The government yesterday gave notice of time allocation on the Bill C-11 debate, which will cut short the debate over the copyright bill. The move does not come as a surprise, given the willingness to use time allocation for other bills and the Conservatives’ consistent position that it will not further amend the bill. As I’ve stated repeatedly, there is much to like in Bill C-11 including expanded fair dealing, new consumer exceptions, new rights for user generated content, the notice-and-notice approach for ISPs, and the a cap on non-commercial statutory damages (this came up during the House of Commons debate as Conservative MP Chris Alexander quoted my comment on some of the balanced provisions but omitted the criticism on digital locks). Moreover, the decision to reject demands for website blocking, notice-and-takedown, an iPod tax, and disclosure of subscriber information suggest that the bill could have been considerably worse.
However, the decision to leave the digital lock rules unchanged remains the bill’s biggest flaw and given the widespread opposition to the approach makes a mockery of Canadian Heritage Minister James Moore’s insistence that the bill reflects the public support. Yesterday, Moore defended the approach:
With regard to digital locks, the legislation would maintain fidelity within the spirit and intent of the WIPO treaties, which is that the government does not impose digital locks or TPMs on anything. We are respecting the rights of those who wish to protect their own creations with digital measures if they choose to. This is about empowering citizens, creators, those who invest in software, video games, movies and television shows. This is about protecting their right to protect themselves from those who would steal from them. This is not about the government imposing anything. This is about respecting international law, respecting WIPO and respecting those who wish to protect themselves from those who would steal from them. It is a pretty simple concept.
Meanwhile, Conservative MP Robert Goguen argued that “if we do not have locks, it will wipe out the industry.”
Both comments demand a response. As Moore surely knows, the Bill C-11 approach on digital locks goes far beyond the requirements needed to respect international law or comply with WIPO. There are dozens of countries that have implemented digital lock rules with more flexibility than the Canadian approach. Further, a review of the creation of the WIPO Internet treaties demonstrates that a more flexible approach is wholly consistent with their spirit and intent. As for claims that no locks will wipe out the industry, note that Canadian digital music sales have now grown faster than U.S. sales for the past six consecutive years, all without digital lock legislation.
The reality is that the digital lock rules were overwhelmingly opposed as part of the 2009 national copyright consultation and generated strong opposition from opposition political parties, business groups, creator associations, consumer groups, and education representatives. During the committee process both the NDP and Liberals proposed numerous amendments to the digital lock rules, all of which were defeated. Yesterday, the Green Party’s Elizabeth May proposed further amendments (May cited me in a tweet on the proposed amendments, but my help on the digital lock rules was largely limited to pointing to my public submission to the Bill C-32 committee). Those amendments are also likely to be defeated, creating yet one more lost opportunity to amend a bill that seems destined to pass in much the same form as when it was introduced in June 2010.