Liberal MP Marlene Jennings on C-61

Liberal MP Marlene Jennings, who serves as the party's deputy house leader, has been sending the following letter to concerned constituents about Bill C-61.  The letter, which is the most substantive that I have seen, is posted in its entirety with permission.

Thank you for your letter concerning Bill C-61, An Act to amend the Copyright Act. Over the last few months I have made a concerted effort to better inform myself of all of the issues associated with copyright reform in Canada. In this vein, I joined the Intellectual Property (IP), Anti-Counterfeiting and Anti-Piracy Parliamentary Caucus.  Through the meetings and consultations held by this group I came to the conclusion that reform of our copyright legislation will, I hope, have the following principles at its core:

1) Anti-circumvention measures and penalties must be linked to the efforts of those who violate copyright for commercial purposes, and not just the technology itself;

2) Provisions for flexible fair dealing. Fair dealing creates a limited number of exceptions, including private study, research, criticism, review and news reporting to charges of infringement.

3) It would also incorporate a fair and well defined 'notice and notice' system, which involves a notification from a copyright holder – often involving movies, software or music – claiming that a subscriber has made available or downloaded content without authorization on file sharing systems.  The Internet Service Provider forwards the notification to the subscriber but takes no other action – it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to remove the infringing content (if indeed it is infringing) voluntarily.
In assessing the degree to which Bill C-61 incorporated these basic principles, I compared it with the previous Liberal government's proposed copyright Bill – Bill C-60 – which was introduced in June of 2005. Bill C-61 incorporates the same 'notice and notice' requirements as Bill C-60.

Though C-61 appears to offer more flexibility on fair dealing, in banning circumvention technology the means to legitimately copy or change formats is torn from the hands of legitimate users. Thus, the section of the bill banning legitimate anti-circumvention technology needs to be eliminated and replaced with something that experts in the field would feel is more appropriate in allowing a greater deal of flexibility in fair dealing. I hope that these changes will be developed during the committee's study of the bill.

In Bill C-60 (clause 27, new subsection 34.02(1)) anti-circumvention penalties required that circumvention be for the commercial purpose of infringing copyright, for example reproduction or communication of the work, whereas Bill C-61 (clause 31-new subsection 41.1(1)) prohibits circumvention in general and does not require infringement of an economic right in the work (thus circumvention alone is deemed an infringement). The bill prohibits picking the digital locks (often referred to as circumventing technological protection measures) that frequently accompany consumer products such as CDs, DVDs, and electronic books.  Under the new 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.

Even the few exceptions to anti-circumvention measures in the bill are deceptive since the software programs needed to pick the digital lock in order to protect privacy or engage in research are prohibited. This is a part of the bill I hope will be amended when the bill gets to committee so that only deliberate infringement of commercial copyright is punished, not the possession of the technology to do so.

As you can see, this is a highly technical piece of legislation, and I will have to study it more closely. While it is my hope that the Conservatives will send this bill to committee for further study and changes before second reading, thus allowing for a more wide-ranging study of the bill, should the government decide not to do so, I believe that significant amendments will still be possible in committee after second reading. It will not, in my view, hinder a wide consultation by the Committee.

When in government, the Liberal Party put forward bill C-60 to form the basis of discussions between all parties about how to update Canada's Copyright Act. That is why we offered to send it to committee before second reading (so it could have wider changes made to it if need be). We need wide consultations with everyone affected – including consumers, artists and the business community – to ensure that we properly understand all of the impacts this bill will have. The Conservatives have failed to properly consult Canadians thus far.

Rest assured that the Liberal Opposition will work to ensure that this bill receives the close study it deserves, and will be amended as needed. Personally, I will work to ensure that the bill meets the minimum requirement I have outlined above.

Thanks again for writing and please do not hesitate to contact me again on this or any other issue.

Marlene Jennings, P.C., M.P.
Notre-Dame-de-Grâce – Lachine


  1. You can’t argue with those points. A much better balance which targets piracy for profit and not the consumer. If they embodied this spirit into the bill it would have been a non-issue. It is a little funny because on the IT Tech side, most security systems put in place adopt a ‘lock all down’ approach. Then as requirements arise, exceptions are made and added. Bill C-61 in this case is a ‘lock all down’ with the promise (no guarantee) that provisions will be added to update and balance the bill.

  2. “Anti-circumvention measures and penalties must be linked to the efforts of those who violate copyright for commercial purposes, and not just the technology itself”

    While a definite improvement, this proposal unfortunately implicitly legitimizes copyright infringement for non-commercial purposes, which I don’t think is a desirable goal to be aspiring toward. All it might mean is that if a person isn’t profiting from copyright infringement, then it’s not commercial, and he might somehow get off with nothing more serious than a warning. Worse yet, consider a scenario where some publisher X tries to produce a work, and company Y wants to squash those efforts, so they contract somebody from outside their company to do some work for them and to also distribute X’s work for free to limit the effectiveness of X’s publishing and distribution. Because the person who is infringing on X’s copyright isn’t evidently making any profit off of the copyright infringement, commercial purposes wouldn’t be seen as applicable and the person could be considered vindicated (and even at best the commercial purposes may be virtually impossible to prove in court, as long as company Y does it sneakily enough).

    It would seem to make more sense if the proposal simply read as: “Anti-circumvention measures and penalties must be linked to the efforts of those who violate copyright, and not just the technology itself” That is, discard the notion of commercial purposes entirely. Since personal and private use copying as well as notions of fair dealing would be explicitly exempt from copyright infringement anyways, those activities would still be permitted.

    Anyways, other than that, their proposal looks very good.

  3. aonon @ 11:38:23
    “Worse yet, consider a scenario where some publisher X tries to produce a work, and company Y wants to squash those efforts, so they contract somebody from outside their company to do some work for them and to also distribute X’s work for free to limit the effectiveness of X’s publishing and distribution. ”
    In a scenario like this the distributer is being paid by a competitor, and therefore it is for commercial purposes and it would remain illegal.

  4. Anonymous says:

    My point was that it could be rather easily hidden from all but the most careful scrutiny that it was for commercial benefit, and there would be no reason to subject somebody to such scrutiny unless they were already suspected of breaking the law. But if non-commercial infringement is legitimized, there would be no basis upon which to suspect them of it in the first place, so the necessary investigation would not occur. Thus, copyright infringement, whether commercial or not, should remain illegal. As long as personal and private use copying and the notions of fair dealings are considered exemptions to infringement, then those activities aren’t infringing in the first place and would therefore still be allowed.

    The only other thing that I might add at this point is that I don’t think that the proposed act should apply only to commercial copyright, but *ALL* copyright, whether commercial or not. There are plenty of noncommercial works (particularly computer software) that are still covered by copyright, and I believe those copyrights should still be respected, even though the interests of the copyright holders are not necessarily commercial.

  5. distribytion chanel does it again
    again a troll without name(the 2 posts above), probablly an inside distributor or part thereof
    this people would do ANYTHING to protect their ILLIGAL rights to copyright( that they have bought off during duress). just look his concerns regarding ONLY possible competition releasing FREE stuff with “damaging” purposes.
    it is people like this that NEED to be thrown out from the distribution chanels and NOT protected!

  6. Anonymous says:

    victor, me a troll, no.

    I was addressing a specific point that was brought up regarding competitors paying someone to illegally distibut work, and pointing out that the scenario would be illegal anyway as they were being paid. I made no comment one way or the other about free distibution. I had a line at the end of the post regarding sites that make $$ from ads and distribut copyright material and how I think they should pay, I removed it though as it had nothing to do with the point I was addressing.

    @ anon @ 13:14:08
    “My point was that it could be rather easily hidden from all but the most careful scrutiny that it was for commercial benefit”
    So we default to everyone guilty then?

    “copyright infringement, whether commercial or not, should remain illegal” – I’m pretty sure it already is, it’s just a matter of what is required to prove infringment happened.

    DRM use is not to stop infringment, but to controll how a ligit user is able to use a purchased product.
    Should companies be allowed to use DRM, hell yes, let the free market reigh. Should DRM be protected by law, nope.

  7. Just commercial or not?
    Ok this is a fair question. In my mind it boils down to damage and reducing the likelyness that IP rights protection be used by rightsholders to intimidate or profit on (non-commercial) consummers. If all alleged IP violation can be pursued, regardless of commercial intent, than the likelyness of RANDOM ENFORCEMENT (lest a dragnet system for systematic violation be put up on the distribution channels, which is the only way out of this reality but which creates irresponsible privacy downsides) coupled with EXEMPLARY PUNISHMENT is akin to vengeance and serve no policy objectives. It might be hard for a consummer to show (remember this is a preponderance of proof [sorry bad translation from french i\’m sure] burden, because it is not criminal) that he possesed this or that cd prior to riping it on his hard drive. I have tons of cds that i\’ve lost track of (and i couldn\’t care less) but that are on my computer. So the vindication of alleged non-commercial violation would likely be in contradiction with the principle of \”rather 100 guilty uncought than 1 innocent found guilty\” which, IMHO, is not really debatable. People have to stop assuming that the law has to be laid so as to be able to catch ALL the infringements ALL the time, because if this is the principled goal, then i\’m sorry to say that you\’ve erred on the totalitarian side of the ideological divide. Laws have to serve policy objectives. And they need to balance interests. And protect the less networked (read powerful) elements of the society it purports to govern by restricting it\’s mood so as not to allow the more powerfull to use it in anti-social ways. If the policy objective is to permit lawsuits of every (randomly and far between) non-commercial infringers, if THAT is the goal, then your are right to critique Miss Jennings minimum requirement. But i argue that this cannot possibly be a goal BY ITSELF, because it serve no policy purpose but vengeance (arguably it could serve instigating a fear climate that could preserve a dying business model, but then again, the BUSINESS MODEL is not what this law SHOULD purport to protect, and if it WOULD, then fear is a shameful indeed mechanism to do it. Note: fear of the gravity of punishment does NOTHING to prevent unlawfull behavior. If it was the case, then one could not possibly understand the extent of routine disobedience in societies where corporal punishment was randomly applied on far-between offenders). Note that by making illegal to profit from infringement, one can concentrate on the higher echelon of piracy to protect whatever business model is deemed appropriate for whatever policy objective (be it creation, innovation, etc…). Nevertheless, this is NOT to say that the anonymous critique were warrantless. They are. As i said, it\’s a fair question. That was merely my take on it.

    By the way, the point about a commercial entity encouraging distribution of a competitor\’s work in order to damage it, is just plain counterproductive. Contributing to the spread of a competitor\’s product and market-share  even though this spread may generate no revenue on its own  is still bad business policy as it helps kicking in some network externalities (which are economies of scale on the demand side). The only time parallel free distribution of one\’s product is bad is when you already have these externalities (maximized) at work and these are almost unchallengable. Even in such cases, (take Microsoft\’s OS dominance), the damage are mitigated by the fact that a lot of people would simply not have bought the product. It is also further mitigated by the fact that some secondary market related to one\’s product can then be exploited at a lower cost and/or higher return expectation. Think hard, and try to find ONE product which, for the purpose of example, you would own, and that you would feel that you would gain an edge by contributing to a competitor\’s free distribution. I seriously doubt you can come up with something. Imagine free Nintendo\’s (or related product and circumvention scheme) distributed by Sony!! Do you think it\’s sound business advice to give? Asking the question is to answer it methinks.

  8. This is one of the best, well thought out responses I’ve seen. And it is from a politician!! I’m truly impressed.

    Okay Ms. Jennings, convince my MP (or your party) to issue a similar letter and you certainly get my vote.

  9. Anonymous says:

    I never said that the publisher was giving it away for free… I said that somebody else giving it away for free could indirectly harm the publisher. To reiterate, let’s say that publisher A produces a work and in some way makes money off of their distribution of it. Company B doesn’t like this, so they get somebody who’s perhaps already contracted to do some other unrelated work for them to distribute it freely “under the table”, so that it’s not easily traceable back to the company, thus there’s no obvious evidence of commercial intent. If company B has access to a larger distribution bandwidth than publisher A does, the actual creator of the work might never make any money off it, so B’s efforts would have quite seriously harmed A. Of course this would be (and currently is) highly illegal, but if non-commercial infringement were implicitly legitimized, there would be no reason to suspect anybody of serious enough illegal activity in the first place to warrant an investigation that might prove its illegitimacy. By having non-commercial infringement being just as against the law (although understandably perhaps with less of a penalty) as infringement with commercial intent, it forces organizations that might think of utilizing such measures to be accountable, and doesn’t allow companies run by people with less than honourable intentions to hide behind a (possibly very elaborate) facade of pretending to have no commercial interest in such a case.

  10. Riley August says:

    I can’t argue with it at all. Private copying is not a significant industry threat to anyone doing actual work right now in the tech sector. You can believe the spin or you can go do work yourself and learn from experience. I chose the latter a long time ago and have seen how much “damage” it really does. Honestly, it’s more damaging to the company’s image as a provider of secure software (due to a lack of updates) than to profits.

    Tech companies, even Microsoft, don’t make much selling to average joes. They make money dealing with (or ripping off) businesses.

  11. tNsLg
    personal use doesn’t harm anybody, and it is currently impossible to enforce. People making money off piracy are the problem.

  12. legal or moral?
    With respect to copyright, people often confuse these 3: illegal, immoral, and immoral only because it is illegal.

    Creators have no moral copyright, only that granted by law. (You can’t disagree with that unless we can agree on a source of morality, and we don’t want to go there for this discussion).

    But lets take “immoral” to mean activities which we think copyright law was actually intended to cover prohibit; because people also often forget that most of todays illegal copying activities involve methods and benefits that were not imagined when copyright law was first negotiated.

    Take the case for format shifting: Most young tech-savvy people don’t listen to music on a CD player. If they buy a CD it is because they are intending to copy it to their mp3 player. In many parts of the world this activity is illegal. Is it immoral? Well… it doesn’t contradict the *intent* of copyright law which was to encourage creativity by securing a limited monopoly to the creators – because in this case the creator has been paid. But that doesn’t make it LEGAL.

    We also have to ask, if this were technically possible BEFORE copyright law was negotiated, would it have been a prohibited activity; if not then it could be considered to not be an immoral activity although it may be illegal.

    Finally, regarding morality; is it moral to make it illegal to legally use music merely because it involves circumventing a “protection mechanism”?

    Consider all these points when you consider the out-of-date copyright law and who is and who is not moral, and therefore what the law OUGHT to be.

    Copyright is solely a matter of law; depending on how the law is changed then copying could be legal and therefore moral, or listening to your current ipod collection could be illegal and therefore immoral.