All of this raises the question of whether the government’s approach in Bill C-11 is consistent with this trend. The overall talking points certainly are as the government talks about letting the market rule, protecting creators by targeting piracy, and giving consumers new freedoms. The devil is in the details, however.
Bill C-11 includes provisions to target infringement (the enabler provision) and shifts toward market-focused solutions with the creation of new consumer exceptions that ensure those rights are built into the price of the products, not subject to additional levies. The bill is also cognizant of the importance of Internet freedom with a notice-and-notice approach to Internet provider liability and a consistent rejection of proposals that could lead to terminating Internet service.
The outlier, however, remain the digital lock rules, as was noted in this National Post op-ed. Far from adopting a market-focused approach, the C-11 digital lock rules are among the most restrictive in the world with the government intervening in the market by creating incentives to adopt digital locks. The government message to business is clear: with digital locks you get all your copyright rights plus you get to override consumer rights such as fair dealing, time shifting, or making backup copies. For consumers, the loss of property rights is enormously troubling (and one reason for doubts about the constitutionality of this aspect of the bill). The “right” approach on this issue is to avoid meddling in the market by linking circumvention of digital locks to actual copyright infringement. That would provide legal protection for digital locks but ensure that the copyright balance (including copyright exceptions) is not lost in the process.