The Bill C-32 Debate Begins: Locks, Levies & Misinformation on Fair Dealing

Second reading of Bill C-32 kicked off yesterday with hours of discussion from MPs from all political parties.  Six months after the bill was first introduced, the debate offered the first opportunity to get a sense of where the various parties stand and which issues will be most contentious when the committee tasked with review the bill begins hearings within the next couple of weeks (coverage from PostMedia).

The issue at the top of the Liberal and NDP agenda is digital locks.  Both parties (along with the Bloc) expressed concern with the digital lock approach in Bill C-32.  The Liberals repeatedly emphasized the need for consumers to have the right to circumvent for format shifting, backup copies, and other consumer activities.  This would require changes to both the consumer provisions and the general anti-circumvention provision, since both create barriers to these basic consumer activities.  Given that the U.S. now allows circumvention of DVDs for some non-commercial purposes, this seems like a reasonable compromise.  The NDP placed the spotlight on the impact of locks on education and teaching, describing the exceptions that require destruction of teaching materials 30 days after the end of the course as a digital book burning

The NDP and Bloc both remain focused on extending the private copying levy.  Despite their support, the Conservatives remain strongly opposed to such a proposal and the Liberals do not appear to be particularly supportive.  The issue will no doubt be raised at committee, but the likelihood of inclusion within the bill appears pretty slim.

The other big story of the day was the remarkable misinformation associated with the fair dealing reform in Bill C-32.  Months of lobbying have clearly had an impact – many MPs appeared to think that the reforms would provide education with a licence to copy anything and everything with no compensation.  This is a complete misunderstanding of fair dealing and the potential inclusion of the education as a new category.

Canadian fair dealing analysis involves a two-part test.  First, does the use (or dealing) qualify for one of the fair dealing exceptions.  Second, if it does qualify, is the use itself fair.  It is critical to note that extension of fair dealing to education in Bill C-32 only affects the first part of the test.  In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.  The Supreme Court of Canada has identified six non-exhaustive factors to assist a court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. What this means is that we already have limits on the meaning of fair dealing, including fair dealing within education.  The mere fact that education is a category will not alter the need for the use to be fair and to meet the six part test articulated by the Supreme Court.

There were certainly other issues raised during the debate – statutory damages reform was surprisingly raised several times (does anyone really think that millions in potential liability is an appropriate figure for non-commercial file sharing?) – but my guess is that these will be the big three issues as the debate continues and the hearing unfolds.


  1. And those limits are apparently okay, but at the same time they are not. Yeah the FUD surrounding the education provision is rather interesting. Though if someone can explain how the current bill allows schools to copy entire text books given the courts tests, I’m all ears.

    As for the part on statutory damages, only those who think that $5000 is not a lot of money.

    Nice to see about the digital locks provision though.

  2. @Michael: “Given that the U.S. now allows circumvention of DVDs for some non-commercial purposes, this seems like a reasonable compromise.”

    This should read “Given that even the U.S. …”

    Otherwise it sounds like you’re promoting U.S. as the good example to follow. Which they are not.


  3. You mean: LOCKS, LEVIES & LIES

  4. Someone might want to get a word out to the Ottawa Citizen:

    Looks like AC’s misinformation has spread to where it will spread further…

    I hate to think how many people would read that article and take it at face value

  5. ..
    url got pwned. trying again:

    Just put the lines together, I guess…

  6. Hendrik Boom says:

    The private copying levy needs to be changed so that:

    only media that are primarily used for storing otherwise unpaid copyrighted materials are taxed.

    Payments actually get to the creators of these works instead of being eaten up by overhead.

    Minor artists are not ignored as being not worth the trouble.

    All art forms, even including computer programs, are eligible.

    Without this, it is a farce.

  7. hmmmm, sounds like Parliament might be insisting on clearer legislative guidance within the bill.

    I love democracy.

  8. @Degan
    I personally think that the people clamouring for that are still going to shoot themselves in the foot with it. But hey, if they want to, they want to.

  9. AFM Now CFM
    The American Federation of Musician just announced a name change to Canadian Federation of Musicians. I wonder if the 18% of Canadian membership can now vote with a majority on public policy objectives, or will it still be still the 73,000 American Musicians that still have control over this organizations policy objectives.

    IMO they should have never been invited to the table during the copyright consultations.

  10. “There were certainly other issues raised during the debate – statutory damages reform was surprisingly raised several times (does anyone really think that millions in potential liability is an appropriate figure for non-commercial file sharing?) – but my guess is that these will be the big three issues as the debate continues and the hearing unfolds.”

    Before, my arguement…a bit of background on me. Both my wife and I came from very bottom earning families (Both families living on disability pension earning less than $10,000/year) in one of the poorest areas in the country and we would have been considered “poor” by any statistics. We amassed around $80,000 in student loans between us getting our education, which will likely be closer to $130,000 after it’s all paid off…nothing was ever given to us and we weren’t raised with a silver spoon in our mouth. Still, huge debt with an education and good job is better than no debt, no education and a cr4ppy job!!! In those days I downloaded EVERYTHING (Over dial-up no less) because I could not afford to buy anything. A $5000 fine in those days would have been devestating and I’d probably still be stuck home living with my mother. I’m not trying to justify the downloading, only giving a bit of background.

    Now, 12 years later, and I’m not gloating, which is why I gave the history, but just using my family as an example, between myself and my wife, according to the last Stats-Can report on average household incomes, we sit in the top 5% of Canadians for houshold income. Luckily, these day, because of the choices we made, we can aford to buy a majority of our entertainment. And you know what, $5000 is still a lot of money for us and would make us uncomfortabe for quite some time. The cost of living in Canada has far outpaced salaries….and our parents are still making less than $10,000/year. I can’t imagine what a $5000 fine would do to someone like them or a young family who are just getting by or living check to check, arguably, those who are most likely to pirate…those who can’t aford to buy it….all to give some fat-a$$ exec another Ferarri in his garage.

    Their arguement that “$5000 is a license to steal” is obscene and perhaps a reflection of their own obscene salaries. Living in their penthouses, driving around in their limos, they’ve lost touch with reality. Perhaps moreso due to my background, and the “trolling” lawsuits in the US and UK, these people make me sick and I hold NO respect for them. These people will get theirs in the end and we all know which end that is. Those who so callously and openly exploit the populous rarely have a happy ending. I don’t know ANYONE who intentionally has $5000 just to throw away, especially not on cr4ppy quality downloaded material. I suspect that most who have that kind of money to throw away are also much more fussy about the quality of their entertainment and are quite willing to pay for it.

  11. @IanME: “Their arguement that “$5000 is a license to steal” is obscene….”

    Well on the same lines I could argue that the whole copyright law is a license for them to steal. From artists, creators and consumers.


  12. sad little dolts
    sorry to tell you guys the truth , problem is we are slaves , we saved the slaves from america and these people are our masters. get use to doing as you are told fast. you will do what harpush says , or you will loose your home , you think this is up for debate ???

  13. Six part test?

    How can you talk about a use for an allowable purpose – especially a proposed one – having to meet “the six part test” if the fairness factors are in the court’s view “non-exhaustive”?

  14. Private Copying Levy
    I disagreed with it back in ’97 and I still disagree with it. I could “almost” agree with it on mp3 players due to the sole propietary nature of the device. I never agreed with it and still don’t on CDs and DVD since I primarily use such media for data storage and not media playback. So, say we’re stuck with the levy, what assurance do I have that artists/companies that use TPMs do NOT get payment out this slush fund? The problem with MP3 players, of course, is that it’s only a ‘temporary’ copy. They go on and on and on about how “copies have value”. NO, NO, NO NO!!! Unless you’re selling them, copies do NOT have value, the original (Physical or purchased on-line) has value, the device has value. Le’s use a bit of logical reasoning here…

    1) The copy, ESPECIALLY on an MP3 player, is nothing more than something for temporary use that will ultimately be deleted and replaced with something newer.
    2) In theory, one would NOT delete nor destroy something that is valuable.
    3) The only logical conclusion, through logical induction, is that the copy does not have value. Only the original remains and has value!!

    They are trying to brainwash us in to thinking that just because we have a CD and move it to an MP3 player that that copy should be payed for….when we’ve already bought the CD. There is a great phase that works here. “Like H3LL”!!! If I already own something on CD or DVD or a paid-for download I should not have to pay anything because I copied it to a portable player. A pure and simple money grab.

    It’s a give and take here, in the digital age, they might be losing levy revenue, but we as consumers are also losing out. We lose the right of first sale, the ability to sell unwanted media!!! So music or movies we buy on-line, we’re stuck with forever.

  15. Laurel L. Russwurm says:

    legislative legerdemain?

    perhaps that’s why @mpjamesmoore spoke about making ‘piracy’ illegal when he speechified on the glories of the supposed ‘copyright modernization act’, when in fact the word ‘piracy’ is not even included in Bill C-32.

    If it were included, the nature of legislation would forced them to define it. This way, our Heritage Minister can rail against piracy and law abiding people don’t have to know that what he’s talking about is what they do.

  16. Sandy Crawley says:

    With respect, Professor, if the introduction of “education” does not pose a threat to the current regime of collective licensing for use in K-12 and post-secondary education, why has the Council of Education Ministers lobbied so diligently for it’s inclusion while at the same time refusing to maintain their collective licensing arrangements, pray tell?

  17. Michael Geist says:

    @Sandy Crawley
    Sorry, but the two developments are only tangentially related. The decision to move away from the AC tariff proposal has little to do with fair dealing. Rather, it is a function of the overbroad AC demands which – probably for the first time – brought copyright to the attention of senior executives within Canadian education. In light of the proposal for a massive increase in costs, they took a closer look at what they already pay for (via licenced databases), open access, and existing fair dealing (research and private study). With that analysis in hand, many are arriving at the conclusion (correct in my view) that they can obtain the necessary permissions without the need for the AC licence. That is not a function of not paying, but rather paying differently. It also has nothing to do with potential legislative changes in C-32.

    As for the inclusion of education within the categories of fair dealing, there are already many educational uses covered by fair dealing. This merely fills a few gaps. More importantly, the inclusion does not mean that anything goes. Rather, any copying will still require a fairness analysis. Once again, don’t take my word for it – the Federal Court of Appeal said precisely the same thing in concluding that copying within education that qualified as a category of fair dealing still required compensation. The court further noted that the C-32 reform would not change this analysis.

    So, with respect, why do groups continue to mislead MPs into thinking that there are no limits to fair dealing when the law, the courts, and AC itself (in its Supreme Court brief) clearly state that there are?


  18. Who Me?
    How can the Federal Government charge a premium (tax) on recordable media i.e.: hard drives recordable DVDs and CDs, floppy discs etc. with the express purpose of compensating artists for unpaid downloading and copying. To then arrest or press charges against a downloader or copier would be double jeopardy. A smart lawyer would tear the government apart. I’m watching the C-32 Debate on TV and I see their is little argument that is really tangible. If you want to control downloading then perhaps you should eliminate the World Wide Web, otherwise take produces or distributors to task for music and movies that are so excessively expensive to buy and ask them why prices have not fallen, as was promised by recording labels many years ago. Once the government goes after downloader’s do you honestly believe that prices will go down. The Competition Bureau should get involved and find out why prices have not come down. The industry has brought on its’ own problems because of greed and lack of true competition.
    Tom Salken