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    The End of Bill C-61

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    Wednesday September 03, 2008
    With every reason to believe that Canada will be in the midst of an election campaign by next week, Canwest runs a story on how an election call will kill Bill C-61. This raises at least two issues.  First, C-61 may dead but copyright reform Canada is still very much alive.  Regardless of who forms the next government, copyright will almost certainly be on the agenda. Indeed, Prentice is quoted as saying that he would like to be the Minister that sees it through.  I plan to complete the 61 Reforms to C-61 and C-61 in 61 Seconds projects since these same issues are obviously bound to return when the next copyright bill is introduced.

    Second, the election campaign provides an exceptionally important opportunity to speak out on copyright.  Over the past two months, the reaction to C-61 has overwhelmed many politicians.  Some have acknowledged that it was the top issue among constituent correspondence, others have held town hall meetings in response to local concerns, and yet others have sought to make it an election issue.  There are indications of some Conservative MPs expressing some misgivings about the bill.  Several Liberals have articulated their own copyright principles and committed to a public consultation and the NDP has remained the most vocal critic of C-61. 

    Raising the profile of copyright has required thousands of Canadians to pro-actively contact their elected representatives. Starting next week, those same representatives (and would-be representatives) will be seeking you out.  They will be knocking on doors, making phone calls, attending all-candidates meetings, and generally doing their best to convince voters that they will best represent their interests. I believe that this presents an exceptional opportunity to ask the question - where do you stand on important digital issues such as C-61 and Canadian copyright reform?  Does your local Conservative candidate support the reintroduction of Bill C-61 or would they work toward amendments before it returns?  Is your local Liberal candidate willing to commit to public consultations before the introduction of any new copyright bill?  Is your NDP or Green candidate firmly against the approach in C-61?  These are the questions (along with positions on net neutrality, telecom competition, broadband access, and privacy) that need to be asked again and again and again this fall.  Bill C-61 may be about to die, but the prospect of Canadian DMCA-like legislation remains very much alive.
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    61 Reforms to C-61, Day 41: ISP Notice and Notice - Mandatory Data Retention

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    Monday August 18, 2008
    One of Bill C-61's few good points is the notice-and-notice approach for Internet Service Provider liability. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization.  The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and experience indicates that many remove the infringing content (if indeed it is infringing) voluntarily.  If ISPs comply this approach, they qualify for a statutory safe harbour such that they will not face monetary damages (though they may be ordered to remove content).  Failure to comply with the approach can bring liability of up to $10,000 in statutory damages.

    This is the same approach that was proposed in Bill C-60 and that has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of the U.S. experience.  Studies have demonstrated that notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement.  While there may be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake.

    While the overall approach is a good one, there is some room for improvement.  First, as pointed out in the policy position on C-61 adopted by the British Columbia Civil Liberties Association, the approach creates new data retention requirements with no judicial oversight.  In order to qualify for the statutory safe harbour ISPs are required to retain customer data for six months from the time they receive the complaint (they retain for up to a year if the complainant launches a legal action).  While there is a need to retain some data for this system to work, six months is a long period of time -- shorter periods and some form of oversight should be considered.

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    Bell's PVR Legal Woes the Tip of the C-61 Iceberg

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    Monday August 18, 2008
    My weekly technology law column (Toronto Star version, homepage version) picks up on last week's story involving the Bell commercial touting a new digital video recorder that features an external hard drive permitting users to "record forever." The archiving functionality may sounds enticing, yet last week several media reports noted that Industry Minister Jim Prentice's Bill C-61 forbids Canadians from recording television programs for archival purposes. Indeed, the new "time shifting" provision in the Prentice bill contains at least a dozen restrictions that could leave consumers facing significant liability for those that fail to comply.  Innovative businesses do not fare much better as they will also be forced to shelve potential new services if the bill becomes law.  For example, Bill C-61 explicitly prohibits a network-based PVR that Telus has considered introducing into the Canadian market.  

    These restrictions leave Canadians trailing the United States, where consumers have enjoyed the legal right to time shift for more than two decades without the statutory restrictions that Prentice has proposed.  Moreover, earlier this month a U.S. court ruled that Cablevision, a leading cable provider, can legally offer its network-based PVR. While it is tempting to focus on the need to improve the bill's PVR provisions, the reality is that the spotlight on Bell's promotion highlights a pervasive problem within Bill C-61.  Surprisingly for a political party that typically promotes "market based solutions," the bill introduces a complex regulatory framework for everyday consumer activities and represents an unprecedented incursion into the property rights of millions of Canadians.  

    Just how far beyond restrictive television recording does Bill C-61 go?

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    61 Reforms to C-61, Day 40: TPMs - No Regular Review Process

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    Friday August 15, 2008
    The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences.  No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation.  The U.S. DMCA addresses this by establishing a flawed tri-annual review process.  The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.

    As bad as the U.S. system is, the proposed Canadian system under Bill C-61 is worse since there is no mandated review of the exceptions at all.  Instead, Canada gets a flexible process that will allow the government to consider new exceptions if and when it sees fit.  In other words, the same government that brought you the Canadian DMCA will decide if there is a need to add any exceptions. Section 41.2 (1) provides that:

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