During yesterday’s debate, several Conservative MPs emphasized that the copyright bill is one of the most consulted pieces of legislation in recent memory. For example, Canadian Heritage Minister James Moore stated “this is my 12th year as a member of Parliament and I can tell her that except for the Liberal government’s Bill C-2, the response to 9/11, this legislation will have had more consideration at a stand-alone legislative committee and parliamentary and public consideration with all of the tens of thousands of submissions we received from Canadians in person and in writing and the consultations we did across the country before we drafted the bill.”
The government is right when it says there has been wide consultation (a recap of the 2009 copyright consultation here). The question is whether it has taken the public comments into account and conducted a full analysis of the implications of its current proposal. There is reason to believe that it has not.
Q. Liberal MP Geoff Regan said during debate of Bill C-11 that â€œgovernment members have apparently been saying that it would be okay to break the new law and to circumvent digital locks. The member for Calgary Centre wrote: â€˜If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a lawsuit against the consumer, due to legal fees and time involved.’ In other words, he is suggesting not to worry about this, that the law can be broken and nothing would happen, that really we are encouraging consumers to break the law. What does that say about the Conservatives’ position, that they are telling Canadians to break this law that they have not passed yet?â€ What’s your response?
A. â€œLike any country, Canada has laws that all citizens must respect and obey. Bill C-11 sets out the exclusive rights of creators, including musicians, with respect to their artistic creations. Enforcing these rights in a given instance, however, is a private legal matter on which the government cannot speculate.â€
While governments often refrain from commenting on active litigation that is before the courts, they must surely anticipate the likely effects of their legislative proposals. Indeed, that is precisely what the government is doing when it repeatedly claims (as it did yesterday) that the bill “make Canada an attractive location for creators, innovators and investors.”
In order to determine whether the digital lock rules found in Bill C-11 strike the right balance the government must speculate – typically described as anticipate or project – how it will be enforced. The overwhelming opposition to the current draft – which includes the opposition parties, business groups, retailers, artists groups, consumers, education associations, and thousands of Canadians – is based on analysis about how the rules as drafted will be enforced. After months of debate, there is no longer any question that the current draft goes far beyond international requirements. There is no question that the 2009 copyright consultation came out strongly against the approach in the current draft and there is no doubt that the majority of what the Bill C-32 committee heard was similarly critical of the digital lock rules. In recent days, the government has heard from over 50,000 Canadians repeating their concern with the proposed approach.
If Paradis and Canadian Heritage Minister James Moore have not speculated on how their digital lock rules could enforced, perhaps it is because they don’t need to. They know – or ought to know – that the following scenarios are some of the possible outcomes:
- a Canadian documentary film maker wants to use a video clip found in a commercial DVD within their film. The clip would qualify as fair dealing under the law. They circumvent the digital lock on the DVD in order to use the clip. When the film maker seeks to distribute the film or screen it at a film festival, they require insurance against infringement claims. They are unable to obtain the insurance – and therefore unable to distribute or screen their film – because the circumvention of the DVD lock (which include both access and copy controls) violated Canadian law. U.S. documentary film makers do not face the same restriction.
- a television journalist wants to use a clip found on a DVD for a news report. The piece is a controversial one and is reviewed by a lawyer. The lawyer refuses to approve the use of the clip since it similarly requires circumvention of a DVD lock. While news reporting is a fair dealing category, the circumvention would still constitute infringement.
- a Canadian media researcher plans a major new project that involves using a wide range of media clips. The researcher completes a full grant proposal to support the research. Before submitting the grant, they are required to sign an ethics document confirming that the research does not violate any Canadian laws. The researcher cannot sign the document and cannot apply for the grant since the circumvention would violate the Bill C-11 digital lock rules.
- a B.C. school district opts for open source software for all workstations throughout local schools. The school licenses educational DVDs for classroom purposes. The licence includes a provision that the school will comply will all applicable copyright laws. The school cannot use the DVDs on the workstations without circumventing the DVD locks in violation of the law and licence.
- a Canadian computer science researcher wants to circumvent digital locks on several computer programs for encryption research purposes. The researcher does not alert the owner of the programs, since the program owner has threatened other researchers who have tried to do the same thing with a lawsuit. The company follows up with a lawsuit against the Canadian researcher, noting that the researcher did not qualify for the encryption research exception in Bill C-11 by failing to provide advance notice of the circumvention.
- a Canadian family receives a package of DVDs from relatives in Japan. The DVDs are region coded and will not play on a Canadian DVD player. They try to find a service that will circumvent the digital lock so they can view the movies. No local service will do it since the law prohibits circumvention services.
- a non-profit group representing visually impaired Canadians offers services circumventing digital locks on electronic books to improve access for their members. A leading publisher threatens a lawsuit if the service continues, arguing that service unduly impairs the technological protection measure found on the e-book in violation of Bill C-11.
- a privacy group is concerned with the surreptitious capture of personal information by consumer electronics companies. The group creates a software program that will circumvent the digital lock on the products to identify whether personal information is being collected. A leading consumer electronics company sues to block distribution of the product, arguing that the privacy exception does not apply where the service unduly impairs the technological protection measure.
These are not mere hypotheticals. A detailed review of the U.S. DMCA provisions – which are very similar to those found in Canada – has identified numerous examples where the law chilled freedom of expression and scientific research, jeopardized fair use, and impeded competition and innovation. Moreover, many involve situations where the user does not have the “choice” to not purchase a digitally-locked product, but rather find that the digital lock, when coupled with the Bill C-11 approach, impedes legitimate, legal activity. These examples are in addition to the many consumer rights – format shifting, time shifting, backup copies, etc. – which are all inapplicable anytime a digital lock is present.
This is precisely the kind of “speculation” that many groups have conducted in reaching the conclusion that the Bill C-11 digital lock rules do not strike the right balance. The proposed solution from virtually all the critics is not to dismiss legal protection for digital locks, but rather link protection to copyright infringement. That approach would solve all of the above scenarios. If enacted in its current form, the law will have an impact on the legitimate activities of millions and attempts to falsely assuage Canadians that these provisions are mostly innocuous is simply inaccurate.