Columns Archive

Copyright Bill’s Fine Print Makes For a Disturbing Read

Appeared in the Toronto Star on June 13, 2008 as Fine Print Reveals Troubling Details
Appeared in the Ottawa Citizen on June 13, 2008 as Fine Print Makes For Disturbing Reading
Appeared in the Vancouver Sun on June 13, 2008 as Copyright Bill's Fine Print a Disturbing Read

In 2004, the Supreme Court of Canada issued a landmark copyright decision in a battle between the Law Society of Upper Canada, the Ontario legal bar association, and CCH Canadian, a leading legal publisher.  The court was faced with a dispute over an old technology – photocopying in a law library – and in a unanimous decision it ruled that the underlying purpose of copyright law is to serve the public interest.  That interest, reasoned Chief Justice Beverly McLachlin, is best served by balancing both user rights and creator rights.

Yesterday Industry Minister Jim Prentice and Canadian Heritage Minister Josee Verner delivered what amounts to a stinging rebuke to the Supreme Court's copyright vision of public interest and balance.  After months of internal discussions (though precious little public consultation), the government unveiled its much-anticipated copyright reform bill.  

Casting aside the concerns of major business, education, and consumer groups, the bill seeks to dramatically tilt Canadian law toward greater enforcement and restrictions on the use of digital content, leading Liberal Industry critic Scott Brison to warn that it could result in a “police state.”

Prentice's strategy appears to have been to include a series of headline-grabbing provisions that would attract the support of the Canadian public and simultaneously mask rules that will reshape Canadians' rights over their personal property.  Accordingly, the bill includes a time shifting provision that legalizes recording of television programs, a private copying of music provision that allows consumers to copy music onto their iPods, and a format shifting provision that permits transferring content from analog to digital formats.

While those provisions sound attractive, Canadians would do well to read the fine print.  The new rules are subject to a host of limitations – Canadians can't retain recorded programs and backing up DVDs is not permitted – that lessen their attractiveness.

More worrisome are the “anti-circumvention provisions,” which undermine not only these new consumer rights but also hold the prospect of locking Canadians out of their own digital content. The law creates a blanket prohibition on picking the digital locks (often referred to as circumventing technological protection measures) that frequently accompany consumer products such as CDs, DVDs, and electronic books.  In other words, Canadians that seek to circumvent those products – even if the Copyright Act permits their intended use – will now violate the law.

While this sounds technical, circumvention is not uncommon.  Under the Prentice bill, transferring music from a copy-protected CD to an iPod could violate the law.  So too could efforts to play a region-coded DVD from a non-Canadian region or students' attempts to copy-and-paste content from some electronic books.

The bill includes a few limited circumvention exceptions for privacy, encryption research, interoperable computer programs, and security.  Yet the exceptions are largely illusory since the software programs needed to pick the digital lock in order to protect privacy or engage in research are banned. Canadians should therefore check the fine print again – the law suggests that they can protect their privacy, but renders the distribution of the tools to do so illegal.  

The need to read the fine print does not end there – a new statutory damage award of $500 for personal use infringement applies to music downloading that many believe is legal, while it does not cover uploading files onto peer-to-peer networks or even posting videos to YouTube.  Similarly, a provision designed to allow librarians to create digital copies for patrons suffers from an exception that requires the digital copy to self-destruct within five days, effectively turning librarians into digital locksmiths.  

Had Prentice and Verner respected the Supreme Court's emphasis on balance and the public interest, they could have easily avoided this one sided approach.  Canada's earlier copyright bill, which died on the order paper in 2005, along with the approach in countries such as New Zealand, have identified a more balanced framework that preserves user rights by only prohibiting circumvention where the underlying purpose is to infringe copyright.  That approach ensures that the law targets commercial piracy rather than consumer property.

Instead, their self-described “made in Canada” solution actually looks an awful lot like the much-criticized U.S. Digital Millennium Copyright Act.  Once Canadians read the fine print on this bill, many may demand that the government go back to the drawing board.  

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He created the Fair Copyright for Canada Facebook group that has over 42,000 members and advocates for balanced copyright reform.  He can reached at or online at


  1. Right on!
    Yes, keep the focus on the digital locks. I’m one of those people who has many import DVDs which are now technically going to be illegal. I have purchased many DVDs to copy to my iPod, a currently legal act, which will now be, retrospectively made illegal. Betrayal is too weak a word.

  2. Will the Liberals act on this?
    The Liberals have been demonstrating a penchant for complaining loudly about irrelevant nonsense while ignoring the real issues that seem inevitably to be couched as “confidence” votes… Will they vote against this bill? Will they bring the government down on this issue?

    …somehow I doubt it…

  3. This law makes time-shifting illegal in
    What’s is not being said is the law allow individuals to record a TV or radio program for time-shifting, yet it specifically disallows you to time-shift video or audio streamed over the Internet (if it is not also simultaneously broadcast on TV or radio).

    In ‘updating the law to catch up with the Internet’, as the Internet replaces TV and Radio, time shifting will become illegal.

  4. Keith Brown
    Another bill of goods has been sold to the lawmakers. Last year it was guaranteeing a penny rate to publishers on downloads (making any viable subscription service unviable.) Now somehow Ottawa has been sold on the merits of DRM.
    However the more the corporate fences go up, the more isolated music corporations will become. At some point their security barrier will be recognized as prison wall – with most of the interesting things in the world occurring on the outside.

  5. Bad DRM Policy
    Fight, fight, fight this overbearing legislation. Welcome to “Chinanada” were your rights are protected unless ‘big brother’ says they aren’t.

  6. Anonymous says:

    There is no way the entertainment providers will allow anything to be copied for free since like today, they have no control over where that copy goes. What I see happening is that everything will become locked so the consumers will be forced to buy multiple copies of content for multiple devices. Buy the music CD for their home stereo and buy the MP3’s for their iPods. TV shows will be locked so consumers will be forced to either be in front of the TV when all of their favorite shows air (which is practically impossible), or pay to watch the episodes on the internet (if that will even be possible), or wait until the season is over then pay an average of $50 to buy DVDs for each show season. For something you would only ever watch ONCE. I fear that it will become prohibitively difficult or expensive to follow my favorite TV shows. If this law and ACTA both happen, we might as well pack up our TVs, iPods, VCRs, DVD recorders, and PVRs and mail them to Jim Prentice since they will effectively be rendered useless.

  7. James Junkin Jr. says:

    if any one had bothered to ask
    As a professional composer and musician for over 20 years, with several CDs, film and TV credits, I always find it funny when I hear about copyright, p2p, CDs, DVDs or the music / film industry.

    It seems the people who are supposed to represent and protect me have never had my interests at heart, and have had opposing views to myself and just about every other musician I know.

    I’ve heard there is a “Canadian copyright levy on blank audio recording media” in Canada, yet I’ve never seen any of that.

    I’ve heard of court cases by the music industry where some poor p2p user has been bled for $$$, I’ve never seen any of that.

    Now the government wants to pull Canada into the dark ages instead of moving forward into the digital age.

    Who voted these people in?
    not me.

    Keep up the great work Mr. Geist

  8. Without High Speed Internet Services any
    Now if the law passes, please cut off your high speed internet link and remove all your DVD and CD copies.
    If the police comes to your home or your house, you could say “sorry, I do not have internet, so there is no way for me to make a copy, download music and movies. My computer is just for display. Also, I do not have any DVD, CD, DVD playes, CD players, cellphones, and ipods at all. That’s all!!”

  9. Action Item Needed
    I have sat back and watched as government has pretty much raped and pillaged as they please, bowing to the whims of special interest lobbyists and basically selling my rights to the highest bidders. I don’t want to do that anymore.

    So my big question is: what can I, as a concerned Canadian citizen do about it?

  10. crime
    i have down loaded over 80 (bought) cds to my Ipod. Come and arrest me.

  11. Personal Network Recorder
    I see there is an amendment for a personal network service in the Bill. I can’t tell what is being said about this though. Is this different than other media (like tape, or DVD)? Can I use the cloud to store my media?

  12. Laughable
    I wonder if the government REALLY knows what they\’re doing.
    They expected to pass this without anyone knowing? On top of that they really thought something like this would go without a fight? They really should have done their homework.
    This is one battle they won\’t win.

  13. Do these “anti-circumvention provisions” also mean that I can’t unlock my cell phone? So now not only will I have to pay more for service than in the USA but I won’t be able to buy a cheap SIM card from a US/international airport to use in my cell phone — because it is illegal for me to unlock it.

  14. Written by Mal on 2008-06-16 11:14:58

    “Do these “anti-circumvention provisions” also mean that I can’t unlock my cell phone”

    yes that’s exactly what they mean…also as far as the time-shifting goes..yes you can do it but you can’t keep that program on your pvr permanently…and you can’t lend any of your dvd’s or cd’s to anyone.

  15. tried and true
    Mark Pesce would argue that the net interprets censorship as damage and becomes increasingly adept at circumvention. All the canadian government is going to do by passing this law is make the “demand” for streaming media more viable. Forget backing up because you will be able to get it streamed straight to your device. This law came as a shock to me, but the more i think about it the funnier it gets. More than that its going to stimulate personal media output as the main form of entertainment for the masses. So the information they are trying to control will essentially become obsolete, and thats money out of there pockets. Its the special interest groups fault that they are losing money because they aren’t providing decent enough service as incentive for the people to buy there products. There lack of imagination has them screaming at the government for support, When really its the artist themselves who should be getting the $. So if you visit your favorite artists website and they have a product for sale that you want. buy it. If its in a store, download it, make copy’s and give them to your friends. 🙂

  16. More BS laws?
    All this results in is more criminals according to Canadian law. That’s all these bs laws ever achieve. People aren’t going to stop doing what they’re doing and there will always be ways of circumventing copy protection and other limits on the free exchange of data. As it is, most of us commit criminal acts everyday of our lives because of countless numbers of stupid bs laws. Just try reading the criminal code of canada, you can’t, you’ll be rendered retarded after the first couple of pages. Canada and the rest of the western world will soon realize that you can’t legislate everything to death. I’m just so sick of all this that I don’t even have the stomach to read any of this crap anymore. If things keep going the way they’re going now, in 50 years half the citizens in this country will be in prison. The U.S. is well on their way already. Welcome to communist Canada where the road to hell was paved with good intentions.

  17. Derek James From says:

    As an audio professional, I am reading the amendments to the copyright act with a lot of interest because it directly affects my profession. I must say that I find a lot of it as quite innocuous, but even in my limited experience, it seems very obviously to be formed under American economic pressures.

    But more than merely innocuous amendments, there are a few really dumb things in it too. Such as in s29.22 where it is said that you cannot make multiple copies of the same copyrighted material onto the same device. This does not reflect what has to occur in within the recording industry. If I were to test the quality of a 128kbps MP3 against the quality of a 192kbps MP3 on a single computer, it would be an infringement even if I own the CD that was used to make the MP3. That’s pretty bone-headed. Or am I reading this incorrectly . . . ?

    by there own policy pre election they said
    private copying for NON COMMERCIAL USE

    that is gone….

  19. says:

    p2p is marketing
    Kid ROCK gets it that p2p is nto about theft its about marketing…

    “I was telling kids – download it illegally, I don’t care,” he said. “I want you to hear my music so I can play live.”