The Bill C-11 legislative committee concluded its clause-by-clause review yesterday as eight government amendments were added to the bill and all opposition amendments were defeated. The amendments included an expanded enabler provision and some modest tinkering to other elements of the bill. There are still several steps needed before the bill passes including third reading at the House of Commons, Senate review, and ultimately royal assent, but Canadian copyright reform is well on its way to completion before the summer starts.
In the days leading up to the clause-by-clause review, many focused on three key issues: no SOPA-style amendments such as website blocking or warrantless disclosure of information, maintaining the fair dealing balance found in the bill, and amending the digital lock provisions. By that standard, the changes could have been a lot worse. The government expanded the enabler provision, though not as broadly as CIMA requested. Virtually all other copyright lobby demands – website blocking, notice-and-takedown, iPod tax, copyright term extension, disclosure of subscriber information – were rejected. Moreover, the provisions supported by consumer and education groups including user generated content protection, time shifting, format shifting, backup copies, Internet provider liability, and statutory damages reform were left untouched. This represents a major victory for the many Canadians and groups such as Open Media that spoke out on these issues.
The fair dealing provision was similarly left unchanged despite a full court press from publishers and copyright collectives who sought elimination of the education category within fair dealing (didn’t happen), inclusion of the Berne three step test in the law (didn’t happen) or a new fair dealing test that overrules the Supreme Court of Canada CCH test (didn’t happen). The expanded fair dealing provision will not cause the horrors claimed by those groups and it is heartening that the government dismissed the misinformation campaign.
The only loss was the least surprising – digital locks. Despite widespread support for compromise legislation and sensible amendments from both the NDP and Liberals, the government rejected any changes. Given the government’s consistent support for digital locks, the ongoing pressure from the U.S., and Prime Minister Harper’s direct intervention on the issue in 2010, amending the digital lock rules presented a major challenge. Government MPs yesterday emphasized the possibility of future new exceptions via regulation but that will be cold comfort in the short term to those with perceptual disabilities, researchers, documentary film makers, consumers, and the many others adversely affected by the restrictive approach. In fact, one NDP MP raised the possibility of constitutional challenges to the bill.
As for the weeks ahead, Canadians must continue to make their views known to their MPs and the government ministers. As Russell McOrmond has accurately noted, the bill gets the copyright provisions right and non-copyright provisions wrong. In other words, those seeking balanced copyright may have lost on digital locks, but won most other battles (even Terence Corcoran acknowledges the impact). The copyright lobby groups that saw many of their demands rejected will undoubtedly be out in force in the weeks ahead in an effort to make last minute changes. Canadians should continue to speak out in order to preserve the many good provisions in Bill C-11 and hold out hope that modifications to digital locks – or at least a commitment to some additional exceptions via regulation – are possible.