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    C-32 Posts

    Copyright Is Back: Why Canada is Keeping the Flawed Digital Lock Rules

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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.


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    Behind the Scenes of Bill C-32: Music Copyright Collectives Say Digital Locks Won't Increase Revenue

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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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    Behind the Scenes of Bill C-32: The Committee Submissions

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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:


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    Copyright is Back as Bill To Be Tabled on Thursday

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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.

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    Behind the Scenes of Bill C-32: Govt's Clause-By-Clause Analysis Raises Constitutional Questions

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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.


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    Behind the Scenes of Bill C-32: The Complete Ministerial Q & A

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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):

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    Government to Reintroduce Bill C-32 "In Exactly the Same Form"

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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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    The Cabinet Shuffle: Why a New Industry Minister May Not Mean Changed Policies or Big Delays

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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.


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    Del Mastro Says Bill C-32 Coming Back Intact

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    Wednesday May 18, 2011
    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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    Restrictive Copyright Plays Into Music Industry Myths

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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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