Another Copyright Bill Hits the Scrap Heap: Taking Stock of Canadian Digital Law and Policy Reform

Later today, it appears certain that the government will lose a non-confidence motion, spelling the end to the current Parliament and sending Canada into yet another election. There have been some legislative and policy successes since 2008 including the Anti-Spam law (C-28), a law involving ISPs and child pornography (C-22), and the recent launch of open government and open data initiatives.  In addition, the government re-appointed Privacy Commissioner of Canada Jennifer Stoddart for another three year term, supported the entry of Globalive into the Canadian wireless market, and pressured the CRTC to revisit its policy on usage based billing.

Notwithstanding these developments, the focus will undoubtedly shine on the bills and policies that were started but not completed. These include:

  • the digital economy strategy
  • a policy on foreign investment in telecommunications
  • a policy on foreign ownership in book publishing and distribution
  • a policy on the forthcoming wireless spectrum auction
  • Bill C-29, a bill to reform PIPEDA
  • Bill C-32, the copyright reform bill
  • Bills C-50, 51, 52, the lawful access bills
  • Bill C-393, the private members bill to facilitate access to generic medicines in Africa

The future for each of these initiatives varies.

A digital economy strategy (which could incorporate the other policies) will be introduced sooner or later, perhaps sooner if the political parties use the election campaign to outline their vision of what the policy should look like. Bill C-393 will always face an uphill battle given opposition from pharmaceutical companies, but the broad range of Canadians who spoke out on the issue are unlikely to stop pursuing reform.  Lawful access never dies and will undoubtedly be reintroduced by a future government with little enthusiasm.

The privacy bill is probably dead. PIPEDA faces another statutorily-mandated review this year, so any future government is likely to wait for the results of that review before re-introducing privacy reform.  Given that it took four years to get this bill, that does not bode well for meaningful privacy reform in the foreseeable future.

Many people may welcome the demise of the copyright bill, but I must admit that I’m not one of them. This is the third copyright bill to have hit the scrap heap, following in the footsteps of Bills C-60 and C-61, neither of which made it past first reading. Bill C-32 is obviously the closest Canada has come to digital copyright reform – a full public consultation in 2009, a bill in 2010, and several months of committee hearings into 2011. 

I always described the bill as flawed but fixable and that remained my sense after the many committee witnesses. The committee process did provide some valuable information – confirmation of the effectiveness of the notice-and-notice system, the broad support for a digital lock exception for non-infringing purposes (including consumer groups, education, libraries, retailers, and telecom companies), and the value of codifying the Supreme Court of Canada’s fair dealing test into the Copyright Act to address uncertainty concerns. No matter the outcome of the upcoming election, copyright reform will quickly be back on the legislative agenda (though likely not until late 2011), hopefully in amended form that builds on the good in C-32 and the lessons learned through months of hearings and public feedback.


  1. There was good in C-32, however I was always highly sceptical about whether they would end up keeping enough of the good and getting rid of enough of the bad to actually make it better then having no new law at all. Put me in the camp of the ones glad to see this Bill die.

  2. We hardly knew you …
    I can only hope that a new government (likely conservative) will take some of the things learned this time around and fold them into new legislation … rather than giving such a large ear to ‘foreign’ interests.

    An effort to address these issues in tandem would also be helpful.

  3. So now the Supreme Court will legislate copyright, and ultimately define the digital economy in Canada
    After three abortive attempts to modernize copyright in a way that responds to Canadian concerns, Parliament has dropped the ball, yet again. With the Supreme Court agreeing to hear a number of digital copyright cases, they will be the ones setting the stage for the Digital Economy in Canada, and it won’t be based on what ordinary Canadian citizens need or want, it will be based on which one of several hyper-polarized positions special interest positions the court disagrees least with.

    I’m frustrated to say the least.

  4. We may not have seen the end of Bill C-32.
    If the Cons get a majority government (God help
    us all if that happens) our returning PM, newly
    crowned dictator will pass whatever bill his
    party wishes, without any force at all from
    the opposition. This scares me a little. Harper
    clamored for more power in trying to get his own
    way, despite being in a minority govt.

    Don’t think the rich will suffer under a Con majority.
    If you’re poor, disabled, worry about the environment just a bit, a non wealthy senior/pensioner, then I’d advise you to think twice before voting for UnConspassionate party.

  5. Perhaps Del Maestro, Clement and Moore can form a support group, hold hands and sing cumbaya until they are blue in the face.

    Good riddance to C-32, and this disfunctional parliament, and if the Cons get a majority, I am moving to Russia, which will surely seem open, friendly and liberal compared to the nightmare that Canada will become.

  6. Ding Dong
    Ding Dong the Bill is dead! Which old bill? The Wicked Bill. Ding Dong C-32 is dead!

  7. UBB?
    So where do we stand on UBB now that the government has fallen and the CRTC doesn’t have a knife to its throat on the issue?

  8. No confidence here either
    Even though there were a few good things that came out of Ottawa in the last couple years the fact that the government resisted transparency and democratic process trumps everything. Although I liked much of what it offered I’m happy to see C-32 die, it like our government had fatal flaws; C-32 had digital locks and our government had lies, deception, and callous.

  9. Wayne Borean says:

    You are wrong Michael
    Many people may welcome the demise of the copyright bill, but I must admit that I’m not one of them. This is the third copyright bill to have hit the scrap heap, following in the footsteps of Bills C-60 and C-61, neither of which made it past first reading. Bill C-32 is obviously the closest Canada has come to digital copyright reform – a full public consultation in 2009, a bill in 2010, and several months of committee hearings into 2011.

    Bill C-32, like Bill C-60 and Bill C-61 before was driven by the agenda of dying corporations, not the agenda of the artists who actually create the works that we all know and love. The death of Bill C-32, and the additional visibility that the issues surrounding copyright and artistic business models have gained in the community mean that artists are now taking a proactive interest.

    To help artists to drive the agenda, and to avoid the mistake to building a new copyright law around the outdated WIPO treaties, I’ve registered the website and will have it up and running late tonight. I’m inviting creators to come and join in the conversation about how to lobby the government for a Copyright Act that serves the creators, and not the leeches who live off us.

    Wayne aka The Mad Hatter

    PS: I will be cross posting this to the Balanced Copyright Facebook Group, where I imagine it will cause a bit of a flap.

  10. Wayne Borean says:

    Hum, you site doesn’t support
    The first paragraph above was a quote from Michael, however since the site doesn’t support the BLOCKQUOTE metatag it doesn’t show up properly.

    Wayne aka The Mad Hatter

  11. Election time again
    So, here we go again; when the dust settles, we’ll likely have either the Conservatives or the Liberals holding the reins, possibly by majority, and the Bloq with the whip. Weren’t all three of these parties basically in favour of C-32, anyway? It seems to me that whichever party charges the horses, some variant on C-32 is due. Call me cynical, but my gut tells me that the CRIA/RIAA/MPAA is going to view this as an opportunity to try and push an even more restrictive bill through, and if it’s a minority, they’ll get it in early, while Canadians are “sick of elections”.

  12. pat donovan says:

    while the bills might be dead, montizing monopolies isn’t.

    even the supreme court will admit to the legality of admin law; (the not inserted will be not withstanding (the bill of rights)

    natural foods, anyone? Expired patents and new monopolies?
    international treaties offing unlimited power to border guards?

    with g-20 apps of force of law.

    we have a LONG ways to go yet.


  13. What happens…?
    to the notice-and-notice model if some form of lawful access does pass into law, allowing law enforcement to access the personal identifying information of ISP subscribers without a search warrant?

    Ideas anyone?

  14. Ask the federal government/
    You are asking us to try and influence our dim-whit uneducated politicians about liberalizing, speeding up, and more affordable – wow!!!! Our country are run by MORONS and IMBECILES – my only recourse is to leave this beautiful country run by damn fools and idiots who can only think greedy – insidiously corrupt and inept politicians. Nothing good will happen until they make it so for themselves. QED

  15. @Dev “my only recourse is to leave this beautiful country run by damn fools and idiots”

    I’m curious … where would you go?

  16. Reform without purpose
    Has anyone considered that fact that we don’t have any official documents stating the purpose of copyright law in Canada (please let me know if we do have a stated purpose and I’ve just missed it somewhere)? The US has the purpose right in their constitution:
    “The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    Maybe the reason that we seem unable to agree on new copyright law is because we haven’t stated what it’s supposed to accomplish?

  17. The fight isn’t over yet….
    C32 may be gone, but this war isn’t over yet.

    In fact, I don’t even think we won this battle.

    If we had won this battle, the compromises that were proposed to C32 similar to what Michael Geist had been previously proposing would have been accepted, and a modified C32 would have been codified into law.

    Instead, what we have is yet another copyright reform bill that tried to unduly restrict the consumer lying in a recycling bin, and all that is going to happen now is that the same people who drafted C32 are going to come together and draft something else. I count no less than 3 times that this has occurred now since the turn of the century.

    C32 was, to be frank, the best copyright reform bill that they’ve come up with so far… its only real problems lay in the fact that it was too anti-consumer, and these problems were severe enough that the bill could not work as is. I have very little hope that their next attempt, and there will be another one, I have no doubt, will actually be an improvement.

  18. Greta Doyle says:

    My opinions on Bill C-32. Although Bill C-32 had flaws it was the beginning of much needed copyright reform in Canada. It was the third bill since 2005 that was trying to implement the WIPO Treaties in Canada. A few points to consider….

    Yes, making the fair dealing rights in clause 22 subject to whether or not a Technological Protection Measure was in place on a the work was not exactly well thought out by the legislatures. Most digital media such as DVDs and Blu-Ray discs have TPMs in place. The Blu-Ray disc format was actually chosen over HD DVD because supposedly it had unbreakable encoding, but this did not prevent it from being hacked in 2007. The user generated provision is an important protection for many creating derivative works but fails to recognize the integrity of original artists by making it applicable to all publically available works. Many derivative based works would be seen as infringing upon the moral rights of artists and it is particularly unclear as how it would interact with section 14.1 of the Copyright Act. However, in recognizing the areas where fair dealing needs to be expanded the parliament was taking note of the change in society and the way they now interact with the products they buy.

    Furthermore, Bill C-32 actually made Canadian’s position on peer to peer file sharing clear by expanding secondary infringement making it an infringement to provide through the internet or other digital networks, a service primarily designed for enabling acts of copyright infringement. This is only if actual infringement results from use of that service though. This ensures protection for artists and creators that their works will not be posted all over the internet and clarifies the indecision that the courts have in relation to peer to peer file sharing networks. This is paramount for creators as protection of their work ensures that innovation will continue to occur, which is very important and beneficial to society as well.

    In not reforming the current Copyright Act, the Canadian government is forcing users to infringe copyrights. There are limited choices that they can make to act legally, making back-up copies of DVDs and creating mash-ups and most derivative works would be seen as infringing activities under current law. More so, even parodies given the restrictive approach the courts have taken are possibly within the scope of infringing copyright. This lack of reform is giving industry greater control and forcing them to take copyright protection in their own hands. This is seen in the mandatory copying allowance on Blu-Ray discs that force producers to let consumers copy content in limited situations. However, only one copy is free and in most cases this will be inadequate as people may want a full resolution copy that they can store on an external hard drive and several scaled down versions for different portable devices. By allowing for the industry to provide their own versions of fair dealing which will obviously protect their own interests, Canada is failing to provide for users.

    Quick note this is just a basic overview of a few of the problems and advantages that Bill C-32 and is meant as brief response.