As I posted earlier today, the Electronic Commerce Protection Act comes to a conclusion in committee on Monday as MPs conduct their "clause by clause" review. While I have previously written about the lobbying pressure to water down the legislation (aided and abetted by the Liberal and Bloc MPs on the committee) and the CMA's recent effort to create a huge loophole, I have not focused on a key source of the pressure. Incredibly, it has been the copyright lobby – particularly the software and music industries – that has been engaged in a full court press to make significant changes to the bill.
The copyright lobby's interest in the bill has been simmering since its introduction, with lobbyists attending the committee hearings and working with Liberal and Bloc MPs to secure changes. The two core concerns arise from fears that the bill could prevent surreptitious use of DRM and block enforcement initiatives that might involve accessing users' personal computers without their permission.
The DRM concern arises from a requirement in the bill to obtain consent before installing software programs on users' computers. This anti-spyware provision applies broadly, setting an appropriate standard of protection for computer users. Yet the copyright lobby fears it could inhibit installation of DRM-type software without full knowledge and consent. Sources say that the Liberals have introduced a motion that would take these practices outside of the bill. In its place, they would define computer program as, among other things, "a program that has as its primary function…inducing a user to install software by intentionally misrepresenting that installing that software is necessary to safeguard security or privacy or to open or play content of a computer program." This sets such a high bar – primary function, intentional mispresentation – that music and software industry can plausibly argue that surreptitious DRM installations fall outside of C-27.
Even more troubling are proposed changes that would allow copyright owners to secretly access information on users' computers.
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With the final Industry Committee review of C-27, Canada's anti-spam legislation, set for Monday afternoon, lobby groups have been increasing the pressure all week in an effort to water down many of the bill's key protections. Yesterday, the Canadian Marketing Association chimed in with an emergency bulletin to its members calling on them to lobby for changes to the bill. While the CMA was very supportive of the bill when it appeared before the committee in June, it now wants to kill the core protection in C-27 – a requirement for express opt-in consent.
The use of express opt-in consent is consistent with the experience in countries such as Australia and Japan, who have found that either opt-out (the customer must request off the list) or implied opt-in (the business assumes it has consent based on other factors) is ineffective and prone to abuse. C-27 includes many exceptions (business-to-business, all non-commercial email among them) to protect businesses, but without an express opt-in approach as the default, the law's effectiveness will be severely undermined. While the CMA did not even raise the issue in June, now it wants the bill changed, seeking reforms that would allow for implied consent, particularly where the information is less sensitive. The CMA argues that it needs the reforms to allow marketers to rent lists of potential customers, yet C-27 does nothing to stop renting lists with customer names who have opted-in. Instead, the CMA's change would eviscerate a key foundation of the bill by opening a huge loophole in the consent provisions.
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The next round of Anti-Counterfeiting Trade Agreement talks is just a few weeks away. In advance of that meeting the U.S. government has made the Internet provisions available for review to a select group of insiders. KEI has all the details on who got access and under what conditions.
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Justice Minister Robert Nicholson has responded to a pair of committee reports recommending changes to the Access to Information Act and the Privacy Act. He rejected both sets of recommendations.
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