There is no sugar-coating the loss on digital locks. While other countries have been willing to stand up to U.S. pressure and adopt a more flexible approach, the government, led by Canadian Heritage Minister James Moore on the issue, was unwilling to compromise despite near-universal criticism of its approach. It appears that once Prime Minister Stephen Harper made the call for a DMCA-style approach in early May 2010, the digital lock issue was lost. The government heard that the bill will hurt IP enforcement, restrict access for the blind, disadvantage Canadian creators, and harm consumer rights. It received tens of thousands of comments from Canadians opposed to the approach and ran a full consultation in which digital locks were the leading concern. The NDP, Liberals, and Green Party proposed balanced amendments to the digital lock rules that were consistent with international requirements and would have maintained protection for companies that use them, but all were rejected. Yet with an eye to the Trans Pacific Partnership as well as pressure from the U.S. government and U.S. backed lobby groups, seemingly no amount of evidence or public pressure would shift its approach. The net result is incredibly disappointing with even Conservative MPs assuring constituents that digital lock enforcement against individuals is unlikely (there are no statutory damages for non-commercial circumvention).
Despite the loss on digital locks, however, the passage of Bill C-11 features some important wins for Canadians who spoke out on copyright.
Since the Conservatives took power in 2006, there were effectively four bills: the Pre-Bill C-61 bill that was to have been introduced by Jim Prentice in December 2007 but was delayed following public pressure, Bill C-61 introduced in June 2008, and Bill C-32/C-11, which was introduced in June 2010 (and later reintroduced in September 2011). The contents of December 2007 bill was never released, but documents obtained under the Access to Information Act provide a good sense of what it contained (a call was even scheduled on the planned day of introduction between Prentice and U.S. Ambassador David Wilkins to assure the U.S. that digital locks were the key issue and would not be altered). This chart highlights many of the key issues and their progression over the years as the public became increasingly vocal on copyright:
|Issue||Pre-Bill C-61 (2007)||Bill C-61 (2008)||Bill C-11 (2012)|
|Fair Dealing Expansion||No||No||Yes (education, parody, satire)|
|Format Shifting||No||Limited (only photographs, book, newspaper, periodical, or videocassette)||Yes (technology neutral, no limit on number of copies, includes network storage, and no reference to contractual overrides)|
|Time Shifting||No||Limited (no network PVRs, Internet communications)||Yes (C-61 limitations removed)|
|User Generated Content Exception||No||No||Yes|
|Statutory Damages Cap||No||Limited ($500 cap for downloading)||Yes (Max of $5000 for all non-commercial infringement)|
|Enabler enforcement provision||No||No||Yes|
|Internet Publicly Available Materials Exception for Education||Yes||Yes||Yes|
|Public Performance in Schools||No||No||Yes|
|Technology Neutral Display Exception in Schools||No||No||Yes|
|Limited Distance Learning Exception||Yes||Yes||Yes|
|Limited Digital Inter-Library Loans||Yes||Yes||Yes|
|Three Strikes//Website Blocking||No||No||No|
|Internet Location Tool Provider Safe Harbour||Yes||Yes||Yes|
|Broadcaster Ephemeral Change||No||No||Yes|
|Expanded Private Copying Levy||No||No||No|
|Commissioned Photograph Change||Yes||Yes||Yes|
|Alternate Format Reproduction||No||No||Yes|
The first five issues – fair dealing, time shifting, format shifting, backup copies, and user generated content – are all user-focused reforms. None were the source of serious interest from the major lobby groups (even education groups were initially more interested in an Internet exception than fair dealing reform). None were included as part of the pre-Bill C-61 approach and just two appeared in limited form in Bill C-61 itself. Yet as the public became increasingly engaged on copyright, the government shifted its approach and added these provisions in an effort to address their concerns. The importance of these provisions should not underestimated. For example, the non-commercial user generated content provision contains broad protections for individuals and websites that host the content.
The next two issues on the chart – statutory damages and enforcement – were not part of the 2007 bill either. The goverment eventually arrived a trade-off that most Canadians would make: a tougher provision to target sites that facilitate infringement (the law already allows rights holders to do this) in return for a full cap on liability for non-commercial infringement. This applies not only to individuals (likely bringing to an end the prospect of file sharing lawsuits in Canada) but to any non-commercial entity including educational institutions and libraries (who may adopt more aggressive interpretations of the law with less risk of liability).
The success of individual Canadians is also found in what did not make its way into the bill. Despite some other countries caving to pressure on increase Internet provider liability by adopting notice-and-takedown, three strikes, or website blocking, all those measures were rejected by the Canadian government. The pressure for website blocking during the SOPA debates was particularly intense but it generated tens of thousands of emails earlier this year that seemingly put a stop to the prospect for their inclusion in the bill. Instead, C-11 kept the more balanced notice-and-notice system with the benefits of effectiveness and preservation of free speech and subscriber privacy. Similarly, efforts to expand the private copying levy were rejected, replaced by the backup copy and format shifting provisions that allow Canadians to make personal copies with no additional fees or liability. These are all issues that respond to public voices on copyright.
The government gradually did more for education as well. The exception for publicly available materials on the Internet was there from the beginning, but the expansion of fair dealing and the new exceptions for display (which could prove very valuable) and public performance (which should save significant money in licence fees) which only arrived in 2010 are useful. The digital lock rules and the restrictive distance learning provisions (with destruction of lessons) hurt, but the education provisions unquestionably improved since 2007.
This is not to suggest that the changes are due solely to Canadians speaking out on copyright. They clearly are not: the broadcaster reforms reflect the strength of that lobby and the retention of notice-and-notice certainly owes much to the influence of Canada’s telecom companies. Moreover, the identity of the government ministers makes an enormous difference, with former Industry Minister Tony Clement clearly focusing on the importance of a technology-neutral, forward looking approach that led to important changes in Bill C-32.
Yet it can be argued that the two most important forces shaping the evolution of Canadian copyright policy since the Conservatives took power in 2006 have been U.S. pressure on digital locks matched against public pressure for greater flexibility and balance. The U.S. pressure was relentless, particularly in the aftermath of Canada caving on an anti-camcording provision that sent the message that high level pressure worked. The result were digital lock rules mandated at the very highest level in the Canadian government.
Public engagement on copyright continuously grew in strength – from the Bulte battle in 2006 to the Facebook activism in 2007 to the immediate response to the 2008 bill to the 2009 copyright consultation to the 2010 response to Bill C-32. While many dismissed the role of digital activism on copyright, the reality is that it had a huge impact on the shape of Canadian copyright. The public voice influenced not only the contents of the bill, but the debate as well with digital locks the dominant topic of House of Commons debate and media coverage until the very end. Bill C-11 remains a “flawed but fixable” bill that the government refused to fix, but that it is a significantly better bill than seemed possible a few years ago owes much to the hundreds of thousands of Canadians that spoke out on copyright.