Conclusion of Copyright Debate Leaves Many What Ifs…

The decade-long Canadian copyright reform debate is nearing a conclusion as the government is slated to hold the third and final reading for Bill C-11 this week. My weekly technology law column (Toronto Star version, homepage version) notes that with a majority in both the House of Commons and Senate, the Conservatives are likely to pass the bill before Parliament takes a break for the summer.

The imminent passage of the bill is already being heralded as win for creators, consumers, and businesses. There is certainly much to like – expanded fair dealing, new consumer exceptions, caps on liability to prevent multi-million dollar lawsuits against consumers, and a balanced approach to liability for Internet providers among them. Moreover, the rejection of draconian provisions demanded by some lobby groups such as website blocking or penalizing Internet users with threats of lost access is a positive development.

Yet for many copyright watchers, the bill falls just short, providing a classic example of what could have been…

What if the government had not rejected concerns from groups representing the blind, who warned that the bill’s digital lock rules will make it more difficult for Canadians with perceptual disabilities to access digital content?

What if the government had not rejected requests from leading cable companies such as Rogers and Shaw, who fear that the bill will block their ability to introduce network PVRs into the Canadian market and restrict innovative cloud-based computer services?

What if the government had not rejected requests from the Documentary Organization of Canada for a specific digital lock exception for documentary film making, given that U.S. film makers benefit from such an exception and that Canadians will be placed at a competitive disadvantage?

What if the government had not rejected requests from many Canadian library associations, who argued that new digital inter-library loans provisions are unusable in light of requirements to establish onerous restrictions limiting the use of works?

What if the government had not rejected proposed amendments from NDP, Liberal and Green Party MPs to add flexibility to the digital lock rules so that concerns that the approach trumps fair dealing and education rights could be addressed?

What if the government had not rejected concerns from teachers, who lamented new distance learning provisions that include requirements to destroy lessons 30 days after a course concludes?

What if the government had followed the lead of innovative economies such as South Korea and Israel, which both recently adopted U.S.-style fair use rules that are often credited with forming the copyright engine behind cutting-edge business models?

What if the government had not rejected an amendment to require labeling of digital locks so that consumers would have advance warning of the restrictions that come with the products they purchase?

What if the government had not rejected a proposal from the Canadian Federation for the Humanities and Social Sciences to eliminate crown copyright and give a boost to its open government data initiative?

What if the government had not rejected a plan raised by Project Gutenberg to create a legal safe harbour provision for the use of works where the copyright owner is unknown, thereby increasing digitization of Canadian materials?

What if the government had not rejected the advice of provincial ministers of education who called for an expansion of fair dealing to cover copies for classroom use as is the case in the U.S.?

What if the government had not rejected the Retail Council of Canada’s recommendation to eliminate the iPod tax and thus avoid a hearing later this year on extending the private copying levy to microSD cards?

No bill is ever perfect and Bill C-11 is no exception. Yet as the government touts its success in navigating the challenging copyright waters to pass a bill after multiple false starts, it might temper its enthusiasm by recognizing that provisions that lock out the blind, create disadvantageous barriers for creators and educators, and stifle innovation are not a cause for celebration.

Tags: /


  1. well i guess they have to learn the hard way.

  2. Ashley Zacharias says:

    Sadly, Harper and his cronies will do just fine. It’s the voters who will get the bitter lesson. And a lot of them seem to be slow learners.

  3. What if….
    we didn’t have a CON majority Gov?

  4. If there were no majority, then all of the C11 concerns would have to be addressed, either that or the bill would simply die again due to so many not coming to an agreement.

    The fact that they failed make “copyright reform” pass many times in the past is living proof that its an issue that needs extreme scrutiny, not railroaded through in a matter of months while ignoring all non-conservative amendments like our current government is doing.

    Harper needs to go, somebody find some big scandal please.

  5. What if … Harper’s desire for a southern oil corridor was not greater than his concern for Canadian’s rights?

  6. I guess the question now will be whether or not (or maybe when) the digital lock provisions will be challenged in court?

    I think the provisions preventing people with disabilities from accessing content is probably the easiest vulnerability to approach this from. I honestly think the government would have a pretty hard time defending that provision, and the optics of it would be just terrible. It is entirely possible, however, in that particular case that even if the courts side with them, they could just carve out a specific narrow exemption and leave the rest of the lock provisions intact.

  7. liable
    “new consumer exceptions, caps on liability to prevent multi-million dollar lawsuits against consumers…” could you explain this in more detail? I thought the liability cap was $5000/file – so 200+ users = million dollar lawsuit. If that’s still the case, then it doesn’t sound like it’s going to work.

  8. How would they enforce these online infringement
    laws? I would think it easy to catch someone
    downloading something infringing on a Bitorrent
    client. What about sites like Rapidshare?

    Also, what about Youtube vids? A lot of uploaded
    videos to YT aren’t copyrighted, so I’m assuming
    it would be legal to download them.

  9. @V

    We’d be probably better off. The Conservatives
    are a party that mainly cares for the rich
    and powerful.

    The fear of most Conservative voters I believe,
    is that an NDP federal government would put
    all their funds into social programs. I don’t
    think they’d be that stupid. They’d IMO,
    balance it out evenly between the wealthy
    and non-wealthy, which is the way it really
    should be. It can’t be all for the wealthy
    corporations, and all for the poor and
    disabled either.

    Con voters also I think revert back to the
    Bob Rae ere in the late 80’s, when he was
    premier of Ontario. They forget he came in
    when Ontario was in horrible economical shape.
    A lot of people hated his “Rae” days which
    gave workers a day or two off work, to let
    others get employment on those days off.
    That was a long time ago.

  10. Confounded says:

    Confused about the bottom line
    So what are allowed and not allowed under the proposed Bill?

  11. Anti-Con says:

    Ya I think they can only catch people on bitorrent or P2P programs because that’s where the copyright trolls live but for file lockers or youtube I doubt they can do shit but if Bill C-30 became law then you’re in trouble or any of those American shit bills like SOPA/TPP/ACTA ect…

  12. I thought Bill C-30’s chief supporters shot any chance it had in the head with the remark that people who were against it were supporting child pornographers.

  13. @mark
    Ya and CONS didn’t cheat in election. 😉

    Bill not dead yet!

  14. Jonathon says:

    There is only one last thing we can do
    I am a Lawyer in Calgary, and I have been watching this Bill C-11 very closely. Since there really isnt anyway we can get rid of the government other than to Protest outside the Ottawa Legislature building, which would have to be very massive, around 50% to 60% of the country would have to be there to protest, and also sign a petition for losing Confidence in the Government to govern the Country accordingly to force a new Election.

    For those people that like to download Movies/music/software etc… via Bit torrent, Your only other option is to find someone to hack your Modem, change the IP address and MAC Address to a European address, a little warning though, if you get caught using a hacked modem, your Internet Service Provider will cut you off Permanently, and possibly Sue you for doing this, as bill C-11 doesnt address the hacking of hardware such as a Modem. The only way around this, is to use a modem that has been deactivated from my understanding other than one that is currently activated by your ISP. Just a warning though, Be care if anyone decides to go this route. As a Lawyer, I shouldnt be telling anyone this, but whatever, I am concerned about everyones rights being taken away not just mine.

  15. Ray Saintonge says:

    @ doog
    The big advantage to consumers is that penalties for non-commercial infringement there will no longer be per file, but for a single overall infringement.

  16. Ray Saintonge says:

    Could be worse
    I think that we have gotten as much as we cn expect from this Confusative government. For three centuries copyright has never been an issue with widespread public interest. Suddenly in the last decade that parameter has changed drastically. That came as a big surprise to American politicians during the SOPA debate. Expecting anymore significant changes from the current government is playing with fire.

    Personally, now that I have become manager of, I am quite willing to accept the responsibility for making public certain works for which the owner cannot be found.

  17. @Anti-Con

    Yeah, I think you may be right. Unless the
    file locker sites take down copyrighted content,
    the copyright’s owners are going to have a
    heck’uva time discerning which files on their
    sites are copyrighted,and ones that aren’t.

    Thanks for your info. Sadly, I don’t think
    we’ll see 50-60% of Canada’s population, standing
    out on Parliament Hill, ready to oust the Cons.
    The Conservatives would have to hit everyone,
    rubbing them the wrong way to have this happen.
    Because only a small majority of Canadians
    decided to vote, we’re likely stuck with the

    Don’t think we’ll see any wealthy, corporation
    owners or CEO’s lined up on Parliament Hill.
    It’s ordinary Canadians that are going to suffer
    through the Con regime. And to a millionaire,
    20,000 CDN is pocket change ( the twenty
    grand being the most someone can be sued
    for online infringement).

  18. @ Jonathon

    Another thing is that most people
    wouldn’t be able to afford to fly
    to Ottawa, to protest on Parliament
    Hill. 🙁

  19. ..
    Are we just being paranoid Canadians? Maybe when this bill comes into law it won’t be so bad, other countries with these laws already people still seems to upload pirated stuff and people downloading still just fine off bitorrent and p2p, I see many Americans still using bitorrent and p2p programs.

  20. Anonymau5 says:


    Actually, since cable modems are locked via firmware tools to your ISP, you’d technically be breaking a digital lock on your hardware. It’d be like jailbreaking an iPhone at that point.

    I know, I’d consider myself a professional digital locksmith.

  21. @Beewell

    No, I don’t think we’re being paranoid
    here. Compare our population of 33 million
    to the US’s 300,000,000. And not everyone
    here has access to the net.

    A little easier to catch and make examples
    of us, with our smaller pop.

  22. @Beewell: It’s less about what people will be able to continue to get away with, and more to do with outlawing activities that are actually entirely reasonable, such as format shifting a movie that a person has lawfully acquired to a device that the copyright holder never happened to support (perhaps because they are colluding with another device manufacturer), or possibly even heard of (possibly because it might not have even been invented at the time the work was released). C-11’s digital lock provisions (specifically, the lack of any exceptions that could ever hope to allow for any notion of personal use, particular with digital technologies that might not have been invented yet) are so far removed from what people told the government that they wanted during the copyright consultation held a couple of years ago, that it creates a picture all too clear: the conservatives are wholly uninterested in trying to achieve any actual balance or fairness in this bill, and only wish to cater to the industry. Their so-called “expansion of fair dealing”, which they are quick to point to when accused of the one-sided nature of this bill, and while admittedly a very good thing about the bill, is not generally applicable to works that are connected to high technology, since new works are almost inevitably stored on digital media, and using some form of (even rudimentary) copy protection on most such works is the norm, and not the exception. And so the fair dealing provisions of C-11 will gradually diminish in significance to all but complete irrelevance as newer and better technologies than what we have today get invented. In a nutshell, the conservative’s claim that this bill is even remotely balanced is nothing short of a fabrication of about the same order as asserting that 1+1=73.

  23. @Jonathon
    I don’t think you need to hack your modem, you just need an encrypted connection to a BT friendly proxy service like BTGuard (that’s what Americans do). BTGuard will probably move their servers out of Canada after C-11 is passed. Most of us wouldn’t be having this problem if video/audio on demand was as good as it is in the US. Why innovate when you can litigate.

  24. At the end of the day
    From what I’ve seen, no one is happy with the bill; no one got all of their demands as a result of the compromises that were made.

    Had the government sided completely with the content owners and publishers, then the consumers would be PO’ed. If the government sided completely with the consumers, then the content owners and publishers would be PO’ed.

    At the end of the day, you can’t make everyone happy. The best you can hope for is to craft a bill that as many of the stakeholders can live with as is possible.

  25. Anon-K: But what they’ve crafted with Bill C-11 is terribly one-sided, and not a compromise at all. It could only hope to be viewed as a compromise if we turned back the progress clock about 10 or 15 years, and stayed there. The fact is that in a society where an only ever increasing amount of material is going to be stored digitally, and some (however rudimentary) digital locks are employed as a matter of regular practice or possibly even a designed function of the medium itself, consumers are going to be left with a barely an iota of so-called “fair dealing privileges”.

    A more reasonable compromise, IMO, would be to keep the legal protections for digital locks, but not criminalize consumers who bypass them when the purpose is one that is consistent with fair dealing. Since copyright infringement is illegal anyways, at least this bill does not turn consumers into closet lawbreakers when they do things that they *WILL* want to do, and that would have been perfectly legal if the work they were going to copy did not have some form of digital lock on it. As a consumer does not have any real choice in the variety of materials that are available to them with respect to how many of them use digital locks compared to those that don’t, leaving no allowance for fair dealing based entirely on a decision that the content provider makes is about as far removed as a compromise as you can get.

  26. ….
    Well only way we can get back at them is if we don’t buy any digital lock content and let those companies suffer with no sales from us Canadians, we control these corporate people they don’t control us it’s very simple to defeat these people if we just stopped buying their stuff.

  27. Goodman, while that may certainly sound like a laudable idea (indeed, it is almost the exact same pitch that the conservatives used when people first started objecting to the digital locks provisions of the proposed bill, believing that the free market could determine things singlehandedly), the problem with it is that choice is limited by the availability of content that isn’t digitally locked, which is only going to diminish as time goes on. The only remaining alternatives are to effectively excommunicate oneself from the technological society at large (hardly a desirable goal unless one likes living in perpetual obsolescence), or else to break the law. Take a wild guess which one people are going to do.

    If you guessed the last one, you’re right. Oh, and consider also that, at least traditionally, whenever it is found that too many people are breaking a law, and it is a problem not easily managed, *MORE* laws are created so that it becomes easier to enforce (I refer you to a recently passed law that makes concealing your identity at a riot a crime that carries a 10 year prison term, for just one obvious example ).

    This bill has all kinds of levels of bad news written on it.

  28. the debate continues
    One thing I think many of us are forgetting, is that the days of physical media are numbered, and as online distribution becomes more prominent the issue of digital locks changes to an issue of “archivability”, internet access, and licensing server lifespan. Steam (and others) allows you to archive games, but you require the internet to use them later – so the internet becomes the digital lock (until the servers are gone). The same applies to Netflix (though there’s no archivability, even with internet access to identify you). I think the bigger issues for the long term will be the lack of fair use provisions and the network PVR thing. I also think there needs to be laws requiring more open content licensing, to prevent abusive licensing practices.

  29. Sorta OT, but still on the topic of (C)….
    But did you know we became the America we made fun of for decades overnight?