With reports that a new copyright bill could be introduced this week, thousands of Canadians have been expressing concern with the government's plans, as there are mounting fears that the results from last summer's copyright consultation may be shelved in favour of a repeat of the much-criticized Bill C-61.
The foundational principle behind C-61 was the primacy of digital locks. When a digital lock (often referred to as digital rights management or technological protection measure) is used - to control copying, access or stifle competition - the lock supersedes virtually all other rights. The fight over the issue has pitted the tech-savvy Industry Minister Tony Clement, who has reportedly argued for a flexible implementation, against Canadian Heritage Minister James Moore, who has adopted what many view as an out-of-touch approach that would bring back the digital lock provisions virtually unchanged.
Moore has declined to comment on his position, but his approach raises some difficult questions:
1. Moore has been an outspoken critic of the extension of the private copying levy to iPods, deriding it as the iTax. He is content to leave the levy on blank CDs in place, yet the forthcoming bill is likely to block personal copying of consumer purchased CDs that contain copy-controls onto blank CDs. Why does Moore believe it is acceptable for Canadians to pay twice - once for the CD and a second time for the levy on a blank CD - and still face the prospect of violating the law?
2. Thousands of Canadians buy DVDs from outside the country as they seek content not typically available at home. Yet DVDs purchased in Europe, Asia, or South America do not work on Canadian DVD players. The forthcoming bill is likely to block attempts to circumvent the region coding on DVDs and thereby stop Canadians from legally viewing DVDs they have purchased. Is this consistent with Moore's pro-consumer position in other areas?
3. Documentary film makers and visual artists often use small clips from DVDs in their art. The use of those works without permission is currently permitted through the criticism and review sections of the fair dealing provision in the Copyright Act. The forthcoming bill is likely to block unlocking a DVD to use such clips, however, since the presence of a digital lock will trump fair dealing. In fact, even the much-discussed potential introduction of new artists' exceptions for parody and satire would be limited by locks. What is Moore's plan to allow Canadian creators to complete their art?
4. The Canadian media regularly rely on the news reporting section of the fair dealing provision to use portions of audio or video without permission. The forthcoming bill is likely to render such activities violations of the law anytime a digital lock guards the audio or video. Does Moore believe this strikes a fair balance between copyright and freedom of the press?
5. With the emergence of the Amazon Kindle and Apple iPad, Canadian teachers and students are facing increasing pressure to switch to electronic books. E-books offer great potential, but also frequently come with restrictive digital locks that have been used to remotely delete content from users' devices in their own homes. Given the importance of the research and private study sections in the fair dealing provision, is Moore satisfied with an approach that would hamper the use of those sections for a critical part of the education process?
6. The new copyright bill is likely to reintroduce new exceptions that legalize recording television shows (time shifting) or moving purchased content from one format to another (format shifting). While consumers will undoubtedly welcome these long overdue reforms, they will likely be contingent on the absence of any digital locks. Does Moore fear the new rights will be regularly blocked by anti-copying technologies?
7. Is Moore aware that the solution to all of these concerns is a single provision that would allow Canada to implement the World Intellectual Property Organization's Internet treaties, provide legal protection for digital locks, and preserve the copyright balance by simply confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes?
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.
The National Post's Don Martin reports that the copyright bill could be introduced next week with confirmation of the broad outlines of the bill I reported on earlier this month. Martin, who, describes the forthcoming bill as heavy-handed, reports:
All signals suggest Heritage Minister James Moore has triumphed over the objections of Industry Minister Tony Clement, setting up Canada to march in excessively protected lockstep with a United States that boasts the toughest laws against pirated music or movies on the planet.
It may well be a legal constraint that's impossible to enforce, but the rumble out of the PMO suggests the new law will ignore the extensive public consultations that advocated a go-easy take on copying of CDs and DVDs in favour of robust anti-consumer limits on transferring or sharing content. If this comes to pass, the federal government will be headed for a very bad week when the House of Commons reconvenes on Tuesday.
While that is not how I would describe the outcome of the consultation - fair copyright is not the same as "go-easy" - Martin's report is wholly consistent with my earlier reporting that the PMO has sided with the out-of-touch Moore, who has emerged as a staunch advocate for a Canadian DMCA. While the bill will undoubtedly include some elements designed to garner support from consumer and education groups, the U.S.-style approach to digital locks will effectively undermine the current fair dealing provision and any additional user-oriented reforms that find their way into the bill.
Sara Bannerman has an important post that notes how the growing importance of electronic books has particularly implications for the forthcoming copyright bill. As devices such as the Kindle and iPad become increasingly popular, more and more people with purchase their books electronically with DRM included. As Bannerman notes:
For many books, and especially academic ones, the price for the ebook is the same (sometimes hundreds of dollars) as it was for the print edition. Canadians shouldn't live in a world of expiring and disappearing books. Consumers should have the right to use books the way they're used to doing - to buy them and have them for life, and to use them for years to come on future generations of devices.
Bannerman's concerns are highlighted in this video created at the Vancouver Film School, which recently won the school's award for public enlightenment. Note that most of the debate around copyright reform does not argue against the use of all DRM. Rather, it focuses on the need for balance in the implementation of legal protection for DRM, by arguing that existing exceptions (described by the Supreme Court of Canada as "user rights") should remain effective even where a publisher has implemented a restrictive DRM system.
Government House Leader Peter Van Loan announced yesterday that the government is imposing time allocation on the second reading debate on Bill C-11. That means debate on the bill should conclude on Friday and the bill will be sent to committee for further hearings and review. While the government's overuse of time allocation is a concern, sending C-11 to committee places the core issues on the table - will it amend the digital lock rules as so many are asking and/or will it cave to copyright lobby pressure and add SOPA-style amendments to the bill? Now is the time to speak out.Feb.08/12Comments (5)
Alexander Furnas explains
in the Atlantic why the broader implications of ACTA may make it as bad
as SOPA. Furnas notes "while many of the alarmists specific claims are
inaccurate, ACTA exposes the systemic danger in how international
intellectual property regulation has evolved over the last 20 years." Feb.07/12Comments (0)
Kris Kotarski writes an opinion
piece in the Calgary Herald that calls attention to the lobby panic
that leads to legislation like SOPA and ACTA.
Feb.07/12Comments (0)
The National Post featured an op-ed
from Jesse Kline
over the weekend that notes "the essential question that must be
addressed going forward is whether government regulation is needed to
protect industries that have failed to innovate." He says the answer is
no.
Feb.07/12Comments (3)
John Ibbitson discusses
the implications
for Canada of joining the Trans Pacific Partnership, noting it would
likely include surrendering Canadian sovereignty over copyright law. A
reminder that the government is currently consulting on the TPP.
Details on the agreement and participating here, here, and
here.
Feb.06/12Comments (0)
Open Media has launched a new
campaign
against copyright reforms that threaten digital rights including the
prospect of website blocking, Internet termination, and digital locks.
Feb.06/12Comments (0)
AccessNow is maintaining an excellent
map
of the protests planned across the continent on February 11th, which
has been designated an international day of action against ACTA. The
issue has attracted mainstream media attention (eg. New
York Times) and questions
emerge about the likelihood the treaty will receive the necessary
approvals for ratification.
Feb.06/12Comments (0)
Entertainment software giant Ubisoft, who the Ontario government gave $263 million in
2009 to create 80 jobs per year over 10 years (or $328,750 per job),
has advised
its customers that its games may not work sometime this week due to its
reliance on digital locks and the migration of data servers. Feb.06/12Comments (4)
Last week Rogers advised
the CRTC that it plans to drop
Internet throttling for all customers by the end of the year. The
move was not unexpected given that its policy was an outlier
among all major Canadian ISPs. I'll have more to say on this
development soon.
Feb.06/12Comments (1)
