61 Reforms to C-61, Day 12: Music Shifting Provision and Private Copying

I noted last week that Bill C-61 creates a legal framework that means that consumers may buy a CD and pay the levy on a blank CD, yet still violate the law if they circumvent copy-controls in order to make a private copy of their purchased CD.  There is a second private copying angle that merits analysis.  The music shifting provision blocks users from shifting music to their iPod if they borrowed or rented the sound recording to be shifted.  However, in what may be a case of bad drafting, the same provision appears to allow users to transfer borrowed or rented CDs to their iPod with one additional step that bring private copying into the picture.  The process requires the user to make a private copy of a sound recording onto a blank CD.  The private copying system allows for such copies from borrowed or rented CDs.  The user then shifts the sound recordings from the private copied CD to their iPod. 

This additional step would appear to meet the requirements of the law (Section 29.22(1)), namely:

  1. the sound recording is not an infringing copy (private copies are not infringing)
  2. the individual legally obtained the sound recording other than by borrowing it or renting it (the private copy version was legally obtained and is not borrowed or rented)
  3. no circumvention of DRM
  4. one copy per device
  5. no giving away the reproduction
  6. reproduction only for private purposes

While it is possible that this is the intent of the legislation, my guess is that the provision highlights the danger of an overly complicated statute that seek to account for every possible scenario.  The reality is that drafters won't catch every possibility, which is precisely why anti-circumvention legislation has created so many "unintended consequences."  The better approach on music shifting would be to drop this confusing and complex structure and rely instead on a flexible fair dealing standard as is the case in the United States.


  1. Anonymous says:

    Will affect libraries in Canada?

    [ link ]

  2. Exploder says:

    fair dealing
    “The better approach on music shifting would be to drop this confusing and complex structure and rely instead on a flexible fair dealing standard as is the case in the United States.”

    Amen. I think we will see whether the public has any representation left at all, by whether we get some RIGHTS, in balance with their copyrights.

    Fair dealing, the more flexible and non-specific, the better. The principles underlying fair dealing need to be completely generalized, if it is to have any meaning into the real future. We need our rights recognized: that when we buy music, we have the right to listen to it. No matter what kind of equipment goes between the media we buy, and our ears. That’s for us to decide. That is our equipment, and our private space, to do and buy as we see fit. We should only surrender the free usage of our own equipment, if they will compensate us for not being able to use what we bought, like our computers, burners and portable players (that will be the day).

    The big companies keep wanting to STEAL this right from us, only so they can charge us over and over for the same content in different packages. For example, I don’t see Safeway lobbying that I can’t repackage or cook food, using whatever tools I want in my kitchen: I paid, so now it’s mine. They even sell bags, containers, jars, wraps and foils, utensils, etc.. They also sell the food in practically every possible package and combination. The big media companies would criminalize us for putting food in the freezer, cooking it not as directed, or dividing the supplied portions differently. It’s simply absurd, indeed dispicable. C-61 practically lets them tell us how many times we must chew, or go to jail.

    Bill C-61 was deliberately designed to abolish any true general rights. It leaves us with only specific concessions, all crippled and hopelessly limited, and most of which will be completely obsolete in under 5 years, if they already aren’t (they actually remembered VHS, hahaha).

    I suggest that we should have absolute rights to any use of anything we buy, with the exception of selling copies or commercial public performances. That’s it. I can buy a CD and melt it down and smoke it, drive DVD’s into my eyes with a mallet, copy them 1000000 times (making blank disk salesmen rich for my folly), play the 1000000 copies all at once on my 1000000 stereos, record all that onto an LP while the neighbors stare in awe, and then throw it like a frisby to the moon, if I want to. If industry were smart, they would offer to sell me what I need to git’er done. Just like the computer industry has.

    And I suggest that they deserve, need, the right to stop me from selling copies of what I bought from them. That’s completely fair. That would obviously be stealing.

    The difference between fair personal use, and commercial pirating. So simple a 5 year old would grasp it. Simple enough to work. And fair.

    We need to let our government know that if they proceed to sell us out with C-61, we will hurt them and anyone else who would gain by such treachery.

    61 reforms are not enough.

  3. Keith Rose says:

    I was thinking along the same lines in a thread on the Facebook group, but concluded that the intermediate copy wouldn’t change the way the recording was “obtained”, under the normal meaning of the words. But there’s a further additional step that could be considered. If the digital recording was transcoded, rather than simply reproduced, the output would arguably not be the same recording anymore. This would seem to strengthen the argument that the (new) sound recording embodied in the private copy was obtained separately from the original, borrowed, source.

  4. This suggests that US fair use (which is not really the same as flexible fair dealing) clearly permits copying borrowed music. I am not convinced that this is correct, as it will trip over several limits to fair use.

    I am also puzzled that while there is so much anti-US sentiment over Bill C-61 (endless stuff about Uncle Sam) we are now asked to embrace US fair use.

  5. enforcement?
    I would like to know HOW they plan on enforcing this legislation. I mean..there isn\’t a police officer in every home. They really can\’t stop people from circumvention locks on music. Are they going to go door-to-door in every city and town in Canada to check people\’s CD collection and mp3 players?

  6. decimation
    Of course not. They will use a technique in fashion amongst Nazis called decimation. One every 10 or 100 or perhaps 1,000 would be checked and if found to be an infringer (not so difficult with this bill) he will paid for anybody else who would not be caught. Very democratic. Will you be the next?

  7. giovanni says:

    61 ases
    …of course there isn’t going to be enough police to catch all c-61 abusers. But more importantly Can the this “law” be challenged in the courts. Can the Judiciary overrule it if it is seen to be an unreasonable infringement of individual rights?

    If not then Mr. Bumble is correct!

  8. Name Witheld says:

    They’ll enforce it…
    They’ll enforce it by passing ACTA & having the border guards do their dirty work by checking your laptops & iPods.

  9. Of course the anti P2P agencies will be doing the investigative work for the government, and it is the government who will be called in for the arrests, and the government that takes the credit.

  10. Anonymous says:

    “They really can’t stop people from circumvention locks on music.”

    By making the tools that circumvent such locks illegal to distribute, they can accomplish it for all legal intents and purposes, forcing everybody that wanted to continue do so “below the radar” of law enforcement. You’re right they can’t stop everybody, but they can stop everybody who doesn’t want to break the law.

    What is so utterly asinine about this proposed legislation is that a person who never intended to infringe on copyright (for example, copying a song to his ipod for his own private use) can suddenly find themselves in a position where if they want to continue to enjoy that privilege (one which, I might point out, the bill also supposedly expressly grants), one must go and break the law. The idea that the prohibitions only apply to circumventing technological copy protection measures is irrelevant, because such protections are trivially added to digital works and should this law get passed, it is a foregone conclusion that copy protections would be almost ubiquitous, as a publisher could strongarm the consumer into having to buy more of *their* products in order to simply, for example, media-shift a music CD onto another device for their own private use.