Last week, I delivered an hour-long speech on copyright to the Canadian Federation of Students (the slides are here and posted below and a podcast is here).  Since the audio on the podcast version of the talk is poor, I want to reiterate my central message.  In the past, I have spoken frequently about the opportunity for Canada to make its own choices on copyright reform.  After highlighting the remarkable array of new developments for content creation, content sharing, and knowledge sharing, I have emphasized the need for copyright laws that look ahead, rather than behind.  In particular, I have pointed to the dangers associated with anti-circumvention legislation, to the need for more flexible fair dealing, to the desirability of eliminating crown copyright, and to the benefits of open access and open licensing.  I typically conclude by stating that this can be Canada's choice and that we must choose wisely.

This speech had a different conclusion, however.  Sometime over the next two or three weeks, Industry Minister Jim Prentice will rise in the House of Commons and introduce copyright reform legislation.  We can no longer speak of choices because those choices have already been made.  There is every indication (see the Globe's latest coverage) this legislation will be a complete sell-out to U.S. government and lobbyist demands.  The industry may be abandoning DRM, the evidence may show a correlation between file sharing and music purchasing, Statistics Canada may say that music industry profits are doing fine, Canadian musicians, filmmakers, and artists may warn against this copyright approach, and the reality may be that Canadian copyright law is stronger in some areas than U.S. law, yet none of that seems to matter.  In the current environment and with the current Ministers, politics trumps policy. 

The new Canadian legislation will likely mirror the DMCA with strong anti-circumvention legislation - far beyond what is needed to comply with the WIPO Internet treaties - and address none of the issues that concern millions of Canadians.  The Conservatives promise to eliminate the private copying levy will likely be abandoned.  There will be no flexible fair dealing.  No parody exception. No time shifting exception.  No device shifting exception.  No expanded backup provision. Nothing. 

The government will seemingly choose locks over learning, property over privacy, enforcement over education, (law)suits over security, lobbyists over librarians, and U.S. policy over a "Canadian-made" solution.  Once the bill is introduced, look for the government to put it on the fast track with limited opportunity for Canadians to appear before committees considering the bill. With a Canadian DMCA imminent, what matters now are voices. It will be up to those opposed to this law to make theirs heard.

Update: Many people have asked what they can do to make their voices heard on this issue. Last year, I posted 30 Things You Can Do about anti-circumvention legislation.  Many of those recommendations still apply, starting with a letter (letter, not email - no stamp required) to your Member of Parliament, the Ministers of Industry and Canadian Heritage, and the Prime Minister. 

  

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Appeared in the Toronto Star on November 19, 2007 as All I Want For Christmas Is a Legal TiVo

Appeared in the Tyee on November 20, 2007 as Slaves to TV Ads?

Michael Powell, the former Chair of the United States Federal Communications Commission, received his first TiVo, a popular personal video recorder (PVR), as a Christmas gift in 2002.  Within days, Powell gushed that the TiVo was "God's machine," predicting that it would have a transformative effect on how consumers watch television by allowing them to easily record programs, pause shows in real time, and quickly skip through unwanted commercials.

Years later, TiVo claims that its service is available in Canada, yet few retailers carry the product. In fact, notwithstanding the growing popularity of PVRs and the ubiquity of VCRs - the CRTC estimates that 700,000 Canadian households own a PVR and Statistics Canada reports that over 10 million households have video cassette recorders (VCR) - the absence of the TiVo is not the only difference between the U.S. and Canadian markets.  In the U.S., using TiVos and VCRs is clearly legal.  In Canada, it is not.

While it may come as news to many Canadians that they infringe copyright on daily basis, those involved in the industry are well aware of this state of the law.  The law includes a series of copying exceptions that cover research, private study, and criticism, however, there is nothing that clearly permits home recording of television programs.  Indeed, the delayed introduction of the TiVo or the Slingbox, another popular product that allows consumers to transfer their television programs over the Internet to their computer and which only entered the Canadian market last year, may stem in part from fears about the legal climate.

Ottawa has regularly introduced legislation demanded by lobby groups (new laws against camcording in movie theatres and Internet rebroadcasting have been passed over the past five years), yet nothing has been done to address the legality of commonplace, non-commercial activities that affects millions of Canadians.  

This stands in stark contrast to many of our leading trading partners, including the U.S., Australia, United Kingdom, and New Zealand, who have all passed or proposed legislation that removes the home television recording from the cloud of possible illegality.  For example, the U.S. Supreme Court addressed the issue in a case involving the legality of the Sony Betamax machine in 1984.  The court sided with Sony, who argued that recording television programs simply enabled users to shift the time when they watch the taped program.

The forthcoming copyright bill provides the ideal opportunity to remedy decades of inaction. Prime Minister Stephen Harpers's government should introduce a new personal network exception into the Copyright Act that would feature three main components.

First, a "time shifting" provision to grant Canadians the right to record television programming for personal, non-commercial purposes.  The exception would legalize what is already a common activity for millions of Canadians and might fuel new products and services from Canada's telecommunications and consumer electronics companies.

Second, a "format shifting" provision that would legalize the transfer of content from one format to another.  For example, it would expressly permit transferring music on a store-bought CD to an iPod or the transfer of video from a cable box to a personal computer.

Third, a modernized backup copy provision that would address today's consumer realities.  The law already permits the making of a single backup copy of a computer program, rightly recognizing that software programs are intangible products that are susceptible to loss. Today, digital data includes CDs, DVDs, and video games, which all suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional.  Modernizing the law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

Addressing these issues in the forthcoming copyright bill would be more than just good policy.  It would also be good politics, since voters will have little patience for special interest legislation that is geared toward placating U.S. lobby groups rather than considering their needs.  With a bill expected before the year is out, Canadians will soon learn whether Industry Minister Jim Prentice and Canadian Heritage Josée Verner plan to provide an early holiday gift to lobby groups or allow them to use their holiday gifts without fear of breaking the law.  

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

Dierdre McMurdy of the Ottawa Citizen confirms widespread speculation that a copyright bill is only a few weeks away.  The article notes the strong link between the bill and U.S. pressure with reports of meetings between U.S. Ambassador to Canada David Wilkins and both Industry Minister Jim Prentice and Canadian Heritage Minister Josee Verner.  That said, the article doesn't get it all right - Canada didn't sign ACTA (we only agreed to participate in the negotiations), Microsoft's move to Canada has more to do with U.S. immigration policy than Canadian IP law, and Wilkins typically (and misleadingly) claims Canada has the weakest copyright law in the G7, not the G8.

Update: Howard Knopf offers a baker's dozen reasons why Ambassador Wilkins' characterization of Canadian copyright law is wrong.