The Unofficial Canadian DMCA Background Document

Multiple sources advise that Industry Minister Jim Prentice's current plan is to introduce the Canadian DMCA this week, likely on Wednesday.  While things could change, it would appear that Prentice's communication strategy is to do as little communicating as possible. Plans for a possible press conference have apparently been put on hold given concerns that the press might actually ask questions and Prentice has even entertained thoughts of shuffling the bill quickly to a committee for summer hearings so that he would not have to deal with the issue all summer long. The Minister will also head for Japan and South Korea late the following week as part of the OECD Future of the Internet Economy conference, so out-of-sight, out-of-mind.

What do we get instead?  Likely a press and MP briefing in a lockup just prior to the release of the bill, which will probably happen later in the afternoon (government bills are tabled after 3:00 on Wednesdays) to minimize the opportunity for critical comment in the immediate news cycle. While Prentice presumably hopes that this is a one-day story, my guess is that he is wrong.  There is no local open house this time round, but Prentice is planning his annual Calgary Stampede breakfast for July 5th.  Further, the OECD is inviting anyone to pose comments or questions about the Internet directly to the Minister on its YouTube page with the Ministers asked to react to the best videos at the OECD conference in South Korea.

Given the apparent effort to control the media spin, I thought it would be useful to anticipate the likely talking points in the Canadian DMCA backgrounder along with a broader perspective featuring things Prentice probably won't say.  These include: 

The bill is the result of extensive discussions with the Minister of Canadian Heritage to ensure that the Canadian approach strikes the right balance between protecting creators and ensuring appropriate access [in reality, the bill as drafted last December was only modestly amended to include a few user-oriented provisions such as time shifting.  As mandated by the U.S. and willingly followed by Prime Minister Harper and Prentice, the DMCA-like anti-circumvention provisions remain largely unchanged].

The bill includes important provisions for consumer rights such as time shifting [while long overdue, the time shifting provisions are rendered ineffective in the digital environment by the bill's anti-circumvention provisions.  In the event that the bill also includes a format shifting provision to allow for music to be transferred to iPods, the same concern arises since copy-controlled CDs cannot be legally shifted].

The bill ensures that Canada lives up to its international copyright commitments having signed the WIPO Internet treaties in 1997 [Canada is currently fully compliant with its commitments since signing a treaty does not mandate ratification.  Further, the government will speak about "implementation" rather than "ratification" since this bill will still not allow Canada to fully ratify the treaties and sticking to implementation will enable the government to delay meeting its commitment to debating international treaties before ratification. Finally, there is great flexibility within the WIPO Internet treaties such that the Canadian approach could easily be far more balanced and still allow for eventual ratification].

The bill responds to trading partner criticisms about Canada's outdated copyright laws [While "trading partner" is just code for the U.S., two recent international studies have found that Canadian intellectual property ranks in the top half of the G8, with the World Economic Forum ranking it ahead of the U.S.].

The anti-circumvention provisions will allow business to introduce new models for the digital world [There is no evidence that these business models are not already being introduced into Canada as digital music sales growth has surpassed the U.S. for the past two years, some U.S. companies like SpiralFrog have launched first in Canada, and many businesses are abandoning DRM.  Moreover, the Business Coalition for Balanced Copyright, comprised of some of the leading Canadian businesses, has warned against adopting a U.S. DMCA-style approach].

Canada has looked to the examples of other countries, including the recent New Zealand copyright law [Unfortunately, the government is likely to adopt the more restrictive NZ time shifting provision and ignore its more flexible approach on anti-circumvention].

The government has listened carefully to the concerns of the many stakeholders and interested Canadians [The Minister has still not met with many leading copyright groups, particularly those representing consumer and education interests].

The bill contains important anti-circumvention exceptions to protect privacy and security [Similar provisions in the U.S. have proven to be a total failure with cases such as the Sony rootkit incident leading to hundreds of thousands of vulnerable personal computers and class action lawsuits in both the U.S. and Canada. A possible provision to exempt unlocking cellphones will be similarly ineffective since the law will make it a violation to distribute the software that can be used to unlock devices.  A far more effective approach, adopted in New Zealand and in Canada under Bill C-60, would be to make the act of circumvention a violation only where it is done for the purposes of copyright infringement. In fact, NZ has even identified trusted authorities who are given explicit permission to circumvent in appropriate circumstances].

The bill protects Internet service providers with a notice-and-notice takedown system [This is true and represents an important provision.  However, recent reports on the secret negotations on the Anti-Counterfeiting Trade Agreement suggests that Canada may well agree to additional provisions that would compel ISPs to more actively monitor their subscribers].

The bill features a much-needed "making available right" as is found in many other countries [Canada arguably already has a making available right within its copyright law. Moreover, even the U.S. provision has been interpreted to require actual distribution in order to trigger the provision].

The bill is only the first step in a broader copyright reform process that will address additional issues once this bill is enacted into law [Leaving aside the fact that major copyright reform in Canada is completed once every decade, the additional issues are the further IP enforcement provisions coming our way under ACTA in response to U.S. pressure. The bigger concern are all the issues that this bill will not address – fair use (Israel recently enacted a fair use provision and Japan just announced plans to do so as well), crown copyright, educational uses, statutory damages reform, private copying (as the Conservatives promised to address), and modernizing the backup copy provision].

The bill will go through full committee hearings with interested Canadians invited to participate [assuming that the Industry Committee does not conduct hearings until the fall (summer hearings would effectively exclude many voices), the government may want to hear from the following groups, who will be less than effusive with praise:

Indeed, the challenge will be to find supporters of the legislation other than the usual copyright lobby groups and U.S. Ambassador to Canada David Wilkins.]

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