Canadian Bar Association Speaks Out On Bill C-32

The Canadian Bar Association, which represents 37,000 lawyers, law professors, and students from across the country, has released an important submission on Bill C-32.  The submission, which was approved as a public statement by both the National Intellectual Property and the Privacy and Access Law Sections of the CBA, does a nice job setting out the debate over Bill C-32 (I was once a member of the CBA’s Copyright Policy section but was not involved in the drafting of the Bill C-32 document).

The CBA submission is notable as a strong counter to the frequent attempts to characterize critics of digital lock rules or other elements of the bill as “anti-copyright.” Far from the claims that there is near unanimity in support of DMCA-style reforms, the CBA submission confirms that the legal experts who work on copyright issues on a daily basis are deeply divided on many issues. In fact, the CBA submission opens by noting:

The Intellectual Property and the Privacy and Access Law Sections of the Canadian Bar Association (CBA Sections) are pleased to comment on Bill C-32, the Copyright Modernization Act. Copyright is a controversial subject and engages the interests of a wide cross-section of Canadians. This includes copyright owners, who run the gamut from large entertainment conglomerates to self-employed artists, and copyright users, who include everyone from broadcasting corporations to teenagers downloading music in their parents’ basements. The copyright bar, similarly, holds a multiplicity of perspectives on copyright.

The digital lock rules (anti-circumvention) comprise the largest portion of the submission. On the issue of banning the distribution of tools that can be used to circumvent digital locks (which is not required by the WIPO Internet treaties), the CBA notes:

some members of the Working Group had concerns about the ban on devices, especially considering that many devices that can be used to circumvent TPMs have other legitimate uses, and may be used to protect individual privacy rights. Many believe that banning devices makes no more sense than banning photocopiers, VCRs or computers – all of which can be used for both legitimate and illegitimate purposes. These members of the Working Group believe that the law should not operate so as to ban any device that has a substantial non-infringing use. This is a doctrine long recognized in both copyright and patent law.

The CBA also notes concerns with the inclusion of both access and copy controls:

While Bill C-32 embraces the broader concept of “access control,” some members of the Working Group believe that this is not required by the WIPO Internet Treaties and it would be counterproductive and harmful to Canadians. They question, for example, why legitimate DVDs and BlueRay discs purchased abroad or sent as gifts should not be accessible in Canada, since the restriction has clearly negative effects on cultural diversity and even freedom of expression.

The submission also identifies many concerns with proposed digital lock exceptions, including shortcoming with the exceptions for privacy, research, and perceptual disabilities. Moreover, it points to possible additional exceptions including:

Fair dealing − The anti-circumvention provision does not contain an express exception for fair dealing, so Canadians who circumvent a TPM for research, private study, news reporting, or criticism (or parody, satire, or education, if the changes to fair dealing are enacted) may violate the law even if their intended use of the copyrighted work is otherwise permitted.

Personal uses − Many Canadians believe they should have the right to fair, personal use of their property without the law painting them as infringers. Distinguishing between commercial and personal uses of copyrighted materials would have the benefit of not only preserving personal uses, but also placing the obligation on those that use TPMs to ensure that the public retains its rights. Note, however, that some non-commercial uses are already protected under copyright law.

The submission also addresses issues such as fair dealing, ISP liability, and statutory damages.  On fair dealing, the submission notes that:

Some even believed that certain changes to the exceptions do not go far enough. In addition, some members of the Working Group believe that recent U.S. appellate case law and rulings by the U.S. Librarian of Congress show that Bill C-32 would leave Canadians short of users’ fair dealing rights in comparison to their American counterparts, including the overall right to legally circumvent for legitimate, fair dealing purposes.

There is much more here – it deserves a wide read and an opportunity for discussion before the Bill C-32 legislative committee.  As the leading legal organization in Canada, the CBA has produced an important document that affirms the wide range of views on copyright reform within the practicing bar.  It should put an end to claims about “anti-copyright” critics and provide MPs with a better sense of the varying perspectives from experts who deal with copyright issues for clients from a wide range of sectors.

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  1. CBA’s on the Ball
    The CBA proves beyond a shadow of a doubt that the law is neither black nor white, but a sea of grey shades. It is reasonable for restrictions to exist, so long as those restrictions respect personal and private use. The CBA’s statement reflects the reality. Their calm, level-headed reasoning resonates with the average Canadian. It is a pity that their views won’t necessarily resonate with the pig-headed administration that seeks to ram this punitive draconian legislation down our collective throats.

  2. It is refreshing to see a position paper that admits all is not clear or equal in this debate. This as opposed some examples of blatant self interest from certain other group collective statements.

    On another point, did anyone catch a news brief on Harper’s border security chat with Obama? Point #3 (of three) was a requirement of increasing Canada’s protection for intellectual property. A not so subtle jab to keep the pressure on to pass the legislation on this go around. If Harper gets an itchy election finger though, the Americans are going to throw a bossy fit.

  3. Crockett,

    What, exactly, is wrong with creators expressing their self-interest in the copyright discussion? Where in the joint statement do they hide that they have an important interest in the legislative result?

    And who is surprised that the CBA contains a multiplicity of views on copyright? Swing a dead cat in a room full of lawyers and you’ll hit five different opinions on copyright.

    While we’re all congratulating the CBA for being so even-handed (I agree — it’s a very carefully balanced statement), let’s aklso note that your link to the creator’s joint statement is the very first mention on this blog of that week-old statement.

    Have a look over there on the right —->

    See, the AUCC position paper (Geist-friendly) is mentioned; the CFS paper (Geist-friendly) is also mentioned; there is even a mention of “more Canadians” speaking out on C-32; yet over 600,000 professional creators speak out with a position paper (Geist-doubting) and somehow there is no mention of it.

    I can only guess the ommission of the creator paper has to do with the “pig-headed administration that seeks to ram this punitive draconian legislation down our collective throats.”

  4. As I posted on your site John …
    There is nothing wrong with people posting their opinions .. the more the better.

    I have looked at the “collective voice of creation” and while there are some valid points I would not call it even-handed advice, yet at the same time you often seem to bemoan the apparent one sidedness of the pro-fair use camps.

    Calls coming from a group with vested interests (whichever perspective) by it’s very nature will not have even-handedness as it’s core characteristic. That’s why we need so many different voices on this topic, and creators surely have an important one.

    That being said, I think MG should put a link to the creator groups position paper so we can all have a more informed discussion.

  5. Crockett,

    I bemoan nothing of the sort.

    What offends me is insidious one-sidedness in the guise of even-handedness, and I’ve already stated I’m happy with the CBA document so I must be talking about something else.

    I’m also not a fan of simplistic populism as a substitute for reasoned analysis. For instance, the gathering of one-click memberships based on a vaguely-defined call for “fairness” REALLY offends me, especially when those cheaply obtained “memberships” are referenced in front of legislative committee as though they have some actual authority.

    I’m perfectly happy to have interested parties take and express their sides. That’s the first step to good faith negotiation.

  6. pat donovan says:

    but can they read?
    interesting collection of jurisprudence related treatments…
    but can MPs read.
    By me, THAT’S never been proven.
    counting money, on the other hand…

  7. Yes John, critical thinking does seem in short supply …
    @John “I’m also not a fan of simplistic populism as a substitute for reasoned analysis. For instance, the gathering of one-click memberships based on a vaguely-defined call for “fairness” REALLY offends me”

    Then I assume you must be equally offended, if not more so, at the attempt of 1-2-3 step sign in process that has you on-click an uneditable position paper to the government. Not a lot of independent thought there.

    John, we do not seem to agree most of the time, but on the occasion we do like today. An important issue like this requires more than one click populism wither it be a Facebook membership or sending a prescribed position to your MP.

    In our discussions I try to engage both sides of the debate creating discussion and bolstering understanding. Your views, I think even you would admit, lean heavily to one side of the spectrum so sometimes the counter arguments can swing far in the other direction. Even so the debate is well worth having.

    All opinions are welcome, reasoned ones even more so.

  8. 11? 22?
    What are “case law11” and the “Librarian of Congress22”?

    If only Michael Geist weren’t afraid of his computer and actually could manipulate text properly. Next he could learn to mark it up properly.

  9. @Joe Clark
    … “11? 22?”

    Never saw a problem here, using a variety of browsers. Not since the first time I read it, before there were any comments. Nothing wrong in the source either, at least not now.

    Next time you see what looks like an error, trying doing a “View Page Source” and see if the error is in the source or in your browser rendering.. If it isn’t in the source, then the problem is in your browser.

  10. allowing ‘personal use” ??
    if “personal use” is allowed, “commercial use” will cease to exist.

    What percentage of total use will be paid for once it’s free to use?

    If content creators must share their work freely, the incentive to create more content will diminish.

  11. @Robert White
    Rubbish, just about all the commercial usages we have today will still exist. THe only thing that will change is how those commercial uses are funded.

  12. Robert White says:

    even if some commercial uses remain, no significant sales will take place

  13. @Robert White
    Say goodbye to yesterday Robert.

    When all information CAN be accessible, instantly, today, for 3 cents worth of electricity, our society HAS officially solved one of the biggest obstacles to quality of life that has ever existed: ignorance.

    You would hold all our heads under water to preserve the world of scarcity you grew up in.

    Let it go man.

    “Information” and “property” are oxymorons. If you have an idea, and you share it with me, we BOTH have that idea. You are not hurt from that. If you truly feel like you are hurt by my benefit, you have some hard soul-searching to do. I would hope you wouldn’t harbor that kind of misanthropy if you had a cure for cancer.

    Please, everybody, stop buying artificial scarcity… Change is waiting on us.

    This rant is placed in the public domain.