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The Copyright Costs of Joining the TPP: Extending Bill C-11 With More Digital Locks & Penalties

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Wednesday November 30, 2011
Coverage of the Canadian government's decision to seek entry into the Trans Pacific Partnership trade negotiations with the United States, Australia, and many other Asian and South American countries has  focused primarily on the potential impact on supply management systems in the dairy and other agricultural sectors. While some believe Canada will ask for an exemption for supply management (and some countries view Canada's entrance into the talks with skepticism), the potential impact of the TPP on Canadian intellectual property laws should not be overlooked.

Based on leaks of the current drafts of the TPP IP chapter, the agreement would overhaul Canadian copyright law far beyond what is contemplated in Bill C-11. In fact, the TPP would require even stricter digital lock rules, extend the term of copyright, restrict trade in parallel imports, and increase various infringement penalties. If Canada were to ratify the TPP, it would require another copyright bill to undo much of what the government is about to enact with Bill C-11. A recent study on the implications of the copyright provisions point to many concerns including:
  • extend the current term of copyright protection from the current Canadian law of life of the author plus an additional 50 years to life plus 70 years. The additional 20 years goes beyond international law requirements and has been widely criticized by many groups.
  • new digital lock rules that would increase penalties for circumvention and restrict the ability to create new digital lock exceptions. While Bill C-11 is far more restrictive than necessary to comply with the WIPO Internet treaties, it does include a mechanism to identify new exceptions.
  • new statutory damages provisions that could require the government to reverse the changes found in Bill C-11 that distinguish between commercial and non-commercial infringement.
  • new rights management information rules that would lower the standard for violation and extend the scope of prohibited activities.
  • new enforcement requirements that may require the disclosure of personal information without any privacy safeguards
  • new copyright criminalization requirements even in cases that "have no direct or indirect motivation of financial gain." The criminal provision also cover "aiding and abetting", which may be applied to Internet providers.
  • new ISP liability provisions that would require a notice-and-takedown system contrary to the approach established under Bill C-11
  • a new requirement to provide copyright owners with an exclusive right to block "parallel trade" of copyrighted works. This would stop the importation of a copyrighted work from one country where the good is voluntarily placed on the market to another country where the same good at the same price is unavailable. The Supreme Court of Canada looked specifically at these issues several years ago and rejected attempts to use copyright to stop such activities.
The concerns with the TPP do not stop with copyright. Proposed patent rules would alter the scope of what is patentable under Canadian law, extend patent terms, and create triple damage awards for patent infringements.

In short, the TPP would require a massive overhaul of Canadian intellectual property law, far beyond that envisioned by either Bill C-11 or even the Anti-Counterfeiting Trade Agreement. Given the government's insistence that Bill C-11 represents a balanced approach, one wonders how it views the TPP's IP provisions, which effectively involve the U.S. seeking to export restrictions not even found in its own domestic laws.
Comments (23)add comment

Brian said:

there's really no stopping it
One can easily see that the many-pronged approach at putting big business in charge of (the what/how/when/where of) IP is going to succeed eventually. They will continue to ramp up their efforts to restrict, absolutely, what we can and can't do, will never relent and will tire us all out until we succumb.

Corporate Government has got to stop and there really is only one way to stop it.
November 30, 2011

IamME said:

Corporate Government
The youth will never succumb. Perhaps in 100 years of communist-style indoctrination to such policies, they might make some headway. But in the short term all such legislation will do is push people further underground and encourage the use of anonymous Internet technologies.

Christ, they're spending more money and crippling the Internet to catch some 13-year-old somewhere downloading some song than they are on catching some sicko vying to violate that same 13-year-old. Sickening!!!...and certainly doesn't foster respect for copyright.

In the long run, I think the media industry will get exactly what it wants and only then will they realize, perhaps too late, it's not even close to what they need. Exactly the same scenario as what happened with Napster. In fighting Napster so hard, rather than embracing what people actually wanted, the music industry essentially created the entire on-line piracy phenomenon.

The TPP, C-11, DMCA, SOPA, etc are such innovation-killing technologies that in 10-20 year we'll be so far behind Europe (Who are actually forward thinking) and China (Who holds so much of the US debt that they just doesn't have to care what the US thinks) that all innovation here will be farmed out. It used to be that Canada's smartest and brightest often sought innovative and unique job opportunities in the US (Lovingly nicknamed the brain-drain). This will no longer be the case. We're going to be so locked down with copyright and patent law that innovation here will essentially be illegal. Canada and the US will be nothing more that blue-collar countries to the likes of Europe, Japan and China...where the REAL innovation is actually happening.
November 30, 2011

Crockett said:

Try this on for size ...
@IamME "...and certainly doesn't foster respect for copyright."

http://airlockalpha.com/node/8802/paramount-hit-with-lawsuit-from-375m-investor.html

It seems the movie studios are once again trying to steal, in the real hard currency sense, from their very own investors. This time it is coming back to bite them hard as investors are increasingly wary of continuing the relationship.

Is there any need to mention the hypocrisy involved here as they go hard after kids downloading poor quality screeners?

Respect for copyright? They blew that a long time ago, and they certainly haven't learned since.
November 30, 2011

Windows9 said:

Reading the B
(2) Paragraph 41.1(1)(b) does not apply to a person who offers services to the public or provides services for the purposes of circumventing a technological protection measure
if the person does so for the purpose of making the computer program and any other computer program interoperable.

Step 1:
Create linux player that can only play DVDs/CD's that have no DRM
Step 2:
...
Step 3: Profit!
November 30, 2011

AlB said:

Stupid policy + Supreme Court = chaos.
I suspect that at some point the government will mess up and create a real conflict with the constitution and the charter. The government will then be in a quandary of how to fix it with the courts refusing to prosecute.
November 30, 2011

Darryl said:

@windows9
Ha!, you display a common and unfortunate misunderstanding regarding the circumvention exception.

The section you state only applies to DRM on SOFTWARE, not on media and not on hardware. So if you have a DVD/CD playing software which was itself DRM protected, and you wanted to make it work with some other software, which the DRM was hindering, then you could break the DRM on the software for that purpose.

No where does it say anything about being able to break DRM on media, or for the purpose of accessing media.

November 30, 2011

Byte said:

Revolution!
The only way these things will be stopped is to have a revolution-at-the-polls. Do not vote Conservative, Liberal, or NDP. Right now we have too many Old People that don't care (or even: know) about these issues, but they form a massive traditional-party voting block. It might take 20 years, but eventually they will die off (this is more likely to happen than proportional representation, i.e. real democracy).

In the mean time all we can do is educate as many people as we can, and try to keep the consumer-side of these matters on the agenda.
November 30, 2011

Gregg said:

@ IamMe
"Christ, they're spending more money and crippling the Internet to catch some 13-year-old somewhere downloading some song than they are on catching some sicko vying to violate that same 13-year-old. Sickening!!!...and certainly doesn't foster respect for copyright."

Truer words never spoken.... what does it say about us as a species?
November 30, 2011

Windows9 said:

Re: Darryl
It be argued that a DVD with a simple menu at the beginning is software that contains media. If said DVD menu is preventing you from playing your DVD, circumventing the DRM to bypass the DVD menu could be considered fair use?

Lots of "software" comes in the form of DVD/CD. You could also create an image of your DVD/CD (Backup copy without circumventing DRM) and mount the image virtually. The medium is not the issue here, the binary source distribution and associated encrypted media is.
December 01, 2011

IamME said:

@Windows9
"Lots of "software" comes in the form of DVD/CD. You could also create an image of your DVD/CD (Backup copy without circumventing DRM) and mount the image virtually. The medium is not the issue here, the binary source distribution and associated encrypted media is."

That's not true, you actually have to remove the encryption to create the disk image.
December 01, 2011

IamME said:

...
...well, at least if you want a usable image.
December 01, 2011

Windows9 said:

December 01, 2011

Windows9 said:

@Windows9
Wait... reading the definition it say's it converts and copies the file... although that could depend on what syntax you are using for the command. It usually just copies the raw data.
December 01, 2011

IamME said:

dd
I wasn't thinking Linux tools since DVD playback on Linux will inherently be illegal. But does the image work on a Windows box? I suppose there's no reason it shouldn't, as long as you used a legal player to play the images, you'd be completely above the board, so to speak.

Of course, it's not interoperable and, while created under Unix/Linux, it's still illegal to play on a Linux box, because the encryption would still have to be compromised using something like DeCSS.

Good to know though...thanks for the tip.
December 01, 2011

IamME said:

...
Yes, it should do a bit-wise raw data copy, so the encryption and everything "should" come across intact...in theory. Worth a test.
December 01, 2011

Darryl said:

...
Actually guys, the encryption key is stored on a sector which requires a special command to the player to read. It therefore will NOT be copied with the rest of the data using dd. So you will lose data doing a copy without also decrypting it.

Playing DVD/CD will not inherently be illegal on Linux, any more than it is inherently illegal on Windows. Licensed closed source players are available for Linux just as unlicensed players are available for windows.

Don't get distracted by all that interoperability stuff in the bill. That only applies to making SOFTWARE interoperable. For example it would be perfectly legal to reverse engineer skype and build your own interface software which bypasses any DRMed API they might have. The same is not true for media, so using the same example if skype started broadcasting songs or concerts, you would be able to hack any DRM which was preventing your software from interacting with their software, but any DRM on the content they are transferring would still be legally protected from your tampering.
December 01, 2011

Windows9 said:

@IamME
"since DVD playback on Linux will inherently be illegal."

0.o ... my DVD player runs on a stripped down linux =*(

"it's still illegal to play on a Linux box, because the encryption would still have to be compromised using something like DeCSS."

That's a little sensationalist. Decryption for playback is not a circumvention of DRM.
December 01, 2011

Windows9 said:

@Darryl
You are right, some media would be physically prevented from transferring the encryption key to an iso file. But there are other utilities that could extract that encryption key so that you could store it with your image for future viewing. This should fall under fair use.

What concerns me is everyone's use of the word "software". The bill says "computer program", which is a sequence of instructions written to perform a specified task with a computer (http://en.wikipedia.org/wiki/Computer_program). This is a vast simplification, but, media playback is a function that receives it's instructions from the media itself.
December 01, 2011

IamME said:

@Windows9
"That's a little sensationalist. Decryption for playback is not a circumvention of DRM."

CSS, is a licensed technology. If you're not paying the license fee for the right to legally decrypt, you'll be on the wrong side of the law, like DeCSS. As Darryl clarifies, there are legal tools you can buy for playing DVDs under Linux.
December 01, 2011

Windows9 said:

@IamME
That is my point. CSS is not an interoperable "computer program" (set of instructions).

Could an argument then be made that it is legal to offer a decryption service for a media player that does not play CSS media?

The decryption service would have to license the technology... and some service might just put their own DRM onto the media and you can use that on their devises (think Apple, Microsoft and Google tablet media issues 2-10 years from now).
December 01, 2011

Olier Raby said:

Teacher
Someone wrote a paper on how the Big Six publishing groups coat their throats by pushing for DRM. Amazon uses this "feature" to lock users within the Kindle Universe, de facto excluding any competitor. Since the ebook market is gaining more and more popularity, they are loosing that market.

http://www.antipope.org/charlie/blog-static/2011/11/cutting-their-own-throats.html
December 01, 2011

CopyCat said:

why not copy like it was done when i was a kid ?
i never understood why people try to work around DRM and all these things when you can just plug the output of a Blu-ray or DVD player into a computer via HDMI, Svideo, component, etc, and simply record the incoming feed ... why make it complicated ??
January 06, 2012

anon said:

Bad guys losing because they're bad is a fairy tale.
"The youth will never succumb. Perhaps in 100 years of communist-style indoctrination to such policies, they might make some headway. But in the short term all such legislation will do is push people further underground and encourage the use of anonymous Internet technologies. "

I was in (U.S.) college not too long ago, and there were students in my dorm that hadn't heard of Napster. Being non-techies and young when Napster was popular, they had apparently grown up hearing only the RIAA's mantra of moral rectitude being the purchase of their products. It was one of those topics, like racism, of which they had very weak understandings but had memorized firmly-voiced words. It's very much my hope that their refusing to think or talk about certain ideas was a matter of fear rather than complete ignorance. Either way, I hope they do not typify the current college generation.
January 17, 2012

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