My weekly technology law column (Ottawa Citizen version, homepage version) notes that for many Canadians, a core concern with the agreement was the possibility that it could severely limit the ability to establish a made-in-Canada approach on copyright and intellectual property policy. Indeed, NDP Digital Affairs Critic Charlie Angus raised the issue in the House of Commons last year, noting that ACTA could undermine domestic policy.
Industry Minister Tony Clement responded by assuring Canadians that “the ACTA negotiations are in fact subservient to any legislation that is put forward in the House.” Clement’s response was certainly true as a legal matter, yet from a practical perspective there was little doubt that any new Canadian legislation would be designed to be ACTA compliant.
When Clement and Canadian Heritage Minister James Moore introduced Bill C-32, the Canadian copyright bill, last June, it seemed likely that compliance with ACTA was one of the unstated goals. In fact, C-32’s digital lock provisions, which education, consumer, and business groups have criticized as being unnecessarily restrictive, may have been crafted with ACTA in mind.
With ACTA now public and near complete, Canadian officials may want to revisit C-32’s approach. While the U.S. initially envisioned using ACTA to export its digital lock legal system to other countries, the final result are far more flexible requirements. The result is a Canadian bill that is much more restrictive than ACTA mandates and one that could be easily amended to address public concerns and still be compliant with the new treaty.
Both Bill C-32 and the early ACTA drafts adopted a restrictive approach to digital locks that effectively required broad legal protection against virtually any attempt to circumvent technological protection measures (often referred to as picking a digital lock). These restrictions extend well beyond instances where someone may be engaged in commercial copyright infringement and include consumers seeking to access foreign-bought DVDs, making a backup copy of an e-book, transferring music from a copy-protected CD to their iPod, or jailbreaking a cellphone to install software programs of their choice.
The near-final ACTA is much more flexible, however. It now requires “adequate legal protection and effective legal remedies” against circumventing digital locks, but references to access controls, such as those used on DVDs, have been removed. Moreover, ACTA now expressly permits a broad range of exceptions, including standard limitations to copyright such as fair use.
The flexible approach to digital locks within ACTA is consistent with the laws in many ACTA countries. For example, Switzerland and New Zealand permit circumvention of digital locks for legal purposes, Denmark and Japan apply their rules solely to copy-controls (access controls are excluded), and Italy permits circumvention for personal use in some circumstances. In fact, given recent changes in U.S. law that allow circumvention of DVDs for some non-commercial purposes and the jailbreaking of cellphones, Bill C-32 would establish one of the most restrictive, anti-consumer digital lock rules in the world.
The pressure to amend Bill C-32’s digital lock rules has been building – all three opposition parties have voiced support for doing so – and now the conclusion of the ACTA negotiations provide yet another reason for striking a new balance that provides legal protection for digital locks and ensures that consumer rights are not eliminated in the process.
will be upheld by the US with the same enthusia (deliberate misspelling there) as it holds to it’s OTHRE treaties.
it’s a jungle out there and it’s NOT dirt they throw. If the conservatives didn’t have their heads shoved so far up the US hinnie+wallet, something OTHER than political realities might filter thru in their legislation.
dinosaurs trying to legislate PI again, I’m afraid.
Our governemnt is so far up the US’ “hinnie” it can almost grab on to the RIAA’s ankles.
I’m not holding out and have no great hope that C-32 will see any useful reforms before being passed in to law.
A side question: priority of ACTA over legislation
Tony Clement said “the ACTA negotiations are in fact subservient to any legislation that is put forward in the House.”
I’m surprised: I understood that one’s constitution is the highest law, and that binding international agreements came second, before national law. Is that not the case in Canada, or is Mr. Clement engaging in (over-)simplification?
Clement’s response was certainly true as a legal matter, yet from a practical perspective there was little doubt that any new Canadian legislation would be designed to be ACTA compliant.
Made in Canada, eh?
How is it made in Canada if we’re going to blindly follow everybody else? How about this for being unique: Abolish copyright! We haven’t enforced it online in fifteen years and culture is making record profits. It’ll create a dangerous underground, make criminals of a majority of Canadians, and stall the cultural revolution that copying had allowed all of us to enjoy for free. Not to mention that it’ll have to end anonymity; no more whistleblowers. No more open public wi-fi either, you’ll need government ID to use the Net anywhere.
No more privacy; your ISP will have to have the keys to read your email. This isn’t the future we want. Come on people. STOP THIS BILL!!!
Grab the ring …
Minsters Moore and Clement have a face saving opportunity to amend Bill C-32’s digital lock provisions in light of the direction that ACTA has gone. It would be antithesis to their current behavior but the right thing to do none the less. Let’s hope for insight, wisdom and common sense to prevail in those hallowed halls.
Boothie: abolishing copyright wouldn’t help matters at all… for without it there would be no legal framework to prohibit somebody, say a large company, from taking credit for somebody else’s works and profiting from them while cutting out the creator entirely, where the creator may not have enough economic pull to do likewise to the larger company. Abolishing copying as criminal simply where there is no commerce doesn’t work either, because a company could, perhaps, give away a competitor’s works for free, thereby voiding any apparent commercial intent on their part, but the company could still be gaining notoriety that should be due to the creator, or may be giving it away so as to try to cut off the creator’s revenue stream, and again… without copyright, the creator would have no legal avenue of recourse.
If, however, you are suggesting that nobody who writes books, makes movies or music, or writes software should ever be paid for their work, well… then most of what I’ve said above wouldn’t be an issue, but it doesn’t really jive with reality.
I don’t think so, Mark
This bill isn’t about keeping large companies from taking advantage of helpless creators, nobody would believe that for a minute. Nor do we really need this bill so that people will write books or make music or movies. None of these have shown any sign of slowing down since the Internet made private copying an everyday activity, nor do any of the studies suggest so either. It’s all about keeping the power and money at the top, which is where the Internet is such a big threat. And this kind of bill UNDOES the Internet, making it centralized instead of peer-to-peer. It’s a difference most people don’t understand, but those that do will tell you it’s epochal.
Here is a important article that you could consider reading…
@Boothie: “This bill isn’t about keeping large companies from taking advantage of helpless creators[…]”.
Agreed. Let’s not forget that it was strongly influenced by exactly those companies.
@Mark: “If, however, you are suggesting that nobody who writes books, makes movies or music, or writes software should ever be paid for their work, well… then most of what I’ve said above wouldn’t be an issue, but it doesn’t really jive with reality.”
Mark, the only category really affected would be writers, since their only media of distribution is “copies”. For the other categories there is the “live performance” way of doing things (or providing “services” or “support” for software, see the open source / free models that work).
Sure you could distribute *records* of a performance of an artist, but the live show still needs the original artist. Unless you fancy seeing Mr. Henderson performing in lieux of Lady Gaga in a rip-off show. (actually that should be cool lol)
Michael, you’re making it sound as though ACTA is a “done deal”
All the ACTA participants went home without a signed agreement. They aren’t going to get together again, and there are what sounds like irreconcilable differences.
The Mexican senate said they wouldn’t approve it, which may not be binding, but according to StopActaNow (via techdirt) even if the president signs ACTA it can not receive full force of Mexican Law without Senate approval.
The UK is unlikely to sign it either because they want to protect Parmasan and Champagne (and if we;re locking everything up anyway, doesn’t that make perfect sense?
Shouldn’t that take it out of play?
Or is the expectation that all the parties will go home, swallow their pride and cave and sign it anyway? What gives?
RE:Laurel L. Russwurm
Good point, though I thought Michael may have been doing a “hope for the best, expect the worse” approach here. But good point nonetheless
I just clicked over from another site and figured I should take a look around. Like what I see so now I’m following you. Look forward to checking out your some of your posts again.
I love it when socialists post stuff
When are you guys going to learn that socialism doesn’t work? A mixed economy is fine, with some socialist leanings, but every single socialist system has failed – do you guys just think they were doing it wrong? You think when you do it, you’ll get it right?
The right to protect your intellectual property is fundamental. We don’t all want to live in a socialist utopia, because it wouldn’t be one anyway. As my wife says, socialism would work if it weren’t for the people.