I attended yesterday's C-32 media lockup on behalf of the Toronto Star, who asked for a quick analysis piece of the bill. My column is posted below:
Copyright has long been viewed as one of the government's most difficult and least rewarding policy issues. It attracts passionate views from a wide range of stakeholders, including creators, consumers, businesses, and educators and is the source of significant political pressure from the United States. Opinions are so polarized that legislative reform is seemingly always the last resort that only comes after months of delays.
The latest chapter in the Canadian copyright saga unfolded yesterday as Industry Minister Tony Clement and Canadian Heritage James Moore tabled copyright reform legislation billed as providing both balance and a much-needed modernization of the law.
The bill will require careful study (suggestions that a quick set of summer hearings will provide an effective review should be summarily rejected) but the initial analysis is that there were some serious efforts to find compromise positions on many thorny copyright issues.
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Appeared in the Toronto Star on June 3, 2010 as Long-Awaited Copyright Reform Plan Flawed But Flexible
Copyright has long been viewed as one of the government's most difficult and least rewarding policy issues. It attracts passionate views from a wide range of stakeholders, including creators, consumers, businesses, and educators and is the source of significant political pressure from the United States. Opinions are so polarized that legislative reform is seemingly always the last resort that only comes after months of delays.
The latest chapter in the Canadian copyright saga unfolded yesterday as Industry Minister Tony Clement and Canadian Heritage James Moore tabled copyright reform legislation billed as providing both balance and a much-needed modernization of the law.
The bill will require careful study (suggestions that a quick set of summer hearings will provide an effective review should be summarily rejected) but the initial analysis is that there were some serious efforts to find compromise positions on many thorny copyright issues.
Unfortunately, the legal protection for digital locks - unquestionably the biggest and most controversial digital copyright issue - is the one area where there is no compromise. Despite a national copyright consultation that soundly rejected inflexible protections for digital locks on CDs, DVDs, e-books, and other devices, the government has caved to U.S. pressure and brought back rules that mirror those found in the United States. These rules limit more than just copying as they can also block Canadian consumers from even using products they have purchased.
Bill C-32, which ironically carries the same number as the last time Canada underwent major copyright reforms in 1997, features three types of provisions: sector-specific reforms, compromise provisions, and the no-compromise digital lock rules.
The sector-specific reforms are designed to address a single constituency or stakeholder concern. These reforms include something for almost everyone: new rights for performers and photographers, a new exception for Canadian broadcasters, new liability for BitTorrent search services, as well as the legalization of common consumer activities such as recording television shows and transferring songs from a CD to an iPod. In fact, there is even a “YouTube” user-generated content remix exception that grants Canadians the right to create remixed work for non-commercial purposes under certain circumstances.
There are a number of areas where the government has worked toward a genuine compromise. This includes reform to Canada's fair dealing provision, which establishes when copyrighted works may be used without permission.
The government rejected both pleas for no changes as well as arguments for a flexible fair dealing that would have opened the door to courts adding exceptions to the current fair dealing categories of research, private study, news reporting, criticism, and review. Instead, it identified some specific new exceptions that assist creators (parody and satire), educators (education exception, education Internet exception), and consumers (time shifting, format shifting, backup copies).
The Internet provider liability similarly represent a compromise, as the government is sticking with a "notice-and-notice" system that requires providers to forward allegations of infringement to subscribers. The system is costly for the providers, but has proven successful in discouraging infringement.
It also compromised on the statutory damages rules that create the risk of multi-million dollar liability for cases of non-commercial infringement. The new rules reduce non-commercial liability to a range of $100 to $5,000, which is not insignificant but well below the $20,000 per infringement cap currently found in the law.
All these attempts at balance should be welcomed, yet they are undermined by the no-compromise position on digital locks.
The foundational principle of the new bill is that anytime a digital lock is used, it trumps virtually all other rights. This means that both the existing fair dealing rights and Bill C-32's new rights all cease to function effectively so long as the rights holder places a digital lock on their content or device. Moreover, the digital lock approach is not limited to fair dealing - library provisions include a requirement for digital copies to self-destruct within five days and distance learning teaching provisions require the destruction of course materials 30 days after the course concludes.
The government could have introduced a compromise provision that would have allowed for compliance with international treaties, protection for digital locks and the preservation of the copyright balance. In failing to strike that balance, the government has introduced a flawed, but potentially fixable bill.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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Given the public interest in copyright, it should come as little surprise to find intense media coverage of the introduction of the new copyright bill. While the government's emphasis was on balance, it is interesting to note that much of the discussion in the media focused on the impact of the digital lock provisions. Coverage includes:
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While there are critics of C-32, everyone should be willing to give props to Industry Minister Tony Clement for his tweeting on the bill. Soon after the usual press conference, Clement began responding directly to public tweets asking questions about the bill. He thanked the public for positive and negative feedback and answered questions on unlocking cellphones, format shifting CDs, copying DVDs, and statutory damages. This form of direct engagement with the public on government policy is something worth noting as it sets a benchmark for others to follow. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareThursday June 03, 2010 |
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Reaction from both the Liberals and NDP focus on C-32 digital lock provisions. Liberal critic Marc Garneau told CBC.ca that the bill seemed to be missing an exception that would allow people to break digital locks if it was for private, non-commercial use. Meanwhile, the NDP's Charlie Angus argued "the only rights you will get under this bill are those that U.S.-based entertainment concerns decide you get. If the technological protections override those rights, then you have no rights." Both MPs suggested that fast tracking the bill through summer hearings is not the right approach. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareThursday June 03, 2010 |
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