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Thursday September 29, 2011 |
Later today, the government will table Bill C-11, the latest iteration
of the Canadian copyright reform bill that mirrors the previous Bill
C-32. It was widely reported
this fall that the government would reintroduce the previous bill
unchanged, re-start committee hearings where they left off in
March (with prior witnesses not asked to return), and move to quickly
get the bill passed by the end of the calendar year. That seems to be
what is happening with today's tabling and a new legislative committee
to follow.
Assuming it is the same bill, the government's
talking points remain relevant as does its clause-by-clause
analysis, both of which I obtained under Access to
Information. From
"Radical Extremism" to "Balanced Copyright": Canadian Copyright and the
Digital Agenda,
the book that I edited on Bill C-32 that includes contributions from 19
leading copyright experts from across Canada, is still useful and is
available from Irwin Law in paper or as a Creative
Commons licensed download. For those looking for background
information on key elements of the bill, there is my initial
analysis, a five-part series on the C-32's digital lock provisions
in a single
PDF, a lengthy
post on C-32's fair dealing reforms, data on the effectiveness
of the ISP provisions, and a post that puts statutory
damages into perspective.
When Bill C-32 was introduced in June 2010, I described it as "flawed but
fixable",
noting that there was a lot to like in the bill but that the digital
lock provisions constituted a glaring problem that undermined much of
the attempt to strike a balance. Months later, those remain my views.
The bill has some good provisions, but the unwillingness to budge on
digital locks - even as the U.S. has created new exceptions - is easily
its biggest flaw.
Read More ...
In trying to understand the government's copyright strategy, it
increasingly apparent that this is really an omnibus copyright bill
that combines two bills: the Copyright Modernization Act
together with the Reduce U.S. Pressure Copyright Act. The Copyright
Modernization Act portion is a reasonably balanced piece of
legislation that seeks to strike a compromise on many key issues:
- on fair dealing, it adds education, parody, and satire as
categories. This isn't as far as the government could (or should) go in
creating a flexible fair dealing provision, but the government deserves
credit for sticking by the fair dealing reforms in the face of a
relentless misinformation campaign by publishers and copyright
collectives.
- on education, it creates several limited new exceptions, that
arguably are too limited, but still mark an improvement over the
current act.
- on consumer rights, it creates important new exceptions for time
shifting, format shifting, and backup copies. Those exceptions are
undermined, however, by the digital lock rules.
- on Internet providers, it creates a notice-and-notice system,
which has proven effective and will require active cooperation from
ISPs to deal with allegations of infringement on their networks.
- on creativity, it establishes the new remix provision that
protects individuals who create their own non-commercial mashups
- on enforcement, it distinguishes between commercial and
non-commercial infringement for the purposes of statutory damages
(which will not stop Hurt Locker-style lawsuits) and establishes new
powers to target websites that enable infringement (despite the fact
that CRIA has an ongoing lawsuit against isoHunt using current Canadian
law).
While my copyright bill would look somewhat different, the same can be
said for virtually all stakeholders and interested parties. Perhaps
that is a sign of a compromise copyright bill.
On the other hand, a portion of this bill might be described as the
Reduce U.S. Pressure Copyright Act. This part of the bill contains the
digital lock provisions, which are amongst the most restrictive in the
world. As the government's own clause-by-clause
analysis of the bill states, these provisions apply even when there
is not "an infringement of copyright and the defences to
infringement of copyright are not defences to these prohibitions." It
is worth noting that:
- the government admitted
at the C-32 legislative committee that the digital lock rules trump
education rights
- the digital lock rules extend far beyond
those required for compliance with the WIPO Internet treaties
- many of our trading partners, including New Zealand and
Switzerland, have adopted more balanced digital lock rules
- Canada itself proposed a more balanced
approach in Bill C-60, a prior copyright bill
- even the U.S. offers more flexibility than Canada, with an exception
for DVD circumvention in some circumstances and a mandatory review of
the digital lock rules every three years
- concerns over digital locks was the top issue
raised during the 2009 national copyright consultation and in the
submissions to the Bill C-32 legislative committee. As noted
yesterday,
a wide range of large stakeholders, including virtually every education
group in Canada, consumer groups, and technology companies all support
compromise language
- creator groups such as the Documentary Organization of Canada
have called for compromise language on digital locks
- Canadian copyright collectives have expressed
doubt
about the benefits of digital lock rules. For example, CMRRA and SODRAC
told the C-32 committee in their submission that "these measures would
be unlikely to result in any substantial increase
at all in legitimate online revenues for the music industry."
So why is Canada sticking to digital lock rules when a more balanced
approach that is consistent with the WIPO Internet treaties is readily
available? The answer is obvious - the digital lock rules are
primarily about satisfying U.S. pressure, not Canadian public opinion.
The U.S. pressure on Canada is not a secret
with criticism
of past bills and regular
demands for action on copyright in return for progress on other
border and trade issues. Nor is the internal Canadian response:
- Prime Minister Harper personally
promised U.S. President George Bush in 2008 that Canada would pass
copyright reforms
- former Industry Minister Maxime Bernier raised
the possibility of leaking an advance copy of the copyright bill to the
U.S.
- former Industry Minister Tony Clement's copyright policy advisor encouraged
the U.S. to pressure Canada by elevating us on their piracy watch list
- former Canadian Heritage Minister Bev Oda caved to
U.S. pressure by enacting an anti-camcording bill despite departmental
analysis that no changes to the law were needed
- an official at the Privy Council Office leaked
the content of mandate letters for then-Ministers Prentice and Verner
- Canada participated
in a WTO complaint on copyright against China at the request of the
U.S. despite the inability to amass credible evidence of harm against
Canadian interests
After years of false starts, it is clear that this copyright bill will
pass, likely before the end of the year. While there is much to like in
the bill, the unwillingness to stand up for Canadians on digital locks
represents a huge failure. Moreover, it sends the message that when
pressed, Canada will cave. The Europeans have already figured that out
with their extensive intellectual property demands in the Canada - EU
Trade
Agreement and the U.S. will no doubt be back again, this time demanding
new IP enforcement rules not included in this bill. If global
intellectual property developments over the past two decades teach
anything, it is that efforts to reduce foreign pressures invariably
lead to a brief respite before escalating demands and political
pressures. The failure of C-11 is that the government isn't relieving
the copyright pressure. It is asking for more.
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Wednesday September 28, 2011 |
Two of Canada's largest music copyright collectives warned the Bill
C-32 committee against digital locks, arguing that it was unrealistic
to think that the implementation of digital lock rules would increase
music industry revenues. While there is much to take issue with in the
CMRRA
and SODRAC submission, the following is not among them:
Contrary to the government's public
statements, it is unrealistic to
expect that the other measures contained in Bill C-32 as initiatives to
implement the WIPO treaties would result in an increase in online music
revenues for authors and publishers and musical works that will be
sufficient to offset the revenue losses documented above. In fact,
these measures would be unlikely to result in any substantial increase
at all in legitimate online revenues for the music industry.
This can best be seen by comparing
the growth in sales of legal digital
downloads of music in Canada with the corresponding growth pattern in
the United States, where the WIPO treaties were implemented in 1998.
Apple's iTunes Music Store launched in Canada in December 2004, 18
months later than in the U.S. Since then, the rate of growth of online
sales in Canada has every year been much more rapid than in the United
States. Nielsen SoundScan data show that, between 2005 and 2010 the
sale of paid, legal downloads of individual songs or single tracks
increased by 914% in Canada, compared to 232% in the U.S. Digital album
sales increased 1207% in Canada, compared to 431% in the U.S.
As a result, CSI fundamentally
disagrees with the suggestion that the
"modernization" measures in Bill C-32 are in any way necessary in order
to improve the fortunes of the music industry.
I have been making the case for many years that Canadian digital music
sales have been growing faster than the U.S. It is good to see
that leading Canadian copyright collectives are paying attention.
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Wednesday September 28, 2011 |
The new copyright bill is scheduled to be introduced tomorrow
with the government planning to restart the copyright legislative
committee and pick up where it left off in March when the election call
killed Bill C-32 (talking points,
clause-by-clause
analysis
of the bill). Given the plans to restart the committee, it is worth
asking what the committee actually heard during months of hearings from
November 2010 to March 2011. There are obviously the transcripts of the
various hearings, but the detailed recommendations typically come from
direct submissions to the committee. Those have not been posted online,
but I did obtain copies of all unique submissions (there were hundreds
of letters from individuals) to the C-32 committee. Together with Diana
Cooper, a second year law student at the University of Ottawa, we
reviewed all unique submissions and tried to categorize their
recommendations.
Given the number of submissions, it should come as no surprise to find
that there is at least one group or person who criticizes every
proposed reform and at least one that supports it. In fact, this was
part of the plan. According to documents
obtained under the Access to Information Act, department officials
developed their committee witness list with a requirement that "at
least one witness will strongly support every provision in the Bill"
and a preference for witnesses "that have expressed an overall positive
view"(though it recognized some may have negative views on certain
aspects of the bill).
A full chart of the submissions is posted
below and available for download
here. There is also a second chart that tracks the submissions
based the specific provision available
here.
Digital locks are easily the top issue raised in the submissions with
many submissions calling on the government to ensure that digital locks
do not trump fair dealing or that the prohibition on circumvention
should be linked to infringement. In addition to many individuals,
group submissions supporting this position include:
Read More ...
- Council of Ministers of Education Canada (representing all
Ministers of Education outside Quebec)
- Documentary Organization of Canada
- Canadian Association of Research Libraries
- Canadian Association of University Teachers
- Canadian Civil Liberties Association
- Canadian Home and School Federation
- Canadian Library Association
- Canadian National Institute for the Blind
- Business Coalition for Balanced Copyright (which includes leading
telecom, retailer, and Internet companies)
- Canadian Association of Law Libraries
- Retail Council of Canada
- Canadian Council of Archives
- Canadian Federation for the Humanities and Social Sciences
- Canadian Federation of Students
- Canadian Teachers Federation
- Association of Canadian Community Colleges
- Association of Universities and Colleges of Canada
- Association pour l’avancement des sciences et des techniques de
la documentation (ASTED)
In other words, virtually every education group and provincial
education minister in Canada - along with major businesses and
retailers - have joined with librarians, archivists, and documentary
film makers to oppose the government's position on digital locks.
As for the many other submissions, a sampling of suggestions include:
- the music industry wants to remove the changes to statutory
damages but add discretion to lower damages to zero as well as give
courts the power to block websites
- Canadian Federation of Musicians want a graduated response system
for ISPs
- many creator groups want to eliminate fair dealing for education
and the user-generated content exception
- Project Gutenberg recommends creating a safe harbour provision
for orphan works
- COPIBEC wants to increase statutory damages
- SOCAN wants to eliminate the addition parody and satire for fair
dealing as well as limit the scope of ISP safe harbours with possible
joint liability with the copyright infringer
- Council of Ministers of Education Canada want to drop the
destruction of course materials requirement
- Entertainment Software Association of Canada wants to limit the
scope of interoperability exception
- Canadian Civil Liberties Association want amend the provision on
circumvention of digital locks for those with perceptual disabilities
by removing "not unduly impair"
- Canadian Federation for the Humanities and Social Sciences want
to eliminate crown copyright
- Canadian Teachers Federation want to include multiple copies for
classroom use under fair dealing for education
- CMRRA-SODRAC want strict limits on the backup copy provision
- Union des artistes want ISPs to compensate rights holders for
losses due to infringement
- Business Coalition for Balanced Copyright wants to ensure that
cloud computing and network PVR services should not be required to pay
additional copyright charges
This is obviously just a small sample of the submissions and their
positions. The charts provide greater detail on each submission.
How
the government treats all of these submissions remains the big unknown
since with a majority it is positioned to pass the bill in whatever
manner it sees fit.
C-32 Submissions by Organization
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Tuesday September 27, 2011 |
Copyright reform is back as the government has placed the copyright
reform bill on the notice
paper. It is scheduled to be introduced on Thursday,
alongside the privacy reform bill that also died with the March
election call.
c-32, copyright, privacy Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday September 27, 2011 |
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Tuesday September 27, 2011 |
Last week's behind the scenes of Bill C-32 post
focused on the
Ministerial
Q & A prepared for the joint appearance of Canadian
Heritage Minister James Moore and then-Industry Minister Tony Clement.
With the next copyright bill coming very soon - possibly this week -
today I am posting the more detailed
clause-by-clause
document [118 MB PDF] provided to the Ministers that reviews every
provision in the bill,
explains it rationale, and identifies changes to the current law.
There are few surprises here as the document
provides a
helpful analysis of the bill from the government's perspective. The
exhaustive review provides a striking reminder that the
government is extending liability under the Copyright Act for
activities that may not even infringe copyright, thereby raising
questions about the constitutionality of some provisions. This is the
result of the digital lock rules, which necessitated a change in
the infringement provision. The rationale notes (page 708):
The Bill introduces new causes of
action (such as those relating to TPMs and RMIs) that could be used in
civil lawsuits regardless of whether or not there has been an
infringement of copyright.
The discussion on the digital lock provisions also emphasize that the
defences to copyright infringement are not available for circumvention
of a digital lock (page 718):
Generally, an owner of copyright in a
work or other subject matter for which this prohibition has been
contrevened has the same remedies as if this were an infringement of
copyright (proposed s.41(2)). However, a contravention of this
prohibition is not an infringement of copyright and the defences to
infringement of copyright are not defences to these prohibitions.
The government's own words on the digital lock provision confirm that
they
may be unconstitutional since they fall outside the boundaries of
copyright.
Read More ...
The constitutionality of digital lock legislation has been
examined in two articles by Canadian law professors. Both conclude
that the provisions are constitutionally suspect if they do not contain
a clear link to conventional copyright law. Their reasoning is that
the constitution grants jurisdiction over copyright to the federal
government, but jurisdiction over property rights is a provincial
matter. Digital lock legislation that is consistent with existing
copyright law - ie. one that factors in existing exceptions - is more
clearly a matter of copyright. The C-32 provisions are arguably
far
more about property rights since the provisions may be contained in the
Copyright Act, but they are focused primarily on the rights associated
with personal property and expressly exclude copyright defences.
My colleague Jeremy deBeer conducted a detailed analysis of this issue
in his article, Constitutional
Jurisdiction over Paracopyright Laws. Many of his arguments were
echoed in a 2009
article
published in the Journal of Information Law and Technology by Professor
Emir Aly Crowne-Mohammed and Yonatan Rozenszajn, both from the
University of Windsor, which concluded that the anti-circumvention
provisions found in Bill C-61 were unconstitutional. The authors
argue
that the DRM provisions were "a poorly veiled attempt by the Government
to strengthen the contractual rights available to copyright owners, in
the guise of copyright reform and the implementation of Canada’s
international obligations."
The government's own analysis appears to confirm the constitutional
concerns as it points to reforms that expressly create liability even
in the absence of copyright infringement. The solution is an easy one
- by linking circumvention to actual copyright infringement (as
education, consumer groups, and technology companies have advocated),
the bill would more readily withstand a constitutional challenge.
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Wednesday September 21, 2011 |
With the House of Commons back in session this week, it should not take
long for copyright reform to reappear. Canadian Heritage Minister James
Moore has already indicated
the bill will be reintroduced unchanged from Bill C-32 and that the
legislative committee will pick up where it left off without the need
to hear from any persons or groups who appeared under Bill C-32. That
suggests things could move very quickly with a few sessions and a march
to passing the bill before the end of 2011.
My posts
in the months leading up to the bill gave some sense of what was likely
on the way and more recently I've written
on the Wikileaks cables that demonstrate the remarkable U.S. influence
over the Canadian copyright agenda. I've now obtained a series of
documents that provide some useful insights into the behind-the-scenes
work within the government and the C-32 legislative committee. While
access-to-information requests typically exclude information about
government bills, the death of Bill C-32 meant the information was fair
game. Over the next week, I plan daily posts of various documents
including the government's full clause-by-clause analysis, its C-32
committee witness strategy, and an analysis of the submissions provided
to the committee by dozens of groups and individuals.
The series starts with the complete question
and answer document
[15 MB PDF] prepared for Ministers Moore and Clement for their
committee appearance in November 2010 (Scribd
version embedded below).
The document covers a wide range of anticipated questions and the
official government response to each. The answers will not surprise as
anyone following the issue will have heard the Ministers and other MPs
repeat them regularly. Nevertheless, the more interesting scripted
responses to key questions include (with some context in square
brackets):
Read More ...
- C-32's consumer exceptions and
digital locks:
the response comes clean that the government is indeed adopting an
approach where digital locks trump consumer rights. The government
justifies its approach with the refrain that consumers can decide
whether or not they want to buy products with digital locks [which is
inaccurate for some students who are required to purchase
digitally-locked books for their courses].
- C-32 digital lock rules going
far beyond what is required by the WIPO Internet treaties: the
government does not dispute this and has no answer other than to say it
believes the bill represents good policy.
- C-32 digital lock rules and
permitting circumvention for non-infringing purposes:
the government does not have a direct response, choosing instead to
talk about protecting jobs and a limited number of exceptions. [The
response doesn't actually address why non-infringing purposes, which
mean the intended use is legal, shouldn't qualify for an exception.]
- C-32 digital locks rule
exceptions not in-line with U.S. exceptions:
the government response is that the Canadian market is different. [This
is correct, which is precisely why the DMCA approach on digital locks
is inappropriate. Moreover, the question fails to note that the
U.S.
permits circumvention of DVDs in some circumstances, whereas the Bill
c-32 did not.]
- Doesn't C-32 create exceptions
that mean "anything goes"?:
the government response notes that the overwhelming majority of
Canadians are law abiding and will follow the rules. [While this
response addresses exceptions, that view is precisely why the digital
lock rules - which presume that no one is law abiding and therefore the
lock trumps virtually all rights - gets it wrong.]
- The YouTube remix exception:
the government does a nice job explaining why it is needed and how it
features important built-in safeguards to prevent misuse.
[Interestingly, the government reiterates its view that Canadians are
law abiding here too.]
- Fair dealing for education:
the government response reiterates the reality that "fair dealing is
not a blank cheque" and is even broader in other countries
- The "book burning" provisions
that require the destruction of course materials after 30 days:
the government argues that destruction of materials "are an essential
part of the balance."
- Will the bill allow for suits
against individuals for large amounts like in the U.S.?: The
government says the bill is designed to ensure Canadians will not face
disproportionate penalties for infringement. [The Hurt Locker
lawsuits demonstate the bill does not go far enough in order to
achieve this objective.]
- Why has Canada caved to US
pressure?:
The government notes differences from U.S. law including one digital
lock exception, notice-and-notice for ISPs, and statutory damages
reform. [The Wikileaks cables obviously tell a much different story]
- Will C-32 get us off the US
Piracy Watch list?
The government gets this one exactly right - "Canada does not recognize
the validity of the Special 301 process and considers it to be flawed.
The Report does not employ a clear methodology in its country ranking,
as it relies on industry allegations rather than empirical evidence and
analysis."
- Do the C-32 exceptions meet the
Berne Convention requirements?: The government says yes.
Coming tomorrow: a 150 page clause-by-clause internal analysis of Bill
C-32, also obtained under Access to Information.
c32ministerqanda
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Friday September 09, 2011 |
Canadian Heritage Minister James Moore has told
the Canadian Press that the government plans to reintroduce Bill C-32
in "exactly the same form" as the legislation that died on the order
paper with the election call earlier this year. Moore suggested
that
the government plans to pick up where it left off with the same bill
and a legislative committee that will not call groups that appeared
during the last round of hearings. That suggests the bill will be on
the fast track as the committee heard from dozens of groups on Bill
C-32 over several months in late 2010 and early 2011.
Moore was also asked about the Wikileaks cables and the revelations of
Canada caving to U.S. pressure on digital lock rules. He argued
that elements of the bill run contrary to what the U.S. prefers. While
that is true with respect to ISP liability, that issue is seen as
secondary by the U.S., which is far more focused on digital
locks. On
digital locks, Bill C-32 was precisely what the U.S. was looking for
and contrary to what the government heard during its national copyright
consultation.
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Thursday May 19, 2011 |
Yesterday's cabinet shuffle sparked considerable discussion over the
implications for digital policy issues including the digital economy
strategy, telecom, copyright, and privacy (Reuters,
Globe,
Nowak).
The changes - which see James Moore remain at Canadian Heritage but
install Christian Paradis as the new Industry Minister - create a new
ministerial combination that is often tasked with jointly addressing
issues such as copyright and communications policy.
Tony Clement made digital policies a core part of his agenda both in
terms of prioritizing the issues and using technology to actively
communicate and interact with the public. Given the uncertainty of
Paradis' priorities and the need to become familiar with some complex
files, it is understandable that many speculate the cabinet shuffle
will slow the process of change and possibly alter the substance. I
must admit that I'm not so sure. Every minister has the chance to put
their own mark on departmental policies, but I suspect both the core
substance of Canadian digital policy and the speed of change will
remain largely unchanged.
Read More ...
On the substance, the experience of the past five years has been marked
by the central role of the Prime Minister on all key policy decisions.
On copyright, it was Prime Minister Harper that mandated the digital
lock approach in both Bills C-61 and C-32. On telecom, it was Harper
that shuffled Maxime Bernier out and Jim Prentice in to facilitate a
spectrum auction that was far more interventionist (set aside, roaming)
than Bernier wanted. On Internet access, it was the PMO - not Clement -
that first confirmed the desire for change on usage based
billing.
Looking ahead, the PMO will undoubtedly continue to be the key player
in digital policy. Paradis and Moore are obviously very important with
considerable ability to influence the specific details, but both will
ultimately be asked to ensure that the PMO's policy decisions are
enacted. Given that the Conservatives have already laid out some of
their plans here - reintroduction of C-32, the framework of the digital
economy strategy - big changes are unlikely.
On the timing, the election certainly delayed some initiatives (C-32
must start from scratch, the digital economy strategy was to have been
unveiled in early May), but I don't think the shuffle from Clement to
Paradis creates significant additional delays. While the files are
complicated, Prentice announced the government's spectrum policy within
a couple months of becoming Industry Minister and nearly tabled the
copyright bill a few weeks after that. Since a new copyright bill is
unlikely to be introduced in June, the summer months and early fall
will provide some time for Paradis to get up to speed. Similarly on
telecom, the government delayed its decision on foreign ownership last
year and a policy announcement in the fall remains a possibility (and
would not have come any faster had Clement remained Industry Minister).
There are several other hot regulatory issues - usage based billing,
vertical integration, and the extension of the private copying levy to
memory cards - but since these are before the CRTC or Copyright Board,
the government may wait for those processes to run their course before
taking any further action.
It is also worth noting that the cabinet shuffle also included two
other changes that will impact copyright policy: John Baird was named
Foreign Affairs Minister and Ed Fast was named International Trade
Minister. As I've discussed
before,
trade policy will be the primary driving force behind IP reform and it
will be up to Baird to deal with trade partners and Fast to preserve
Canadian interests as part of the various trade negotiations. Both are
critically important roles, but much like Industry and Heritage, the
high level policy decisions will ultimately come from the PMO.
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Wednesday May 18, 2011 |
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Consistent with the Conservative campaign platform, MP Dean Del Mastro tells
the Toronto Sun that Bill C-32 will be reintroduced largely intact.
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Tuesday May 17, 2011 |
Dwayne Winseck's Globe column
dissects the music industry claims and find that the total industry has
grown over the last 13 years. Winseck links the claims to copyright
reform, concluding that "only once the myth that the music industry is
in peril, and that it is the canary in the coalshaft for all media, is
discarded will we get copyright laws fit for these digital times."
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