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A Week in the Life of the Canadian DMCA: Part Four

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Thursday June 19, 2008
The week in the life of the Canadian DMCA continues (day one, day two, day three) with Diane.

Diane, who is four years old, is a huge fan of  the popular TV character Dora the Explorer.  For her birthday, she received four Dora DVDs.  Given Diane’s habit of scratching them, her dad has begun to create backup versions.  That day, Diane brings home her kindergarten class photo, which was taken by a local photographer.  Josee digitizes the photo and sends a copy to Diane’s grandmother.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 does not allow users to make backup copies of DVDs.  The act of backing up the DVD is an infringement.  Moreover,  in order to make the backup copy, users must typically circumvent the copy-protection on the DVD, also an act of infringement.

For decades, Canadian copyright law has vested copyright in commissioned photographs – like school photographs – in the person who commissions the photo.  Bill C-61 reverses that practice so that copyright now belongs to the photographer. (repeal of Section 13.2) Assuming the photograph came with an all rights reserved restriction, the act of distributing the digitized photo to Diane’s grandmother now violates the law. (Section 29.21 (1)(e))
Comments (28)add comment

Nattt said:

...
This one hits home.... I know about Dora DVDs getting scratched. I want Prentice to explain to me the moral or ethical problem with producing such a backup for private use! I want him to explain to my three year old why it's wrong.

With the photo though, if it's work for hire, the school owns it, or if the school doesn't state that in their contract, the photographer would own it now? Work for hire being the old default? Either way, Diane doesn't own it. Either old law or new law, Diane is still copying a photo that the copyright doesn't belong to her. It's probably fair use though, but who can tell?
June 19, 2008

phoomp said:

re-purchase, silly consumer
Don't you know? We're supposed to re-purchase damaged DVDs and CDs.
June 19, 2008

WJM said:

...
Under the new law, it's only a fair use if the photographer says it is. Unlike most industrialized countries or even third world countries ח the new bill gives ownership of the CR to the photographer, without giving any rights to the commissioner or the subject of the photo.... other than rights which the photographer can immediately write out of existence by contract.

So much for "international practice".
June 20, 2008

Crosbie Fitch said:

Think it Through
Ultimately, you either have copyright law that prohibits copying of published works in order to create a commercial privilege for publishers, or you don't have such a law, and anyone can copy published works to their heart's content.

You can't have it both ways, and the industry knows this. There is no balance available. It is not possible to legitimise domestic copying if you wish to preserve copyright.

The cDMCA is about shoring up copyright, not balancing, compromising, or reforming it.

Copyright legislation will keep on being added to with ever more draconian enforcement measures until you get to the point at which the worm turns, i.e. the culturally repressed populace decides that enough is enough.

The moment you allow domestic copying is the moment copyright is finally recognised as completely emasculated and impotent. It's already ineffective at preventing copying, but it still at least has enough teeth to prosecute unwitting families in CRIA's educational campaigns (C-61 adds another row of sharper teeth).

So, at least understand why C-61 is the way it is, and that asking for the legalisation of domestic copying is like asking for copyright's abolition.

You will instead get facile pseudo-concessions, such as permission to make temporary, private copies of those things the copyright holder has not secured against such copying.
June 20, 2008

a guest said:

...
Section 13.2 has nothing to do with US pressure. Photographers have been after this change for years because the existing law is an anomaly. All the change does is put them in the same position as other freelancers. Like Natt says, copying photos is an infringement now, so nothing changes really. But not fair use/dealing because the school photo is meant to be purchased, not copied and given away. It's how the photographer gets paid. Sorry, bad example.
June 20, 2008

WJM said:

...
"It is not possible to legitimise domestic copying if you wish to preserve copyright."


Rubbish - most countries have already done this, providing a carve-out from infringement for use of commissioned photos by the subject or commissioner or giving the commissioner or subject the right to estop commercial use of the work.

C-61 takes the last remaining bit of such balance out of Canadian law. And, in fact, it puts photographers in a DIFFERENTLY anomolous situation, privileging them among creators by putting them in the position to contract away fair dealing. You can't do that if you write a book or a song or paint a picture, and you shouldn't be able to do that just because you're a photographer.

Photographs are different from other works, in that the information needed to determine their copyright status and copyright ownership almost never runs with the photo. The law has to recognize that, or it's bad law that will be honoured in the breach, eroding confidence in the law overall.
June 20, 2008

a guest said:

...
Sorry WJM, not sure what you mean. All the change will do is put photographers in the SAME position as writers, etc., by saying that they own their copyright. And they can't and won't be able to "contract away" fair dealing - that's not what current or proposed law says. Also, fair dealing usually involves only part of a work, not an entire work, which is what a photo is.
June 20, 2008

Freemor said:

Linux illegal?
This series has definitely gotten me thinking.. Not that I didn't dislike this bill from the start, but the way it is written it impacts so much more then my origional concerns. My current musings/concern fall along the lines that bill C-61 might make installing Linux on a computer that came pre-installed with windows (99.9% of them) illegal.

Linux has a more user centric approach to DRM then Windows does for example Vista complies (actually goes beyond complying) with the no-copying bit in HDTV streams, Linux does not as there is no legal compulsion to do so. see: [ link ] . So it could conceivably be argued that installing Linux is a form of "circumventing electronic locks" thus making it illegal.

I certainly am not a legal expert so I'd love to hear input from others more versed in this field then I. Are my concerns on this valid?

Cheers,
Freemor
June 20, 2008

a guest said:

...
as I read the Bill, circumvention requires a positive act, and simply using soiftware or an o/s that basically ignores electronic locks is not circumventing them
June 20, 2008

a guest said:

...
But one could argue that installing such software or o/s could be considered a positive act. This is where it can get messy.
June 20, 2008

Freemor said:

...
My concern was that the installation of Linux where Windows already exists might be seen as a positive act. (choosing Linux which ignores the locks over Windows which does not). Certainly if the machine came with Linux pre-installed I don't think there'd be a problem.
June 20, 2008

WJM said:

...
Anonymous person who doesn\'t have the courage of their convictions, read the bill. It will put the photographers in the same position as writers etc. as regards first ownership of copyright. But unlike writers or anyone else, photographers will be able to make the fair use of their work subject to agreement that signs that fair use away, just as the commissioner is almost always required, under the current law and standard practice, to sign away first ownership.

This is contained in the new provision 32.2(1)(f). Read it. Read the bill. Read it.

And no, fair dealing is not restricted to a part of a work in those circumstances where it is fair to reproduce the whole work. Sorry, photographs do not get such a magical exemption from fair dealing... at least not yet.
June 20, 2008

Xetheriel said:

Linux installs
First off, I am not a lawyer. Most of what I comment here is just my laymans interpretation of the current laws.

So...

Whether installing Linux would be considered a positive act would require knowledge of the *purpose* of installing Linux.

Scenario A:

I run windows media center to drive a home based PVR. Suddenly the broadcast flag is turned on, and Windows honours it, and refuses to record some of my favourite shows. Disgruntled, I install a Linux PVR distro onto my PVR so that I can circumvent the broadcast flag.

That would be considered infringing activity.

Scenario B:

I buy a new PC pre-loaded with windows media center, but, being a supporter of open technologies, I want to run linux instead. So I blow off windows and install a linux distro, and then set it up as a PVR.

This could not be considered infringing activity, as the primary *purpose* for installing it was not to circumvent the broadcast flag.

In a court of law, onus of proof for infringing activity is on the copyright holder. Thus, *if* a copyright holder got wind of you recording a show that was protected by the broadcast flag, and *if* they decided to sue you over this, they would still have to *prove* that you installed Linux with the INTENT to circumvent the flag and record the show. This is difficult, if not impossible, to prove, and chances are good that no judge in the world would award anything but *actual* damages in this kind of circumstance. (List price for a single episode that you recorded, plus potentially the plantiffs legal fees).

All told, it would not be worth it to pursue this kind of activity.

Concerns that Bill C-61 would make many activities in Linux illegal are well-founded, but the likely hood that a copyright holder would successfully sue you for any significant amount based on you running linux alone is very slim.

For the record, I'm a Linux user, and an adamant opposer of Bill C-61.
June 20, 2008

300baud said:

Not copy protected
DVDs are typically not copy-protected. Copy-protection involves crafting a slightly invalid disc that physically cannot be copied with consumer products. DVDs are merely access-controlled through the use of encryption. The encrypted data is not protected in any way. I think this is a *very* important distinction. If you do not break the lock, you are still protected by your rights. (What a horrible thing to have to say.)

For example, copying the VOB files off your DVD (which can be played in most media players) does not involve defeating any kind of protection.
June 20, 2008

Colin McInnes said:

DVD copy/access protection
"For example, copying the VOB files off your DVD (which can be played in most media players) does not involve defeating any kind of protection."

Playing those VOB files *does* break the lock.

But you bring up a good point. Commercial pirates don't decode DVDs, they copy the whole disc, usually because they stole the master from the factory in 3rd world countries. So average consumers are considered "bigger" criminals than actual pirates...

"Concerns that Bill C-61 would make many activities in Linux illegal are well-founded, but the likely hood that a copyright holder would successfully sue you for any significant amount based on you running linux alone is very slim."

The interview of Prentice asked about that. "Why bother with making these acts liable for damages, if you're claiming that the damages are too small for it to be worth the bother of actually suing people?" Of course, he flubbed his way to an un-related answer.
June 20, 2008

Freemor said:

DVD\'s are protected
In the majority of cases DVD's are copy protected with schemes like Sony's ARccos [ link ] and/or Macrovisions ACP [ link ] and others. So it is not possible to just do a direct copy to make a backup.
June 20, 2008

Ron said:

lawsuits
Xetheriel:

I believe there have already been copyright infringement cases in the States where courts have found for the record companies, without the companies having to prove how or when the copyright infringements took place. With precedents like that, I would not be so confident that having to prove intent would protect you.

Even then, it seems to me that the bill does not mention anything about intent - another glaring omission, perhaps - so I have to wonder if that would actually be a defense.

I can just see cases where people install Ubuntu and watch some DVDs, only to discover they've broken the law unknowingly. This bill really sucks.
June 20, 2008

a guest said:

Re: School Photos
Does that also mean that the photographer has the right to sell photos he/she takes of my kids or put them on the internet?
June 20, 2008

Kim Horne said:

Other Mediums
Michael: I'd love to know how 13.2 applies to other mediums, particularly body art. If I commission someone to design for me a tattoo, and it's applied to my own body, does this limit my ability to distribute photos of myself? Appear on television in a commercial capacity?
June 20, 2008

mHannon said:

...
"Does that also mean that the photographer has the right to sell photos he/she takes of my kids or put them on the internet?"

It was my assumption that this is exactly the intended action. It permits schools to build enormous databases of all children, including their photographs, without requiring any consent from parents nor any need to let them know when, where, how, or why that information is being retained or used, and by whom.

Australia is already implementing that system, Canada probably won't be far behind. Clearly having this legislation in beforehand will make it all much easier to pass.

Frankly, I think my kids own the rights to their own DNA. Taking a photograph of the physical manifestation of that DNA is an act of copying it. It devalues any of their own photographs they might take, and they should be the ones to control those cheap knockoffs by school photographers.

And, we will no longer permit any photographers to take any pictures without our written consent, and a full contract regarding ownership. If the photographer does no wish to comply, they have made their services irrelevant. It's law like this that requires contractual overrides before work is begun, and it becomes a barrier to trade.
June 20, 2008

300baud said:

DVD
Colin McInnes, playing the VOB files does not break the lock if you use a player with a licensed decoder. Then it simply unlocks it. Right?

Freemor, thanks for the correction.
June 20, 2008

300baud said:

Not completely convinced
ARccos has been discontinued. It was an oldskool bad sector style copy protection. But it violates the spec and cannot be played in all players. However, the filesystem does not include any of the bad sectors. You cannot make a perfect physical copy of the disc, but you can perfectly read the encoded data on the disc's filesystem without encountering any sort of protection. Again, as long as you are dealing with raw encrypted data and not transforming it in any way, it seems like you're within your rights to do so. Even if you write it to another medium, you could easily argue that you haven't even format-shifted it; it's still exactly the same encrypted data that it's always been, in the same format.

Macrovision depends on the video to be decoded and played back. The resulting output contains signals that macromedia-enabled hardware recognizes and refuses to copy. It does not affect reading the encrypted data in any way.

I still cannot see how a DVD's encrypted contents could possibly be copy protected. The physical disc, perhaps, but not what it contains. Not if it is to be played in a spec-compliant DVD player.
June 20, 2008

Xetheriel said:

Re: Lawsuits

To Ron:

In respect to US lawsuits, they have no bearing on Canadian Law. Canadian law does not borrow precedents from the US nor vice versa. Our laws are very different, and borrowing precedents would not work.

That said, the bill does mention intent, quite a bit actually... there are very specific clauses that work around whether the infringing activity was for "Personal Use" which is intent. If I made the copy with the *intention* of only using the copy on my own devices, its okay. If I made the copy with the *intention* of selling it for commercial gain, again, thats showing intention.

Proving intention is *VERY* important in copyright cases, because the laws are crafted to function in different ways depending on what you were doing when you infringed. Thats part of what makes copyright laws *SO* complicated.

To 300Baud:

DVD's are indeed copy-protected, albeit poorly, withing the definition stated in Bill C-61:

technological measureӔ means any effective technology, device or component that, in the
ordinary course of its operation,

(a) controls access to a work, to a performers performance fixed in a sound recording
or to a sound recording and whose use is authorized by the copyright owner; or

(b) restricts the doing җ with respect to a work, to a perform- ers performance fixed in
a sound recording or to a sound recording җ of any act referred to in section 3, 15 or 18
and any act for which remuneration is payable under section 19.

The CSS "protection" on DVD's was intended to control access to the work by authorized DVD players only. Copying the VOB files from the disk is still infringing activity, even if you didn't DeCSS them, because your still making a copy of a copyrighted work, and DVD's are not covered by any of the private copying provisions in C-61.

The simple answer is: You can't legally copy a DVD, for any reason.

X
June 20, 2008

Xetheriel said:

Re: Other Mediums

To Kim Horne:

The interesting thing to note about 13(2) is that it only *ever* applied to Engravings, Photographs and Portraits. There is no mention of any other medium. Which means the copyright to the image portrayed in your tattoo would belong to the artist that originally drew it, and it has always been that way. With that said, there would be some simple sanity rules on your usage of that image, because again, we get into *intent*.

If you post a picture of your tattoo on the internet, and rave about the artist that did it, the chances of you getting burned for it are slim to nil. Even commercial appearances, public photos, etc, if you had no infringing intent (ie: you obtained no commercial gain exclusively because of the image in your tattoo) then the chances of a lawsuit actually succeeding are so slim, it wouldn't be worth it to sue you over it.

On the other hand, if you got a tattoo, and then used an image of that tattoo to say... advertise for a different tattoo parlor, then that would be infringing. If *you* owned the tattoo parlor that used the image to advertise, or even provided the image for the purposes of advertising, then you could be up for some serious damages.

Copyright laws are so dodgy, that just about every case must be tried in court before any action can be taken. In most cases, its determined based on whether you actually *gained* from the infringing activity, or if you *intended* to infringe on the copyright.

All told, I wouldn't worry too much about things like tattoos because in most cases, you simply want them to show off to your friends and such. :)
June 20, 2008

Ron said:

lawsuits
Xetheriel:

I am aware that US cases would not have a *legal* bearing on Canadian law. However, since they are calling this the Canadian DMCA, I think looking at how the US has treated cases under the actual DMCA might be relevant to the discussion. I would like to not repeat their mistakes. Similar rulings might not necessarily be repeated here - but it seems naive to discount the possibility, given the similarities in the DMCA and bill C-61.

It also seems to me that the relevant part of the bill to what you were discussing in your original post is the part about circumventing technological measures that are meant to prevent copying. My understanding is that private copying for personal use is acceptable only if such measures are not present. If one has to circumvent a "digital lock", copying even for private use is not allowed.

Your point seemed to be that if someone didn't know they were circumventing a technological measure, for some reason they wouldn't be breaking the law? I don't see how ignorance could be a defense. It might be used as an argument for lower damages, but they still "circumvented a technological measure", whether they intended to or not, and the bill spells that out as clearly being illegal.
June 20, 2008

Xetheriel said:

lawsuits
Ron:

Your absolutely right in respect to the digital locks provision. Regardless of intent, if you break a digital lock in order to infringe on a copyright, then you are liable for damages. The question in Bill C-61 is... what *are* the damages. And thats where the intent comes into question.

If you broke the digital lock for commercial gain, you may be liable for statutory damages under section 38.1.

*but* if you broke the digital lock for personal use, check this out:

41.1(3) The owner of the copyright in a work, a performers performance fixed in a sound
recording or a sound recording in respect of which paragraph (1)(a) has been contravened
may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.

Which means that the owner of the copyright could only seek *actual* damages from the infringer. In order to elect for statutory damages, they would have to *prove* that you did it for commercial gain.

Now read this:

41.18 A court may reduce or remit the amount of damages it awards in the circumstances
described in subsection 41.1(1) if the defendant satisfies the court that the defendant
was not aware, and had no reasonable grounds to believe, that the defendantҒs acts constituted a contravention of that subsection.

Which means, that if you take scenario B, and you successfully defend it as such, the court could throw the whole case out. If you truely had no idea that the linux PVR software ignores the broadcast flag, and you went about your life believing that what you were doing was perfectly fine, you have a pretty good chance of winning that case.

Also, to those that care concerned about circumventing digital locks in order to simply *play* music or movies in Linux... you have nothing to worry about if your doing it for personal use:

A: Playing the music or movie is not infringing activity. Your not making a copy, your simply enjoying it in a reasonable way on the original media.

B: 41.1(3) removes statutory damages for personal use.

C: Section 42(3.1) states that even those fines do not apply to personal use.

With no infringement, there are no actual damages. With personal use, there are no statutory damages or fines for breaking a digital lock. I can't see any way in which a copyright owner could successfully sue you for simply playing a movie or audio CD in linux.

The same goes for playing DVD's on a region-free DVD player.

I could be wrong... I'm not a lawyer... but I'm pretty sure I'm right. I think a rights owner would have a *VERY* hard time making a case like this actually hold up in court.

X
June 20, 2008

march said:

total non sense
it's a non sense that i can't make a backup copy of a DVD i own a quick look at my dvd collection and i pick up "Mallrats" HD-DVD let me tell you
i've owned the VHS version. the DVD version, i'm now on HD-DVD version of it I'VE PAID THE COPYRIGHTS 3 TIMES AND NOW I CAN'T MAKE A BACKUP TO PROTECT MY INVESTMENT.

for region coded discs my main language is french so like many others i import mainly from europe dvds wich dvd producer's here doesn't put the french audio track on it. Now it's illegal to play a dvd i've legally bought(and paid copyrights) for my own private enjoyment.

sorry but like many peope i'll be a DMCA criminal
June 20, 2008

Anne said:

...
> All the change will do is put photographers in the SAME position as writers, etc.,

Ah but the devil in the details. And if this Bill became law and you hired a photographer to take pictures of you in your frilly undergarments for your boyfriend how would you feel if that "portrait" became a framed enlargement hanging on a gallery wall or, printed in a magazine/newspaper? There is nothing wrong with the law when it comes to domestic portraits, photographers are free to negotiate terms different than those set out by law and consumers are able to have some semblance of control over the use of their portraits. It's fair and reasonable.

The real question is if, as you say, portrait photographers already own the rights to the images they produce, why does the law need to be changed if it already works as intended?
June 24, 2008

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