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.
Following UBC's
announcement that it will not sign the Access Copyright model
licence, three additional universities have followed suit - Athabasca,
Windsor,
and Winnipeg.
The four universities demonstrate that the licence raises concerns in
all types of universites - big, medium, small and distance-focused.
May.22/12Comments (2)
Reports indicate
that the European Union is set to provide an 80 billion euro boost to
open access by making open access publishing the norm for its Horizon
2020 research program.
May.22/12Comments (0)
Romanian Prime Minister Victor Ponta says
his country will not ratify the Anti-Counterfeiting Trade Agreement
unless the European Parliament modifies the agreement. Since the EP
does not have the power to amend ACTA, that makes ratification unlikely.
May.22/12Comments (0)
Dozens of leading U.S. law professors have written
to the U.S. Senate Committee on Finance to express concern about the
lack of constitutional authority to approve the Anti-Counterfeiting
Trade Agreement without submitting it for Congressional approval. May.17/12Comments (0)
Harvard Professor Winston Hide has stepped
down from the editorial board of the prestigious Genomics journal
over the lack of open access. May.17/12Comments (0)
In addition to the UBC decision to not sign the Access Copyright model
licence, the Manitoba Library Association has added
its voice
in opposition to the agreement. Moreover, the Trent University Senate
has adopted a motion stating "that the Senate, in solidarity with the
CAUT, the CFS and dozens of other constituent and governing bodies,
reject this unfair and unreasonable AUCC-Access Copyright 'model
license' and instead affirm and abide by 'the right to fair and
reasonable access to copyrighted works for educational purposes.'"
May.16/12Comments (1)
The Globe's John Ibbitson has a column
that confirms much of the private speculation about lawful access,
namely that the bill is going nowhere so long as Vic Toews remains
public safety minister. This is consistent with the prevailing view
that Toews is so closely associated with the worst of the bill -
warrantless disclosure of subscriber information, new surveillance
technologies, and divisive us vs. them framing - that a change will be
needed for the bill to come back. Ibbitson focuses on the likelihood of
Parliament proroging before the bill is revamped and returns, yet
speculating on those issues is always difficult. What is certain
is
that lawful access will return at some point, meaning Canadians will
need to remain vigilant to ensure that any future bill addresses the myriad of
concerns associated with Bill C-30.
May.16/12Comments (2)
Conservative MP Dean Del Mastro offers up one of the oddest copyright
analogies during the C-11 debate, likening format shifting to socks
and shoes.
May.16/12Comments (12)
The Wall Streeet Journal's MarketWatch picks
up
on Canada's missing digital economy strategy, using the Penske File
framing to discuss the failure of Industry Minister Christian Paradis
to lead on the file.
May.16/12Comments (0)
