a significant difference. Aesop’s Fables were public domain back then in 1982, but for the general public it still meant going to a book store and buying a copy – those on CompuServe that might have downloaded it and read it on their monochrome screens would be a tiny minority (GEnie and The WELL didn’t exist back then, let alone public Internet access).

  6. ACTA – March 1st
    Guess who will be speaking at an EU INTA (International Trade) ACTA workshop panel discussion on March 1st in Brussels? That’s right, no one other than our own Dr. Michael Geist:

    http://www.europarl.europa.eu/document/activities/cont/201201/20120130ATT36596/20120130ATT36596EN.pdf

  7. What can I do to combat C-11?
    What can I do as a working stiff to stop the implementation of this bill?

    Where can I direct my energies?

    Regards

    scroffa…

  8. georgiantriangle@gmail.com
    Have you viewed your site with Google Chrome?

  9. Concerned Citizen says:

    Byte,

    Who’s paying for Geist’s travel to Brussels?

  10. re. what with whitle-blowing site?
    I was wondering, will C-11 (or ACTA) affect in a negative way sites supporting whistle-blowing? (where whole documents are published in the interest of the public)

  11. Regarding whistle-blowing sites…
    I was wondering, will C-11 (or ACTA, or TPP, etc.) affect in a negative way sites supporting whistle-blowing? (where whole documents are published in the interest of the public)

  12. There are several issues with Bill C-11
    If Bill C-11 concerns you it literally only takes a minute to send your MP and other government officials an email with the link below:

    http://www.ccer.ca/letter-wizard-enter/
    Canadian Coalition for Electronic Rights
    http://www.ccer.ca/
    Below are some resources if anyone wants to know more ( I have included some of my own thoughts about this Bill as well):
    http://dearthey.com/2012/01/26/a-copyright-quickie-canada-is-about-to-pass-sopas-evil-little-brother-politely/
    “Did you get accused of internet piracy but no evidence has been presented and a trial date hasn’t even been set? Under C-11 your ISP will now be forced to terminate your internet access.” – UN has proposed that internet access should be a human right. (It’s the future telephone system, modern life is increasingly dependent on it)

    http://notavailablein.ca/2012/01/the-dmca-and-sopa-all-rolled-up-into-one-bill-c-11/

    Recent changes make Bill C-11 very much like the DMCA and SOPA

    Issues:

    1. Bill C-11 digital lock rules go way too far.
    2. Can’t unlock a DVD, CD, or Video game for fair use.
    a. I.e. you can’t transfer movies or music from your cd/dvd collection to your iPod anymore
    3. Can’t unlock a cell phone to switch to another provider.
    4. Cant unlock ebooks for research or private study
    5. Obligated to destroy new course materials deployed in an electronic format
    6. TV shows can be flag by broadcasters making recordings on your PVR/DRV illegal
    a. I.e. having a copy of the last CFL game on your DVR would be illegal
    7. Apparently Viacom has a grievance with youtube. The new legislation would allow them to exercise legal action against youtube in Canada.
    a. Under new legislation youtube may become a thing of the past in Canada.
    8. New legislation looks like it will hinder creativity with digital materials.

    The Problem is overstated (ideas to take into consideration):

    1. It’s already illegal to distribute copyrighted material
    a. Why do we need further legislation?
    2. The number of online downloads times the retail price does not equal the loss of revenue to industry. Not every 15 year old who downloads something actually has money to purchase a retail copy; so the industry would not get the revenue anyway.
    3. I don’t condone digital piracy, but it’s not the same as physical property theft.
    a. In digital piracy the thing being stolen is a new copy of something created by the pirate.
    b. With physical theft someone is deprived of something they possessed.

    • Given the nature of the crime the government could better allocate our resources in other ways.

  13. Bill C-11 Issues Part 2
    My friend Andrew was unable to comment, but he wanted to add the following points:

    1. Illegal already – writing it twice doesn’t make it twice as effective -> enforcement methods can be changed – but there is no requirement to reply to the knee jerk/money lobbying made by the industry without proper and correct research -> while also avoiding wasting the tax payers money to pay for the industries policing.

    2. Claiming a huge loss (while important) is irrelevant if the product could never be purchased in the first place. Photoshop/3D Studio Max $1000-$3500 no teen can afford that – their action of piracy however wrong can’t in turn be followed up by a company claiming a loss for a product that would in turn never have been sold in the first place.
    —–
    The following link brings up an interesting point. Something that gets overlooked with this issue is that piracy can lead to increased sales for a company though increased exposure of their product to the public. It is essentially free advertisement for the company.

    In the case of a program like 3D Studio Max (which is 3D computer graphics software used in video game design and by the TV/Film industry) a teen that pirates this $3500 program may cultivate new skills and avenues for creativity. If they follow this up by pursuing employment with their new found interest/skills the company that employs them to create 3D graphics will buy the $3500 software. I have seen this happen with 3D Studio Max and other programs used to create digital media.

    While this does not justify/condone piracy, it does show that there are additional dynamics to consider.
    —–
    Neil Gaiman: Piracy Leads to More Book Sales

    Neil Gaiman, author of the ‘Sandman’ graphic novels and best-seller ‘American Gods,’ talked about the pirating of his titles to OpenRight Group. Ap…

    http://www.switched.com/2011/02/11/neil-gaiman-piracy-leads-to-more-book-sales/
    —–
    http://skeptics.stackexchange.com/questions/7680/can-acts-of-ip-piracy-be-more-beneficial-than-harmful

    software – Can acts of IP piracy be more beneficial than harmful? – Skeptics – Stack Exchange
    skeptics.stackexchange.com
    McMillen believes that the more people who steal his games, the more will eventually buy them. He sees piracy as nothing more than a huge sampling exercise. “If the game gets pirated heavily, if it’s a good game that people really like, they’re going to either buy it eventually or they’re go…
    ——
    http://caseyhendrickson.wordpress.com/2011/02/07/movie-piracy-streaming-may-actually-increase-sales/

    Movie Piracy & Streaming May Actually Increase Sales
    caseyhendrickson.wordpress.com
    The battle over media piracy has been raging for years. Conventional wisdom dictates that piracy hurts the finances of the artists and corporations who produce the product. That notion has bee…
    —–
    If Bill C-11 concerns you it literally only takes a minute to send your MP and other government officials an email with the link below:

    http://www.ccer.ca/letter-wizard-enter/

  14. RE: Question 6 and 7
    Its funny that music and software industries have fared so well in Canada given that Canada was placed on the USTR Special 301 Priority Watch List for 2009 and 2010. I am unsure about our ranking in 2011. (http://www.ccer.ca/category/canadian-copyright-reform/)

    “Internet piracy is a significant concern with respect to a number of trading partners, including Brazil, Canada, China, India, Italy, Russia, Spain and Ukraine.” (http://www.ustr.gov/webfm_send/1906)

    Based on this I question how dire the need for further legislation is. The industries involved do not appear to need further protection as they are alive and vital. Is it really worth restricting the fair use of digital media? Do we really need to crack down of the 15 year old who is downloading digital media? Is that 15 year old not going to be the industries future consumer once they have a disposable income that would allow them to support their favorite artists, authors, and software developers?

    Although none of the points justifies piracy or copyright infringement. Perhaps there is some truth to the argument that increased exposure due to the sharing of digital media increases sales. Something to think about. :-)

  15. “additional dynamics to consider.”
    > “While this does not justify/condone piracy, it does show that there are additional dynamics to consider.”

    We don’t even all agree where the value of a work stems from at the moment (is it material — can you sell it used? or is the license the origin of value, in which case you could argue you should always have access to the “best” quality copy and be free to format/time shift as you see fit, effectively making it a one-time sale in a different sense). Yet others (myself included) don’t want to acknowledge any value in copies at all since, in addition to wanting to sidestep this mess, in today’s world where we all use the internet, copyright simply restricts culture, reuse, and free speech, and a rejection or restructuring of copyright would still leave creators with the same option we all have: that of being paid directly for spending their time or delivering something (a copy).

    The economics of copyright are not at all obvious. Not only are there questions, there may be contradictions, and I for one think have built our house on a cliff.

    Nevertheless, we are ready to rule on it and force a world of scarce ideas down everyone’s throat, contradictions and all. Trust us, it’s good for you.

  16. Captain Canuck says:

    The dead
    The biggest touring band of all time actually allowed people to set up at their concerts and make and sell bootleg copies of it. The Grateful Dead. Last I heard they were all doing just fine financially.
    And irony of ironies, it seems one of the biggest industry voices of the anti-piracy acts is Sony, who used to have a big market for consumer high speed cassette dubbing decks. I think frankly what we have going on here is a couple of industries who haven’t figured out yet how to make money in the information age and are having the laws rewritten to protect industrial age business models which are no longer relevant.

  17. I’m a dangerous criminal…
    My mother loves ‘Murdoch Mysteries’. One night she was sick and missed an episode. I recorded the show on my PVR, and burned a copy onto DVD for her. Send the RCMP to arrest me, please. I’m crying out for help, here.

  18. purchasing in canada
    if the prices of dvds and cds came down it might not be so bad, but on top of over pricing we also have taxes. also most canadians are sheep….they do what the media tells them. i do not like canadian music…justin beiber etc. and anything they play on the radio is bubble head music. sounds like 1 person writes the music, 2 people write the words and about 40 different singers. i like european metal…try and go into a cd store and buy one…good luck. so i have to go to the internet.
    i used to order cds until someone said that it cost them $15 or less but i will get charged $34 and up. i once had to pay $50 for one and it took 8 months to get.
    dvds are a different story….i refuse to pay the over pricing. actors as well as sports people are paid way too much money, not saying it isn’t hard to do but nobody is worth the amount they make. they should get $10.00 an hour just like everyone else.
    had to be said!!!!

  19. George Melchers says:

    http://www.saleincoachoutlet.com/
    BS. They’re looking for handouts. The Government subventioned them last round and now they’re asking for more subventions. “Give it us for free or we go home”. Muhahaha.

  20. re
    They do release this bill because of various reasons. Still many people do give their opinions about this matter.

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