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Canadian Government Has Consulted on Copyright but Won't Consider How Its Law Will Be Enforced

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Thursday February 09, 2012
The government imposed time allocation yesterday on Bill C-11, a move that will wrap up second reading debate on the copyright reform bill on Friday and send it to the Bill C-11 committee soon thereafter. While the government's overuse of time allocation is certainly a concern, the debate is not over and several well coordinated tweets of support hardly mask the huge public concern with the bill's digital lock rules and proposed SOPA-style amendments proposed by several copyright lobby groups that has generated tens of thousands of emails to MPs in recent days. As described further below, the opposition stems from rules that will have an impact on the legitimate activities of millions, creating barriers to creators, students, journalists, researchers, and the visually impaired.

During yesterday's debate, several Conservative MPs emphasized that the copyright bill is one of the most consulted pieces of legislation in recent memory.  For example, Canadian Heritage Minister James Moore stated "this is my 12th year as a member of Parliament and I can tell her that except for the Liberal government's Bill C-2, the response to 9/11, this legislation will have had more consideration at a stand-alone legislative committee and parliamentary and public consideration with all of the tens of thousands of submissions we received from Canadians in person and in writing and the consultations we did across the country before we drafted the bill."

The government is right when it says there has been wide consultation (a recap of the 2009 copyright consultation here). The question is whether it has taken the public comments into account and conducted a full analysis of the implications of its current proposal. There is reason to believe that it has not.

Last month, the Hill Times ran a policy briefing focused on copyright and new media that featured an interview with Industry Minister Christian Paradis on Bill C-11. The interview included a particularly notable exchange on Conservative MP Lee Richardson's comment that Canadians need not be concerned by the digital lock rules since lawsuits are unlikely to follow:

Q.    Liberal MP Geoff Regan said during debate of Bill C-11 that “government members have apparently been saying that it would be okay to break the new law and to circumvent digital locks. The member for Calgary Centre wrote: ‘If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a lawsuit against the consumer, due to legal fees and time involved.’ In other words, he is suggesting not to worry about this, that the law can be broken and nothing would happen, that really we are encouraging consumers to break the law. What does that say about the Conservatives’ position, that they are telling Canadians to break this law that they have not passed yet?” What’s your response?

A.     “Like any country, Canada has laws that all citizens must respect and obey. Bill C-11 sets out the exclusive rights of creators, including musicians, with respect to their artistic creations. Enforcing these rights in a given instance, however, is a private legal matter on which the government cannot speculate.”

While governments often refrain from commenting on active litigation that is before the courts, they must surely anticipate the likely effects of their legislative proposals. Indeed, that is precisely what the government is doing when it repeatedly claims (as it did yesterday) that the bill "make Canada an attractive location for creators, innovators and investors."

In order to determine whether the digital lock rules found in Bill C-11 strike the right balance the government must speculate - typically described as anticipate or project - how it will be enforced. The overwhelming opposition to the current draft - which includes the opposition parties, business groups, retailers, artists groups, consumers, education associations, and thousands of Canadians - is based on analysis about how the rules as drafted will be enforced. After months of debate, there is no longer any question that the current draft goes far beyond international requirements. There is no question that the 2009 copyright consultation came out strongly against the approach in the current draft and there is no doubt that the majority of what the Bill C-32 committee heard was similarly critical of the digital lock rules. In recent days, the government has heard from over 50,000 Canadians repeating their concern with the proposed approach.

If Paradis and Canadian Heritage Minister James Moore have not speculated on how their digital lock rules could enforced, perhaps it is because they don't need to. They know - or ought to know - that the following scenarios are some of the possible outcomes:
  • a Canadian documentary film maker wants to use a video clip found in a commercial DVD within their film. The clip would qualify as fair dealing under the law. They circumvent the digital lock on the DVD in order to use the clip. When the film maker seeks to distribute the film or screen it at a film festival, they require insurance against infringement claims. They are unable to obtain the insurance - and therefore unable to distribute or screen their film - because the circumvention of the DVD lock (which include both access and copy controls) violated Canadian law. U.S. documentary film makers do not face the same restriction.
  • a television journalist wants to use a clip found on a DVD for a news report. The piece is a controversial one and is reviewed by a lawyer. The lawyer refuses to approve the use of the clip since it similarly requires circumvention of a DVD lock. While news reporting is a fair dealing category, the circumvention would still constitute infringement.
  • a Canadian media researcher plans a major new project that involves using a wide range of media clips. The researcher completes a full grant proposal to support the research. Before submitting the grant, they are required to sign an ethics document confirming that the research does not violate any Canadian laws. The researcher cannot sign the document and cannot apply for the grant since the circumvention would violate the Bill C-11 digital lock rules.
  • a B.C. school district opts for open source software for all workstations throughout local schools. The school licenses educational DVDs for classroom purposes. The licence includes a provision that the school will comply will all applicable copyright laws. The school cannot use the DVDs on the workstations without circumventing the DVD locks in violation of the law and licence.
  • a Canadian computer science researcher wants to circumvent digital locks on several computer programs for encryption research purposes. The researcher does not alert the owner of the programs, since the program owner has threatened other researchers who have tried to do the same thing with a lawsuit. The company follows up with a lawsuit against the Canadian researcher, noting that the researcher did not qualify for the encryption research exception in Bill C-11 by failing to provide advance notice of the circumvention.
  • a Canadian family receives a package of DVDs from relatives in Japan. The DVDs are region coded and will not play on a Canadian DVD player. They try to find a service that will circumvent the digital lock so they can view the movies. No local service will do it since the law prohibits circumvention services.
  • a non-profit group representing visually impaired Canadians offers services circumventing digital locks on electronic books to improve access for their members. A leading publisher threatens a lawsuit if the service continues, arguing that service unduly impairs the technological protection measure found on the e-book in violation of Bill C-11.
  • a privacy group is concerned with the surreptitious capture of personal information by consumer electronics companies. The group creates a software program that will circumvent the digital lock on the products to identify whether personal information is being collected. A leading consumer electronics company sues to block distribution of the product, arguing that the privacy exception does not apply where the service unduly impairs the technological protection measure.
These are not mere hypotheticals. A detailed review of the U.S. DMCA provisions - which are very similar to those found in Canada - has identified numerous examples where the law chilled freedom of expression and scientific research, jeopardized fair use, and impeded competition and innovation. Moreover, many involve situations where the user does not have the "choice" to not purchase a digitally-locked product, but rather find that the digital lock, when coupled with the Bill C-11 approach, impedes legitimate, legal activity. These examples are in addition to the many consumer rights - format shifting, time shifting, backup copies, etc. - which are all inapplicable anytime a digital lock is present.

This is precisely the kind of "speculation" that many groups have conducted in reaching the conclusion that the Bill C-11 digital lock rules do not strike the right balance. The proposed solution from virtually all the critics is not to dismiss legal protection for digital locks, but rather link protection to copyright infringement. That approach would solve all of the above scenarios. If enacted in its current form, the law will have an impact on the legitimate activities of millions and attempts to falsely assuage Canadians that these provisions are mostly innocuous is simply inaccurate.  
Comments (19)add comment

Ki said:

...
Good analysis. I expect it to be ignored or outright written off as propaganda by some, but there's no reason for the current way the TPM rules are written to protect copyright. And I have yet to here a satisfactory answer as to why they must be this way.

And it's nice to see that our government is not looking out for the rights of Canadians by not properly evaluating the effect of this new law on us. Totally makes their point of view seem much more valid.
February 09, 2012

TonyV said:

Other examples
Here is one:
-Government issues a contract to a world class signature architect who maintains the copyright of the design. Although the government requires an irrevocable licience of copyright the design is created in a modeling software with digital lock provisions. The government must pay the architect to deliver an un-locked version (as an unlocked one is out of contract) or be guilty of breaking the lock.
-A building owner buys a building management system that liciences the drivers in a way that only the original installer can update them (from an equipment change or upgrade). The owner being frustrated by the monopolistic relationship with the vendor hacks the control system to make it open to any vendor. The system had digital locks on each node (thousands of nodes in the system), with the statutory damages provision for each 'commercial' infringement puts the damages in the millions. The building owner settles with the vendor and looses all savings from going open source.
February 09, 2012

Windows8 said:

Next Canadian Election
I look forward to sitting at the voting booth all night while defacing by ballot... if this bill get's passed. I might leave work to show up early.
February 09, 2012

Crockett said:

...
One would hope the government would consider the public sentiment afforded by the push back from SOPA. While C-11 is not fully analogous to SOPA, it is obvious that the wish of increasing restrictions on consumers by the copyright industry is not something people willing to bear.

Canadians generally are not a very outspoken bunch, but if this law passes as is (or worse), coupled with the reluctance of the government to enforce these provisions, then copyright as a concept will just take another blow on the way to obscurity.
February 09, 2012

Chance said:

Staying The Same
Funny I found my way to this document after reading a 2010 article of yours about the lack of transparency and public knowledge in a brewing copyright bill of that time. How long will people stand for this?
February 09, 2012

info@WhyNotAskMe.org said:

Why not ask me!
There must be an end to rights group driven legislation. Their voices need to be muted and copyright legislation needs to be opened up to broad, democratic participation.

See the blog at WhyNotAskMe.org
February 09, 2012

Russell McOrmond said:

Locks on devices worse than locks on content..
Much of the harm discuss involve locks on content, but I believe the greater harm comes from the locks on devices. http://c11.ca/petition/ict

Once you allow someone other than the owner to have the keys, it is impossible to list out all the different types of abuses that are possible. Obviously the entity with the keys has the ability to violate the privacy and other security of the individual who is using the device.

I find it interesting that a government that has supporters uncomfortable with the mere registration of long guns is demonstrating such little respect for the legitimate property interests of technology owners.
February 09, 2012

Doog said:

SOPA
So, they haven't added the SOPA amendments yet, right? After the pushback from SOPA, what do you guys think the likely-hood is that they will actually add those amendments now, given that a) they added a time limit and b) SOPA caused huge public outcry. I get the feeling they might be trying to speed it up to prevent more amendments (and the kitchen sink), but I don't know much about the whole process.
February 09, 2012

Ki said:

...
Personally I think the chances of SOPA like things being added is small. But that doesn't mean we should stop hammering them about the current bill either due to the TPM protections.
February 09, 2012

Eric L. said:

Another one.
You buy a Windows 8 ARM device and must break the secure boot in order to install something else.
February 09, 2012

Rob Tiessen said:

all region DVD players
Will C-11 make it illegal to purchase or import all region DVD players?

When I read the proposed definition of circumvention in Section 41 of Bill C-11, I assume that means that all region DVD players won't be legal if C-11 passes with the current language. Is that a reasonable interpretation?
February 09, 2012

Byte said:

Matrix
EXT. - EUROPEAN STREET. MANY PROTESTERS HOLDING ANTI-ACTA SIGNS WALKING SHOUTING CHANTS

Agent Smith: You hear that Mr. Harper?... That is the sound of inevitability... It is the sound of copyright's death...

February 09, 2012

Mark said:

...
Rob: Yes. C-11 is extremely likely to make importing any all-region dvd players into Canada illegal, as well as outlawing the manufacturing or selling of such players here, since they can be used to circumvent technological protection measures that the publisher placed on the work to prevent unauthorized copying, which the bill specifically prohibits, and the narrow set of exemptions does not include personal or private use (the exemptions that do exist seem to be there to cover edge-cases that could easily arise with regards to security or safety, both personal and public). That said, there will probably be a black market for such all-region players, but, obviously, one will have to still break the law to get them.
February 09, 2012

rhill said:

...
Question:

If I transcribe the content (part or whole) of a digitally-locked video, can this be equated to breaking the lock (hence, a crime)?
February 10, 2012

Byte said:

Thought
Digital files are just one large number. If someone were to create a Hex2Dec program, where the entire file is transcribed to an ASCII text, containing just one number (comma separated) e.g.:

FFAF23B5A319 -> 281,127,683,466,009

What is important is that the whole file is nothing more but a human-readable integer.

Would distributing the file number to someone else be copyright infringement?
Would the receiver running Dec2Hex, reconstructing the original file, be committing copyright infringement?

Same for the Hex2DecCr / Dec2HexCr pair (Cr = Crypt) where a simple form of 'encryption' is used; every 2nd digit is transposed by 1 (9 becomes 0) e.g.

281,127,683,466,009 -> 291,228,693,567,019

PS: I just realized what the so-called "number stations" on the shortwave radio band were; they were early p2p networks between intelligence agencies had the computer equipment and swapped digital music files that way!
February 10, 2012

sevrin said:

retired
I'm a senior Canadian citizen behaved myself worked hard. i stream movies. never downloaded anything. during winter I'm housebound. I'm trying to look at the big picture where this could take us.i just want my Internet which i believe is my right.seems we are moving backwards on this. i don't want our children to leave us in a worse off world. I'll be out there protesting.
February 12, 2012

Napalm said:

...
@Byte: "I just realized what the so-called "number stations" on the shortwave radio band were".

LOL.

Now let's put it in reverse. If people start trading encrypted zip files, would any attempts by RIAA/MPIA to decrypt those files be infringements of the TPM provisions in C-11?
February 12, 2012

sevrin said:

retired
now I'm gonna watch the bfta awards on bbc1. i don't have a license and can't buy one. and if it's taken away from me?
February 12, 2012

phillipsjk said:

I have a sinki9ng feeling...
Bill C-3O is designed to help lay charges of "criminal copyright infringement" against prolific fileshares, regarless of if they make a profit or not.

It will become akin to pot growing, where on plant is not a big deal, but with 7 you face serious trafficing charges.

For criminal copyright infringement, a file shared between freinds won't meet the threshold. However, if hundreds download the file, you will face serious charges that involve longer jail-time than killing someone. Within weeks of passage of Bill C-30, every major ISP will be requested to save logs for such fishing expeditions.
February 20, 2012

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