A Week in the Life of the Canadian DMCA: Part Three

The week in the life of the Canadian DMCA continues (day one, day two) with Josee.

In the morning, Josee teaches a class on media in the digital world.  The class is conducted in a distance-learning classroom and includes both her students and students from a school in Edmonton using Alberta's SuperNet network.  This is the second year that she has run the course and she is using the same lessons, which include extensive copies of articles for course materials.  In the afternoon, Josee teaches a communications class, making use of a website that features a copyright and an “all rights reserved” notice.  A student in the class presents a research assignment that features short excerpts from a DVD copy of the movie Broadcast News and passages that are cut-and-pasted from an electronic book that contains a digital lock.  Josee is a big Calgary Flames fan.  The Flames are playing that night with the game broadcast on pay-per-view.  Josee has a dinner commitment, but decides to buy the game and record it with her PVR to watch when she gets home.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 purports to promote the use of distance learning by permitting the communication of copyright works for educational or training purposes (Section 30.01(3)), yet a subsequent provision (Section 30.01(5)(a)) requires teachers to destroy the lesson within 30 days of the end of the course.  Since Josee is reusing the same materials without having destroyed them, the course materials do not qualify for the exception.

Bill C-61 also purports to allow Josee to use the Internet and websites in her class.  While she can arguably do so without this exception, some educational lobby groups pushed hard for an explicit exception.  However, since the site includes the words “all rights reserved,” it does not qualify for the exception. (Section 30.04 (4)(b))

The student presentation may involve at least two incidents of infringement.  Obtaining clips from the DVD would require the circumvention of the DVD copy-protection.  Although the underlying use may be permitted under fair dealing, Bill C-61 makes the mere act of circumvention a violation of the law. (Section 41.1)  Moreover, if the electronic book contained copy-protection, the circumvention to cut and paste select passages would violate the same provision.

Josee concludes her day with the possibility of yet more copyright infringement.  Bill C-61’s time shifting provisions do not apply to video on demand (such as a pay-per-view broadcast) if there are restrictions on copying. Recording the game may therefore violate the law.  Moreover, if there is a copy-restriction on the broadcast, attempts to circumvent the restrictions would violate Bill C-61'a anti-circumvention provisions.


  1. hockey
    Smart move, Mr. Geist. If Canadians think this bill could affect their hockey-watching we’ll REALLY see some people up in arms.

  2. Chris Ball says:

    Pay-per-view = video-on-demand?
    Careful there: section 29.23(6) defines a “video-on-demand service” as “a service that allows a person to receive programs at times of his or her choosing.” A live pay-per-view event does not qualify. Thus, recording the hockey game (assuming no circumvention of technological measures is necessary) is permitted….as long as you only watch it once and delete it right away afterward.

  3. R. Bassett Jr. says:

    Good examples
    However, I have one that is far more wide reaching than just the “upper middle class” family you are portaying:

    Joe Blow owns an a Finkle-mc-magico MP3 Player Delux. He has downloaded music in the past from legal online services, as well as copied music to it from his CD collection. Some of those CDs had copy protection. Joe did not retain reciepts for his online music purchases.

    Under this new law, Joe:

    A) Will have to prove his innocence rather than his guilt in regard to breaking copyright, rather than our current system of justice which is innocent until proven guilty.

    B) Given that there is no “prior to this date” exemption, Joe has no choice but to destroy his Finkle MP3 Delux, as he cannot prove he purchased the music on it. Besides, some of it may have be put on there by circumventing copy protection.

    D) Finkle Co. loses market share over night, because the legal online music stores that are not owned by Apple do not have as large of a cataloge as Apple’s iTunes, so people stop buying Finkles and just buy iPods – why “fight the power”?

    E) To enjoy his CD collection, Joe must go to a pawn shop and try to find an old CD Walkman and CD carrying case. Joe feels very 1990s, but he also doesn’t want to go to prison, because there is no way he’d ever be able to pay thousands of dollars in “damages”.

    See, this law even hurts competition in the electronics industry. It’s an ungodly massive step backward into the archaic times before handheld data processing and it’s completely wrong. We Canadians would be better off selling our country as whole to Japan than we would remaining under the rule of the current Conservative and Liberal parties. In fact, I think that this should be a viable suggestion. Japan could use the space and we could certainly use the leadership of a nation that is obviously making use of the intellegence of its citizens.

  4. Colin McInnes says:

    Pay per view restrictions
    Depending on how the PVR is set up, it may be illegal to record shows at all. If it stores the recorded shows at the cable provider rather than in a set-top, 29.23(5) makes it illegal to record any show.

    That’s actually a good question about whether PPV is VoD. If it isn’t, because you can’t choose when to receive the show, then 29.23(2)’s stipulation that the NHL’s “you can’t copy this show” announcement wouldn’t override 29.23(1).

    Very odd though, that they wouldn’t define pay-per-view. Then again, most PPV’s are protected by things like Macrovision and Broadcast Flags, so recording them would be felony anyway.

  5. Pay per view restrictions
    Pay per view pay was probably not included as the content owners can decided for themselves what is and isn’t a felony to record. And, with the MPAA seeking less restrictions in the US for the use of digital locks on broadcasts, it’s probably safe to assume that we’ll see more and more programs become digitally locked (the MPAA has hated recording devices since the invention of the VCR).

    Does Canada even have restrictions covering what the broadcasters can flag for no-recording?

  6. US TV
    in the usa for example all tv will have the locks very soon if not already. Also making illegal TV that has no more copyright is also a smart arsed moved.

    GOT me up in arms.

  7. Anonymous says:

    Here’s an interesting one: What about DRM that add’s itself into your computer? I’m not just talking about sony’s rootkit here. There is a version of a DRM that either replaces or overrides your cd/dvd drive drivers. It checks to see if the cd/dvd in the drive is a copy protected one and refuses to access it for copying etc. I have also heard this DRM is terrible, i.e. causes random crashes/rebooting, oversteps it’s bounds and doesn’t allow copy of non DRM products etc.

  8. broadcast flag
    wait until the broadcast flag is used to prevent fast forwarding of pvr’d television content.

  9. destroying lessons
    Could the distance learning scenario also apply to, say, PowerPoint notes shared on a course website and which contain copyrighted content such as pictures from a text?

  10. Wouldn’t this make downloading of any video stream illegal? XBox 360 and PS3 let you downloaded movies, but they stream them to your computer. You do “have a copy” in your house though, and even if it lets you delete (or auto deletes) the movie there are still remnant pieces of it on your hard drive.

    What if you are on vacation, and can’t delete a download within 6 days? Why are the penalties so severe for watching a show “legally” 144 hours after you record it, compared to watching it 146 hours later?

    How far do you have to go technically until you have proven you deleted it? On a Windows PC, its dead easy to delete a movie after 6 days, and then re-record it by pressing the undelete button. Or hitting Undo. I suppose you actually have to prove that you exterminated each and every frame and sound from your computer, and that no pieces remain.

    Do I need a different Delete button for bands who give out their music for free (promotional), compared to the delete button for RIAA bands?

    If I buy a Britney Spears CD, and decide I detest it, is it ok to make 6 copies, and use all of them only as coasters for my coffee table?

    If copies can’t ever be made due to DRM, then why can’t I return something I don’t like to the store? Why doesn’t she buy back her bits, because I can return shoes I bought that don’t quite fit. And, if she is so hell bent on protecting her goodies, why is she polluting the AM airwaves with them for free?

  11. This is slightly off topic. I just received a response to a personal letter I sent to my MP B. Bigras in a borough of Montreal. This reply comes for the Canadian Heritage Minister Josee Verner. It was one of the cookie cutter responses that was probably sent to thousands of other people. How can an MP from the Bloc Quebecois (I didn’t vote for them by the way) request that a Minister who isn’t of the same party, reply to my email?

    I am so offended by this. Has anyone else experienced this?

  12. Education exemptions
    Are there not exemptions for education users & students?

  13. Cookie-Cutter Responses
    I sent a series of letters with some deep professionally- and consumer-based questions pointing out severe problems with this bill to my MP, Prentice, and the Heritage Minister, and cc\’d the opposition critics. I was very civil and held a professional tone throught the entire thing.

    If I get a cookie-cutter response from that, I\’m going to take it to the news.

  14. PQ brown nosers

    My PQ MP did not reply to me either. Rather we got a reply, like you, from Heritage Minister Josee Verner.

    I guess we now know how the PQ is standing on this issue now.

  15. We should compile all these letters to see where all the MPs stand. I am seeing red right now. The Bloc does nothing in the House of Commons but apparently represent the interest of Quebecers…. obviously they don’t even do that any more… or did they ever do that?

    Prof. Geist, is there any way you could either write a piece about the topic of replies from MPs and get us all to post our emails and the responses to these emails? I know it’s asking a lot but you a very strong rallying point for all of us.

  16. Education course materials
    Course materials are already being destroyed from semester to semester. Class sites are temporary, at least in my education institution, created semester by semester using Microsoft Share point software. These sites are password protected and unavailable when the semester ends or a student graduates. The traditional resources I can still use, but the more recent electronic documents, discussions and links are being destroyed because of the proprietary software. Though, I\’m not sure that Bill C-61 will be entirely to blame for the transitory nature of the internet. It\’s not helping, but it\’s not the only cause.

  17. Education course materials
    The educational course materials question is interesting. I’ve taken more than a dozen online courses and I’ve always downloaded copies of the materials, just in case they prove useful in the future (it doesn’t happen often, but has happened occasionally).

    I have multiple digital copies of these courses because of an extensive backup policy I follow. Under the new law, would it be illegal to keep a digital copy of a course I paid for, because it might have some copyright materials included in it? I’m sure not going to print everything out. This is the 21st century (not that a lot of politicians have noticed).

  18. R. Bassett Jr. says:

    Education course materials
    It wouldn’t matter if the material was printed or not, it would still be a copy.

    I do enjoy how the process responsible redundant backups will now be a criminal offence. I am sure that corporations like Sony, who replace all of their hard drives once a year, while retaining the old ones for several years, will see the value in the new law too. (I read an article on redundant backups a while back, which featured the Sony line of thinking, “replace a drive before it fails, then keep it hand in case you need it later” essentially).

    Honestly, this legislation isn’t even desgined with today’s world in mind, let alone what the world will be like in 5 – 10 years.

  19. Even a simpler example the word jumbles in your news paper are an encryption scheme. Solving the jumble, illegal.

    Being able to read the following joke we’ve all seen illegal

    Aoccdrnig to a rscheearch at Cmabrigde Uinervtisy, it dseno’t mtaetr in waht oerdr the ltteres in a wrod are, the olny iproamtnt tihng is taht the frsit and lsat ltteer be in the rghit pclae. The rset can be a taotl mses and you can sitll raed it whotuit a pboerlm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe. Azanmig huh? yaeh and I awlyas tghuhot slpeling was ipmorantt!

  20. Backups
    let’s say Josee’s computer is on the school’s network, and is backed up automatically every day over the network. The school’s IT department backs up all the staff members’ machines this way. The course Josee taught a year ago now exists in multiple backup copies, possibly on some kind of physical media (tape, optical disc) along with other users’ data – not necessarily just on a hard drive somewhere. As part of the normal backup system, periodically tapes/discs are taken out of rotation and archived, possibly permanently.

    so the IT dept is now contributing to infringement by keeping archive backups as part of their normal job. are they supposed to go back and “destroy” those copies on physical media too? – meaning possibly optical discs containing other users’ data alongside the infringing material?

  21. A Psychology Professor says:

    Copyright exam questions
    I was recently on a committee to find a replacement introductory psychology textbook for my university. One of the selection criteria is the quality of the publisher’s test bank, copyrighted questions for use on exams provided by the publisher to match material from their textbook. The University (and common sense) requires that I keep student exams for some period of time (this works out to be about 2100 introductory psych exams a year for me alone – one of over a half dozen people teaching this class at my university). Would this proposed law allow me to keep student exam question books after they have been graded?

  22. Recording
    I don’t understand the recording of the hockey game. If the game were being aired on regular tv station, & somesome used their VCR to time tape it…where’s the difference?