Appeared in the Hill Times on May 24, 2010 as My Seven Questions for Heritage Minister Moore on Copyright: Geist

With reports that a new copyright bill could be introduced this week, thousands of Canadians have been expressing concern with the government's plans, as there are mounting fears that the results from last summer's copyright consultation may be shelved in favour of a repeat of the much-criticized Bill C-61.  

The foundational principle behind C-61 was the primacy of digital locks. When a digital lock (often referred to as digital rights management or technological protection measure) is used – to control copying, access or stifle competition – the lock supersedes virtually all other rights.  The fight over the issue has pitted the tech-savvy Industry Minister Tony Clement, who has reportedly argued for a flexible implementation, against Canadian Heritage Minister James Moore, who has adopted what many view as an out-of-touch approach that would bring back the digital lock provisions virtually unchanged.

Moore has declined to comment on his position, but his approach raises some difficult questions:

1.  Moore has been an outspoken critic of the extension of the private copying levy to iPods, deriding it as the iTax.  He is content to leave the levy on blank CDs in place, yet the forthcoming bill is likely to block personal copying of consumer purchased CDs that contain copy-controls onto blank CDs.  Why does Moore believe it is acceptable for Canadians to pay twice – once for the CD and a second time for the levy on a blank CD – and still face the prospect of violating the law?

2.  Thousands of Canadians buy DVDs from outside the country as they seek content not typically available at home.  Yet DVDs purchased in Europe, Asia, or South America do not work on Canadian DVD players.  The forthcoming bill is likely to block attempts to circumvent the region coding on DVDs and thereby stop Canadians from legally viewing DVDs they have purchased. Is this consistent with Moore's pro-consumer position in other areas?

3.  Documentary film makers and visual artists often use small clips from DVDs in their art.  The use of those works without permission is currently permitted through the criticism and review sections of the fair dealing provision in the Copyright Act.  The forthcoming bill is likely to block unlocking a DVD to use such clips, however, since the presence of a digital lock will trump fair dealing.  In fact, even the much-discussed potential introduction of new artists' exceptions for parody and satire would be limited by locks. What is Moore's plan to allow Canadian creators to complete their art?

4.  The Canadian media regularly rely on the news reporting section of the fair dealing provision to use portions of audio or video without permission. The forthcoming bill is likely to render such activities violations of the law anytime a digital lock guards the audio or video.  Does Moore believe this strikes a fair balance between copyright and freedom of the press?

5.  With the emergence of the Amazon Kindle and Apple iPad, Canadian teachers and students are facing increasing pressure to switch to electronic books.  E-books offer great potential, but also frequently come with restrictive digital locks that have been used to remotely delete content from users' devices in their own homes.  Given the importance of the research and private study sections in the fair dealing provision, is Moore satisfied with an approach that would hamper the use of those sections for a critical part of the education process?

6.  The new copyright bill is likely to reintroduce new exceptions that legalize recording television shows (time shifting) or moving purchased content from one format to another (format shifting).  While consumers will undoubtedly welcome these long overdue reforms, they will likely be contingent on the absence of any digital locks.  Does Moore fear the new rights will be regularly blocked by anti-copying technologies?

7.  Is Moore aware that the solution to all of these concerns is a single provision that would allow Canada to implement the World Intellectual Property Organization's Internet treaties, provide legal protection for digital locks, and preserve the copyright balance by simply confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes?

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.