An Unofficial User Guide to This Afternoon’s Copyright Bill

With the copyright bill – Bill C-32 – being introduced this afternoon, it is worth noting that my technology law column last week (Toronto Star version, homepage version) focused on some of the key issues likely to find their way into the bill.  The column noted the internal dynamics that led to the bill are by now fairly well known.  Industry Minister Tony Clement, emboldened by last summer’s copyright consultation that generated unprecedented public participation, argued for a forward-looking, technology neutral bill with flexibility as a core principle.  Canadian Heritage Minister James Moore advocated for a U.S.-style protectionist approach, with priority given to digital locks that can be used to limit copying, access, and marketplace competition.

With the active support of Prime Minister Stephen Harper, Moore won the fight over digital locks and the new bill will feature provisions certain to please the U.S. government and lobby groups.  Yet the bill will include far more than just tough legal protection for a digital locks.  

This brief unofficial user's guide to the new legislation that focuses on three key issues – fair dealing, Internet provider liability, and digital locks (Internet downloading is unlikely to figure prominently in the bill).

First, the bill is certain to include a handful of changes to the current fair dealing provision. The Supreme Court of Canada has ruled that Canada's fair dealing provision – which is similar though not identical to fair use in the U.S. – must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting, and review) that renders many everyday activities illegal.  

During the copyright consultation, many Canadians called for the introduction of a flexible fair dealing provision that would legalize many common activities.  This is an issue that touches everyone.  Creators would benefit from a parody and satire exception. Consumers would benefit from exceptions for recording television shows or changing the format of content they have purchased. Educators would benefit from exceptions to cover teaching activities and distance education.

Sources say the government has rejected the flexible fair dealing approach, but that new exceptions will make their way into the bill.  The scope of the exceptions – the last bill contained 12 conditions in order to legally record a television show – will go a long way to determining whether the bill tries to strike a balance between competing copyright interests.

Second, the bill will address the responsibility of Internet intermediaries such as Internet providers and search engines for the activities of their users and subscribers.  The past two copyright bills both struck a reasonable compromise by adopting an approach that gave copyright holders the ability to warn users about alleged infringements, but protected the privacy and free speech rights of the public.  The bill will likely adopt the same system once again, which should garner support from across the spectrum.

Third, the bill will include digital lock provisions, known as anti-circumvention rules.  These rules, which will allow Canada to implement international copyright treaties it signed over ten years ago, was the most-discussed issue during the consultation.  Thousands of Canadians argued that Canada should adopt a flexible implementation that renders it illegal to “pick a digital lock” for the purposes of copyright infringement, but preserves the right to do so for legal purposes.

Sources say the government has rejected the flexible approach in favour of the U.S.-style ban on circumvention (subject to a handful of limited exceptions).  If true, the problem with the approach is that it undermines both the new and existing exceptions.  For millions of Canadians, that means that their user rights will be lost whenever a digital lock is present including for CDs, DVDs, electronic books, and many other devices.  In the process, the balance will tilt strongly away from consumers and their property rights over their own purchases.


  1. Sigh
    And this, ladies and gents, is why this shit may actually succeed:

    It seems the common sheep have or will be buying into the “look at what we made legal! :D” approach without realizing “shit, because it’s all locked, it isn’t REALLY legal is it..” truth behind it.

    Damned frickin’ sheep.

  2. Isn’t digital a format? Moving data from a CD to a Hard Drive or other digital content player is not changing format, it’s changing file type;-)

    Just saying.

  3. Does this mean Torrent downloads are illegal now in Canada ?

  4. Junji Hiroma says:

    once everything is illegal,the politicians will STILL try to bypass the Law
    cause they don’t know the law …They ARE the LAW.

    captcha: arise for

  5. Anonymous says:

    Torrent download will more than likely not be illegal, other than for the original uploader. The uploader will have been the one to break the digital lock. It is still a grey area as far as whether or not the downloader has done something illegal. That is why sites like Pirate Bay are still active, because they arent the original uploaders, just the middle men.

  6. Who Really Gives A Rat’s Ass
    Like this or any other stiff armed legislation is going to solve any precived problem.

    This will simply arm Canadian and US litigators with laws that they can clog our over taxed court system with. And add in those pesky pot smokers and our legal system costs are set to EXPLODE. Similar to the Tories electoral support.

    What a shame we live in such unbalanced times. The clear and absolute separation of Corporation and State is so very badly needed.

    Our democracies have been hijacked by special interests and corporations. We need to TAKE IT BACK!

  7. mckracken says:

    if this is a ‘replacement’ to existing legislation…
    …then will the current copy tax be removed from blank media sales? or will the lobby groups attempt to have their cake and eat it too?

    it’s becoming very, very obvious that this government does not have any interests of Canadians in mind when preparing any legislation related to commercial interests of any type.

    how this government manages to remain in place (beyond the obvious ineffectual opposition) is unknown.

  8. hates conservatives says:

    How will the governent enforce digital lock laws?
    I’m really interested in how the government plans to enforce a law banning the bypassing or exploitation of digital locks? What a joke, Harper is such a US stooge.

  9. Kirk Bannister says:

    So sick of the this government
    I have literally had enough of this government, I am one of many albertans that doesnt support the PC Party, I never have and never will. I am so sick and tired of things I used to take for granted yesterday being illegal today. What gives the government any rights to take away my rights or other canadians rights. The internet wasnt created for the government to take away our rights to share with each other and to download. I have had it, I want to see a new party take over as government, I am a strong supporter of the Pirate Party, there views and Idea’s are right up my alley, and they address my concerns as well as everyone else’s.

    I forsee this bill dying on the table just like Bill C-61 did, and another election being called, Cause I will be damned if they arent going to hear my voice, I will tear them a new asshole if I have too. I wasnt born in the states, so why should I give up my liberties and freedoms like the people in the US did to support the lobby groups for the Music and Movie Industry. Like when the Hell did Democracy become a Corporation. I am sick of these corporations going to private places with members of parliament and paying them large amounts of money to make laws in there favour.

    It is time yet again for us to stand up for our rights, before they get taken away, cause I will be God Damned if there going to take any more of my rights away.

  10. ….
    I think this bill attacks creativity and innovation. This government is extremely uneducated about the laws their forcing upon the citizens. I think they need a lesson on creativity/innovation and how information/knowledge influences that.

    If they start locking down liberties people have enjoyed in Canada, then we will only fall down to the level of the countries we strive not to be like (United States). I hope theirs enough opposition to stop this law.

    Its attacking the principles and foundations of innovation and creativity.

  11. Laurel L. Russwurm says:

    Half and Half
    Half the problem is that they are summarily changing the rules of property ownership. Had they been up front and RENTED IP to us none of this would have been necessary. Of course, had we known we were only renting we would not have been willing to pay “purchase” prices.

    The other half is that the Canadian Government is employed by Canadian citizens. Not the American Government or American corporations. Perhaps there needs to be some RCMP investigation into Canadian Government financing?

  12. The media are using the Tory 'key words' says:

    corporate media support it – I’m shocked
    watching Global BC TV and the noon news presenter (Randene Neill) used the term ‘modernization’ when describing the new © bill – a Conservative public affairs win

  13. Gary Cisholm says:

    “Does this mean Torrent downloads are illegal now in Canada ?”

    torrents are not illegal in any form.. The content received on the torrent in the end may be copyright or illegally distributed.

  14. All I see in this = Canadian DMCA
    If the government chooses the US based ban on circumvention, it spells the exact same as a rule in the current (and broken) DMCA. Sure, they state benefits for all content creators… But in the end, who gets hurt the most? Us! The consumers!

    Case in point:
    Say little Johnny boy likes *insert movie title here* on DVD but wants it on his iPod touch. There is no Digital Copy with this film on DVD so he can only rip the DVD and convert it. With this new law, just using any 1 special conversion utility could get him in huge trouble and land him before the courts. After all, DVDs have CSS digital locks, and by just converting to iPod, there was a decryption process to get it to encode to an iPod format.

  15. guy
    Okay, my biggest problem with all this, is that the Americans have had laws like this and it ended up with them having cheap PVR’s, cheap online movie/tv show purchasing capabilities, cheap online mp3 stores, and Hulu (online free HD TV). ALmost NONE of which have come to Canada yet. I will accept this law if the industry can promise that all these cheap american online media outlets come to Canada!!! Media in canada is grossly overpriced, especially compared to the USA. We cant even get TiVo’s here, we cant rent with netflix, cant get hulu (what we do have to replace hulu sucks bad), no cheap online mp3 store, itunes costs more, xbox live costs more, the list goes on. So everyone with their “its illegal, and immoral to download blah blah blah” can shut the hell up. Obviously you make waay more money than I do, because I damned well can’t afford a “reasonable” ammount of media on my salary.

  16. Chris Brand says:

    This should annoy every immigrant
    I can’t watch the DVDs I bought in the UK on the DVD player I bought in Canada without bypassing the region encoding. Presumably the Tories plan to make it illegal for me to do this.
    So much for property rights.

  17. Andy Chalk says:

    Response from the Government
    Like a good citizen concerned about copyright in Canada, I’ve written to Ministers Clement and Moore expressing my concerns about this law and how the US experience with the DMCA should be all the evidence we need that harsh, heavy-handed copyright laws are absolutely the wrong approach to take. And I was, unsurprisingly, studiously ignored until today, when I received a “form email” thanking me for my correspondence regarding copyright policy.

    “We are pleased to inform you that the Government of Canada has introduced legislation to modernize the Copyright Act, bringing it up to date with the advances of the digital age,” it says. “This legislation will bring Canada in line with international standards and promote homegrown innovation and creativity. It is a fair, balanced, and common-sense approach, respecting both the rights of creators and the interests of consumers in a modern marketplace. The federal government is working to secure Canada’s place in the digital economy and to promote a more prosperous and competitive country.”

    It goes on for awhile. And it leaves me wondering why I bothered. Clearly the consultations, the email campaigns and all the rest of it were just theater. Our government – “our” government, which is becoming increasingly difficult to say without irony – is for some reason determined to make this happen regardless of what we say. What’s left but to simply accept that we will become criminals, indeed to embrace it?

  18. Rob Gagnon says:

    Beyond this
    I would also like to to remind people of the stealth attempt to alter 100 years of copyright/IP law concepts by the RIAA. A copyright, a patent or a trademark is a “monopoly” granted by the crown to a person or entity so they can exclusively enjoy the fruits of the product. The QUID PRO QUO was that they had to spend their $ on defense of it (CIVIL). The Conservatives, helped by American Lobby, are changing this is small , supposedly unconnected manners (some died on the order papers but will be re-introduced by this government in stages).

    a) Copyright will be a crime, not a civil matter. This means the state (taxpayer) now eats the cost of pursuit. Wow. This is the biggest concept since the invention of copyright but nobody seems to care.
    b) Warrant-less access to records of ISPs to pursue copyright infringement. Funny, if you raped and murdered 50 people (like Picton) they have to get a warrant to find DNA or get records, but if you download a movie. .whoa.. hold on there. And giving law enforcement warrant-less access won’t ever be abused.. Ever .. right? Cops never get divorced and governments never get police to do bad things.
    c) Privacy law loses to corporate interest: Right now ISPs can refuse to honor requests for users information. Not after these provisions, so personal privacy is gone, if there’s “belief” you are infringing.
    d) ISPs must monitor communications (email to/from) and store traffic sources (sites visited). In the UK they added your “Friends” on social media. When it’s not copyright, its terrorism.
    e) Border services (customs officers) can inspect laptops and other devices for copyrighted materials on arrival (even Canucks). And how would they know it was or wasn’t copyrighted? Oh, and while where looking for that , oh hey, look at all that porn!

    I own an ISP and we get requests all the time from American companies to shut down customer websites because they “allege” copyright infringement of content. When we ask them for a judgment from a court that proves it, they say “we don’t have to provide proof” you have to take it down first. Then they don’t understand when we say “no we don’t we are in Canada”. So, if this happens, we’ll have to take down a website if someone “alleges” infringement. What other form of law allowed supposition to be whole basis? Oh, yeah.. witchcraft trials, or Senator Mcarthy, or Guantanamo Bay. Where is the body? What happened to courts and proof and all that good stuff?

    Don’t blame the conservatives alone. The Liberals started down this path because of lobbying (ie. $)and even the NDP love the idea (lobby groups = labour /acting guilds etc). I have to give them credit, the lobby people I mean. They’re good.

    How about all Canadians tell government the following:

    Ok, the companies want tax payers to pay for their monopoly costs (enforcement), then the RIAA and it’s kind must lose their profits from the monopoly and taxpayers get the $.

    You want to know what I do on the iternet? Tough. Go to court and convince a judge. If you find that having to provide some kind of evidence a judge would buy is too high a burden, then we have bigger problems.

    There’s also no provision that the surveillance (what else do you call it)cannot be used for other purposes. Put a tool in a toolbox and it gets used for other stuff. Welcome to the structure of a police state with full on surveillance but without the perception the government is doing it. Make the ISPs do it and the government’s hands are clean. Nice smoke job Ottawa. Nice job.

    And yet, in my heart, I know nobody really cares and all the parties have been influenced by the RIAA jerks. How utterly depressing. Don’t get me wrong, if you rip a DVD and upload it to everyone, you should be boned. You’re a moron. But they should have to prove you did it in court and not spank a whole nation or implement surveillance Hitler or Stalin would have blushed about.