Copyright Bill’s Fine Print Makes For a Disturbing Read

This morning I run a special column (Toronto Star version, Vancouver Sun version, Ottawa Citizen version, homepage version) on Bill C-61.  Based largely on my initial post, I note that 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.


  1. Computer security
    Hi Michael, I have a quick question for you regarding computer security.

    I must premise this by saying I have no understanding of law and find the way in which law documents are written to be very confusing.

    It’s my understanding from the bill that you can only break digital media locks if they pose a threat to your security. It then goes on to say that all tools that are used to break digital locks will become illegal.

    If somebody infects my computer with a virus and places a copyrighted digital lock on it. Is it illegal for me to remove the virus from my computer because using a tool to break the lock will now become illegal?

  2. dd if=/dev/zero of=/dev/sda
    The above command if provided from a Linux LiveCD would help to remove the virus… along with all partitions on your hard disk and your work (do not try it!!!). Then you can re-partition and format C:.

    But wait… Linux LiveCDs are illegal with the new Prentice bill!

  3. re: Tim’s question
    Virii , adware, and all other crapware etc – affects your computer and (typically) is installed without consent of the user.

    So lets assume a virus did place a copyrighted “digital lock” on an infected file. Removing the “digital lock” from an infected file (for the purpose of getting rid of the virus)would not be illegal because you did not consent it to be there in the first place.

    What is considered a “digital lock” ? Are all password breaking tools illegal now? As an IT admin, password breaking is part of the job…

  4. Dennis’s question
    The term is actually a ‘technological measure’, and is defined as:
    ‘any effective technology, device or component that, in the ordinary course of its operation, (a) controls access to a work … whose use is authorized by the copyright owner’.
    To circumvent a TM is defined as:
    ‘to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological measure, unless done with the authority of the copyright owner’

    There is no mention of you having to have consented to it being there in the first place. In fact, that’s rather the point – I’m sure no-one consents to TMs on content or devices they purchase.

    As for what is considered to be a TM – technically it doesn’t even have to be software-based. The plastic case of your router is a TM since it prevents you from accessing the router’s ROM chip with the firmware ‘in the ordinary course of its operation’.

  5. I am confused.
    The way I read section 41.1 says (briefly) you can not circumvent, perform services to circumvent, or make devices that circumvent. However, section 41.15 says 41.1 does not apply if you are doing those things (again briefly) to assess or correct any security flaws.

    I am not a lawyer and I do not have any experience with how the law is actually implemented. However, this seems to me exactly the opposite of the assertion that law end-runs its own exceptions. You can not have, use, or share these tools to do bad things but you can have, use, or share them if you do the few things that are allowed.

    I would really appreciate some clarification about how this would likely work in the real world.

  6. Jack Robinson says:

    Digital Disturbia
    Just sent the following e-mail outrage to my Ministry Mugwhumps under the auspices of Copyright for Canadians. Hope it inspires some ire:

    As a former journalist, computer literacy instructor and digital media developer… this bill, like many the current Harper government has attempted to steamroller through a badly divided, partisan Parliament… is not only offensive in it’s corporate-friendly intent… but represents yet another calculated erosion of Canadians’ Charter Rights.

    Not only would Minister Prentice’s draconian restrictions make the majority of Canadians liable to potential persecution and prosecution for utilizing technologies that have been freely available for decades… but create a Culture of Control that could strangle artistic creativity, knowledge-sharing and fundamental rights of personal ownership.

    But then… maybe that’s the Real Agenda, after all?

    P.S. While I haven’t read the entire text of Mr. Prentice’s cluster-bomb bill… just how will the 16% surtax on blank recording media we’ve been paying for the past 30 years be utilized… A Gigabyte Gestapo, perhaps?

  7. Fascist
    I never thought I would see the day that Canada would come up with such a fascist bill. This is a portent of very bad things to come if this bill survives the house. This is SO “corporations running the government” it would make Mussolini proud. A few quotes follow:

    “Fascism could better be called ‘corporatism’, for it is merely the merging of state power with corporate power.” — attributed to Benito Mussolini, the Italian dictator who “invented” fascism.

    Fascism is: “A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism.” — The 1983 American Heritage Dictionary.

    “The American fascist would prefer not to use violence. His method is to poison the channels of public information. With a fascist the problem is never how best to present the truth to the public but how best to use the news to deceive the public into giving the fascist and his group more money or more power.” — Vice President Henry Wallace, April 9, 1944.

  8. IFeelBetrayed says:

    More bad news
    Check out bill C51, things just keep getting worse.

    [ link ]

  9. Fascism, John B? It’
    1983 American Heritage Dictionary? Why that copy? Oh… never mind, I found out: “Definition of Fascism in the American Heritage Dictionary in 1983, before its publisher was acquired by a multinational corporation”

    Ri-i-i-i-i-ght… multinational corporations… and the boogeyman too!

    I guess the writers of that edition never saw the Canadian Human Rights Commission in action. Otherwise the “extreme right” reference would have seemed like a joke. Sorry, John B. Canada has had fascism for over 30 years.

  10. Chris Davenport says:

    Official info on C-61
    Any official government information that is published online about C-61 can be found here at LEGISINFO.

    Chris Davenport
    Editor, The ACTivist magazine

  11. Chris Davenport says:

    LEGISINFO on C-61
    Sorry, my link did not get included in the last post.
    Here it is:
    [ link ]

  12. Balance?
    When you have to pay 20,000 dollars or going to prison for innocent activities such as bypassing the region lock of legally purchased DVDs in order to enjoy your native country culture or copying your 4 years daughter’s favorite cartoon so that the original won’t be destroyed in a fact of days something is very wrong. In a civil country shouldn’t it be any punishment proportionate with the offence? Who in their right mind would call this “balance”?

  13. And no one to speak …
    Government in this country has been slowly moving in the same direction regardless of governing party. perhaps the old cliche about power corrupting applies. Or perhaps closer to Pastor Martin Niemöller’s famus poem. [ link ]…