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From Rhetoric to Reality: The Key Issues in Bill C-32

This week the Hill Times ran my op-ed (HT version, homepage version) on the key issues in Bill C-32.  The column, based on a post from last week, focuses on digital locks, fair dealing, ISP liability, statutory damages, and the private copying levy. It is posted below.

With the House of Commons back in session, there are indications that Bill C-32, the copyright reform bill, will emerge as a government priority.  Given the rhetoric since its introduction, it seems likely that some will seek to paint critics of the bill as anti-copyright, pirates, or radical extremists.  While the rhetoric may seek to delegitimize consumers and many Canadians vocal on the copyright issue, the reality is that many consumer and education groups have been far more supportive of the bill than proponents such as the music industry.

When C-32 was first introduced, many Canadians acknowledged that the government did a good job compromising on some very contentious issues (ISP liability, fair dealing, consumer provisions, statutory damages) but expressed concern that the bill’s digital lock approach represented a huge flaw that undermined many of the positive steps forward.  That reflects my view as well, since I believe that if a compromise on digital locks can be found, the bill merits broad support.

The most contentious issues in C-32 include:

1.   Digital Lock Provisions (anti-circumvention rules)

The digital lock rules, which are an import from the U.S., are by far the biggest problem with the bill since they effectively trump virtually all other copyright rights (particularly fair dealing and the new consumer exceptions) and extend far beyond what is required to comply with the WIPO Internet treaties.  

In the months since the bill was introduced, it has become apparent that the Canadian proposal is even more restrictive than that found in the U.S., where its law now features exceptions for DVD circumvention in some non-commercial cases and for jailbreaking cellphones. A compromise that provides legal protection for digital locks, but preserves fair dealing and consumer rights is needed.

2.   Fair Dealing Reform

The fair dealing reforms, which add education, parody, and satire to the list of fair dealing categories, represent a reasonable compromise between those seeking a U.S.-style fair use provision and those opposed to new exception categories.  While some claim they will result hundreds of millions of dollars of losses, the reality is far less worrisome. This is because the inclusion of education as a category of fair dealing does not mean that any use for educational purposes qualifies as a fair dealing.  Rather, all uses must still meet the six-part fair dealing test.  The C-32 change only means that education uses can undergo a fair dealing analysis, not that all education uses are now fair dealing.  

Closely related to fair dealing are the new consumer exceptions, including time shifting, format shifting, backup copies, and the so-called “YouTube exception”.  These exceptions reflect reasonable consumer expectations and help encourage new creativity, though suffer from being subject to digital locks.

3.   ISP Liability

Bill C-32 adopts the successful notice-and-notice approach that has been used in Canada on an informal basis for many years.  The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world.  Without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats.  Bill C-32 rightly includes an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners.

4.   Statutory Damages Reform

Bill C-32 contains important provisions that distinguish between commercial and non-commercial infringement for the purposes of statutory damages. Canada is one of the only countries in the world to have a statutory damages provision.  It currently creates the prospect of massive liability – up to $20,000 per infringement – without any evidence of actual loss.  This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for several peer-to-peer file sharing defendants and leaves many with little option but onerous settlement.  Bill C-32 recognizes this problem and creates a still-significant $5,000 cap on liability in non-commercial cases.  

5.   Extending the Private Copying Levy

The fifth major issue involves a change not contained in C-32 – the extension of the private copying levy to cover iPods and other devices.  Unfortunately, previous proposals have raised concerns about the potential for very broad coverage including cellphones and personal computers, the competitive impact on consumer pricing, and the interaction between private copying and digital locks.  Moreover, many proponents of extending the levy are reluctant to acknowledge that doing so should fully legalize non-commercial, personal downloading. Rather, they engage in a policy bait-and-switch where file sharing is used as the basis to obtain the levy extension but then does not legalize the copying for which Canadians will be asked to pay new fees.

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22 Comments

  1. I’m not a huge fan of extending the levies myself. I’d rather that the levies be removed since there are a number of ways the devices the levies will cover are also used for a number of other things as well. About the only way I’d support levies is if they were on devices only meant to be used for one purpose.

    I do want the digital lock provision to be changed. I’ve gotten copy and paste responses back from various contacts that don’t actually answer my concerns about that section. Hopefully it will be changed.

  2. From Rhetoric to Reality….
    …we should remind Mr. Moore that Mrs. Bulte’s political career was considerably shortened by her actions regarding the copyright law.

    To put it in short, the digital locks provisions in C-32 are:

    – not mandated by international treaties
    – not helping artists and creators
    – not effective against
    – annoying legitimate consumers
    – out of the scope of a COPYRIGHT law

    Insist otherwise and it becomes an elections issue.

    Nap.

  3. I really enjoyed the blog

    If I take care not to promote my new blog where I expose my drawings http://www.thesearemydrawings.blogspot.com
    see and comment

    thanks


  4. “Moreover, many proponents of extending the levy are reluctant to acknowledge that doing so should fully legalize non-commercial, personal downloading. Rather, they engage in a policy bait-and-switch where file sharing is used as the basis to obtain the levy extension but then does not legalize the copying for which Canadians will be asked to pay new fees.”

    I’ve said this a number of times, at least in the US, this would be considered money laundering and is a criminal offense. Either kill the levy altogether and make it illegal across the board, which few people will actually adhere to and would ultimately be unenforacible, or extend the levy and make it legal across the board, perhaps not the right approach either, since there is then no incentive to buy the content then. Neither option is ideal, but at least they make sense and would be consistent. How can we expect the people to follow a law which is so convoluted they cannot understand it? This seem to be art form in Canada.

    Over all, with the exception of the Digital Lock Provisions, I think C-32 works well and strikes a good balance. I would like to see the Digital Lock Provisions changed to mimic that of Brazil, where both consumers and copyright holders can be held liable for abusing TPMs.

  5. …also…
    …oh, and not listed here, I fully disagree with the legal enforcement of region coding on DVDs and BD. It creates regional monopolies and limits content one has access to. If you emigrated to Canada from another country, say Polland, Ukraine, Germany, China, Japan, etc., I think it is absolutely rediculous that it should be illegal for you to import DVDs so that you can watch them in your own language and have some expectation that you’ll be able to get hardware to play them. Alternatively, if you’re someone like me, who enjoys obscure Asian and European cinema, much of which is not available here, I should be able to import it. I had a R2 copy of the “Kiyoshi Kurosawa” (No relation to the highly acclaimed director Akira Kurosawa) movie “Kairo” years before it was released here and it only got released here because Hollywood went through a phase of remaking Asian horror movies, this one being remade into “Pulse” with Kristen Bell.


  6. @IamME: “I fully disagree with the legal enforcement of region coding on DVDs and BD”

    Mhhh didn’t Canada sign some WTO treaties about “free trade”? How comes “region coding” is legal? Oh, I see, it’s done by MPAA so it must be legal. If it’s not then we’ll redefine the meaning of words until it is.

    Nap.

  7. c-32
    this bill is as insanely bad as all it precursors.

    It extends corperate property rights FAR beyond anything sane, legal or enforceable. BAD LAW, BAD LAW!

    I do hopr he government of the day crashes and burns LONG before this gets weaseled thru ANY of the houses.

    packrat

  8. RE: IanME
    “since there is then no incentive to buy the content then”

    That position is becoming less and less supported, since recent studies studies just the opposite.

  9. Junji Hiroma says:

    @IamME
    I do like asian movies,games.i have hokuto musou,hokuto no ken,Street fighters generation, hyper street Fighter,sengoku basara X.

    “If you emigrated to Canada from another country, say Polland, Ukraine, Germany, China, Japan, etc., I think it is absolutely rediculous that it should be illegal for you to import DVDs so that you can watch them in your own language and have some expectation that you’ll be able to get hardware to play them. Alternatively, if you’re someone like me, who enjoys obscure Asian and European cinema, much of which is not available here, I should be able to import it.”

    I fully agree,i should be able to import Umineko Naku No Koro Ni Or ________(Any other import game,Anime Or Movie Here)


  10. @IanMe: “Over all, with the exception of the Digital Lock Provisions, I think C-32 works well and strikes a good balance. I would like to see the Digital Lock Provisions changed to mimic that of Brazil, where both consumers and copyright holders can be held liable for abusing TPMs.”

    Agreed. I would like though to see any reference to DRM/TPM removed, as it does not belong to COPYRIGHT law and unnecessarily complicates thing.

    As an example of what happens when laws are bad/overcomplicated, look at this one:

    http://registrar.siu.edu/records/complaw.htm

    Let’s say I go to my teammate’s cubicle to discuss something. I pull my chair there and I move her mouse on the desk to make place for the papers I brought for discussion. Moving the mouse causes her screensaver to stop and Xcel comes in foreground displaying some data.

    Did I commit “computer tampering”? Was it a misdemeanor or a felony?

    Nap.

  11. The blank media levy does not exist to justify or compensate for file sharing. The levy exists to compensate for private copying only, a (currently) perfectly legal activity. However, as C32 would make even private copying illegal wherever digital locks happen to be present, in an age where so much content is stored digitally already, the levy would become taxation without any representation (since the privilege they would be trying to collect the levy for would not be legally allowed to be done in the first place). Not coincidentally, the conservatives have previously expressed an interest in discontinuing the levy. This is wholly unsurprising, considering the last several bills they’ve expressed support for to amend copyright in Canada all effectively outlaw virtually all private copying anyways.

  12. Fun
    I think this looks so much like CRIA fighting against alternate distribution channels:

    http://www.techdirt.com/articles/20100825/11152810773/funeral-directors-want-to-put-monks-in-jail-for-offering-unauthorized-coffins.shtml

    Nap. 🙂

  13. Yes Nap, I think the CRIA will be the “death” of the music industry, as a matter of fact I think they have “buried” it already. I think it must be caused by the moral “decay from inside”. 😉

  14. Interesting BSA Release
    http://www.itworldcanada.com/blogs/ahead/2010/09/18/the-bsa-needs-a-time-machine-not-copyright-reform/53420/

    Quoted from this article…”Some representatives of BSA members have admitted that while their first choice is people payed them money, their second choice is people infringe since they least want people to switch to competing independent software. If you look closely at their legislative suggestions they are also primarily aimed at reducing competition, not reducing infringement.”


  15. @IanME: Problem is …. that leaving apart the “activation” annoyances of commercial stuff, some “open source” software has matured and is now on par or better than the commercial software they compete with.

    As an example, after you deal for a while with something like Photoshop Elements, you would find the Windows version of GIMP to be an absolutely refreshing experience.

    Or, if you like computer programming as a hobby, try Code::Blocks or Lazarus vs. Visual Studio Express.

    So it’s not about money anymore. It’s about quality.

    Nap.

  16. Anarchist Philanthropist says:

    What i’ve decided
    This whole situation is about money. This is about a$$hole$ who are already rich trying to stay rich. I refuse to help them in any way shape or form.

  17. Interesting…
    …reading:

    http://news.yahoo.com/s/ap/20100929/ap_en_ot/us_endangered_digital_recordings

    Do we have any provisions in C-32 to allow for example libraries to make copies for preservation purposes? The american DMCA has.

    Otherwise – there should be a requirement for copyright holders to preserve all the works they have monopoly on. If they can’t or don’t want to, then they are “infringing” and the works should automatically go to public domain.

    Nap.

  18. Quick question
    Interesting to hear this from Google:

    http://yro.slashdot.org/story/10/10/02/2038241/

    but what is even more interesting is the comment that points at Canadian bill C-24.

    We already knew about the banking regulations and a bunch of others, so if the Canadian law is perceived to be better than the US one, including by the US citizens, then why do we have to copy them, especially on such a controversial law as the DMCA?

    Nap.

  19. @Napalm
    No disrespect intended, but remember:

    “The squeaky wheel gets the grease”.

    The US and Canadian pro-draconian copyright group is well organized and funded; they can hire a small army of professional lobbyists to approach not only the current government but also the opposition (important in a minority government to have the opposition on your side) and try to convince them that their POV is the correct one.

    To counter this we need an organization that is at least as well organized and funded, preferably not simply arguing against the CRIA etc position but putting forward change suggestions which at least make the attempt to address the concerns of the IP holders while fighting for the rights of the consumer and demonstrating how these suggestions meet our “obligations” under the treaties that we’ve signed (but have yet to ratify). They need to lobby both government and opposition MPs.

  20. Aaron Walkhouse says:

    Here’s a rather funny critic who claims there’s no copy protection in the bill.
    If he’s a lawyer he sure doesn’t make a strong argument. XD

    http://www.entertainmentmedialawsignal.com/2010/10/articles/copyright/bill-c32-and-digtal-locks-more-grist-for-the-mill/

    I replied, but am not sure they will post my comment:
    ___________________________________________________________________
    Would somebody care to explain the difference between “copy-control
    protection measures” and “Technological Protection Measures” and
    how exactly the bill splits the difference?

    Does not TPM already include all the definitions no matter how they
    are interpreted? Was the term not coined for exactly that purpose?

    Are you sure the politicians think that one doesn’t mean the other?

    If one of the two is not in the bill, how do you explain that?

    Are you hoping to reinterpret the bill after passage so that it
    does something other than intended?
    ___________________________________________________________________

    That “Balanced” Copyright for Canada astroturf site is pure comedy. ;]

  21. Aaron Walkhouse says:

    Here he is.
    http://www.heenanblaikie.com/en/ourTeam/bio?id=680

    Perhaps he his hoping to redefine TPM to his own version?