Government To Impose Time Allocation on Copyright Debate

The government yesterday gave notice of time allocation on the Bill C-11 debate, which will cut short the debate over the copyright bill. The move does not come as a surprise, given the willingness to use time allocation for other bills and the Conservatives’ consistent position that it will not further amend the bill. As I’ve stated repeatedly, there is much to like in Bill C-11 including expanded fair dealing, new consumer exceptions, new rights for user generated content, the notice-and-notice approach for ISPs, and the a cap on non-commercial statutory damages (this came up during the House of Commons debate as Conservative MP Chris Alexander quoted my comment on some of the balanced provisions but omitted the criticism on digital locks). Moreover, the decision to reject demands for website blocking, notice-and-takedown, an iPod tax, and disclosure of subscriber information suggest that the bill could have been considerably worse.

However, the decision to leave the digital lock rules unchanged remains the bill’s biggest flaw and given the widespread opposition to the approach makes a mockery of Canadian Heritage Minister James Moore’s insistence that the bill reflects the public support. Yesterday, Moore defended the approach:

With regard to digital locks, the legislation would maintain fidelity within the spirit and intent of the WIPO treaties, which is that the government does not impose digital locks or TPMs on anything. We are respecting the rights of those who wish to protect their own creations with digital measures if they choose to. This is about empowering citizens, creators, those who invest in software, video games, movies and television shows. This is about protecting their right to protect themselves from those who would steal from them. This is not about the government imposing anything. This is about respecting international law, respecting WIPO and respecting those who wish to protect themselves from those who would steal from them. It is a pretty simple concept.

Meanwhile, Conservative MP Robert Goguen argued that “if we do not have locks, it will wipe out the industry.”

Both comments demand a response. As Moore surely knows, the Bill C-11 approach on digital locks goes far beyond the requirements needed to respect international law or comply with WIPO. There are dozens of countries that have implemented digital lock rules with more flexibility than the Canadian approach. Further, a review of the creation of the WIPO Internet treaties demonstrates that a more flexible approach is wholly consistent with their spirit and intent. As for claims that no locks will wipe out the industry, note that Canadian digital music sales have now grown faster than U.S. sales for the past six consecutive years, all without digital lock legislation.

The reality is that the digital lock rules were overwhelmingly opposed as part of the 2009 national copyright consultation and generated strong opposition from opposition political parties, business groups, creator associations, consumer groups, and education representatives.  During the committee process both the NDP and Liberals proposed numerous amendments to the digital lock rules, all of which were defeated. Yesterday, the Green Party’s Elizabeth May proposed further amendments (May cited me in a tweet on the proposed amendments, but my help on the digital lock rules was largely limited to pointing to my public submission to the Bill C-32 committee). Those amendments are also likely to be defeated, creating yet one more lost opportunity to amend a bill that seems destined to pass in much the same form as when it was introduced in June 2010.

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  1. pat donovan says:

    equal treatment
    just as an interesting aside, harper put the same amount of money into investigating chartites that oppose him as into pollution cleanup on the great lakes.

    NOW? ‘nuf said. Big Momma S’mother’s day present, eh?


  2. The government may not be imposing any requirement for digital locks, and allegedly allowing the consumer to choose whether or not to buy digitally locked works, but by having the provisions that they are, a side effect of the legislation (I don’t want to get into any debate about whether it’s intentional or not) is that they will have created additional incentive to utilize digital locks in the future, so that publishers can reap some of the benefits of their additional protection. Because more companies are likely to be using digital locks, this will result in a marked drop in the availability of unprotected works, and the so-called “freedom of choice” that the customer has to buy unprotected works is, unavoidably, limited by that availability. The fair use provisions in the bill will go virtually unused in the future as the number of unprotected works continues to asymptotically dwindle. People will, meanwhile, simply ignore the digital lock provisions of C-11 when it is convenient for them, and will privately decrypt copies of works that they have for their own use, at the very least, and the government has even actively stated that this sort of activity will go unpunished.

    C-11 could have been radically improved with just two changes: 1) an exception to the circumvention prohibitions that allows circumventing digital locks, even without permission from the copyright holder, when the purpose of the circumvention is for the personal and private use of the person circumventing, and 2) not outlawing circumvention tools that have a demonstrably legal use, including application of the above exception. Those changes would have given the lawmakers all of the exact same protections that they are going to have anyways, but would not make people into lawbreakers the instant they decide they, for example, want to transfer a movie they legally acquired onto a type of device that the publisher had never heard of, when the publisher only gave permission to transfer it to, for example, an iPad.

  3. We’ll circumvent anyways
    Effectively all this bill will do is criminalize something that Canadians will continue do to regardless of the legislation. Some knowingly and many not. Obviously it’s better to fight this upfront but that looks like a lost cause. We really need a legislative review process that looks at enacted legislation over time to see if the desired effect is created. All we do is introduce new laws and never remove any. In 50 years, we’ll have so much legislation that most of what you do will be criminalized but practically unenforceable.

  4. James Plotkin says:

    Mark hit on something very important. There isn’t anything inherently bad about digital locks. The bad part is how the anti-circumvention provisions trump almost all of the user rights in the bill (to my understanding, the Youtube exception is safe although this may have been a drafting oversight…).

    Mark’s last point is especially important. The reason why digital locks rules must be flexible is because producers of content just don’t know how people are going to use their content anymore.

    This may be scary to some…but anyone who’s read Lawrence Lessig knows that the market remixes everything these days. That’s why the best tools are the ones that are most flexible allowing people to develop on them (cough…Android vs. iphone…)

  5. RE: James Plotkin
    “There isn’t anything inherently bad about digital locks.”

    Of course there is. They are inherently incompatible with a user’s right to use the property they have bought. Having open standards and computing where the user is in control and knows what is going on means that DRM cannot be utlized. See for more info.

  6. Stewie Carper says:

    … If the opposition would spend less time inhibiting the lawfully elected government, they wouldn’t be suffering so badly in the polls.

  7. Tony Mallpear says:

    The problem with this attitude is that ignores the 60% of Canadians who voted _against_ the Harper government – the Harper administration should be working with Canadians, listen to their concerns, pass bills in the _citizen’s interest_ instead of persecuting their voter base.

    Bill C-11 is inherently flawed – it turns generations of Canadians into _criminals_ for lawfully doing what they choose with their lawfully obtained property. If simply breaking locks becomes a crime, many will opt to illegally obtain copies – with no locks to break.

    The Harper administration should focus less on criminalizing Canadians and focus on making the country better – for ordinary citizens, not just the corporate interests that are so openly courted by the Harper Administration.

  8. Anonymous Coward says:

    How to read the previous comments
    Read Stewie’s comment in a high pitched tone, with wheezing inserted at the end of each sentence. Add a bit of arrogance, and the illusion is complete – you won’t be able to tell that it isn’t Stevie!

    Read Tony’s comment in a deep voice, taking as small a pause as you can between sentences.

  9. This government will not last forever
    This government will not last forever, so it’s time to look beyond it. This legislation is not set in stone; its digital lock provisions can be overturned in the future.

    It’s time to focus on the viable opposition parties (those would be the NDP and Liberals) and ensure that copyright becomes an key plank in both of their future platforms.

  10. Russell McOrmond says:

    Protecting Owners Rights
    It is sad that the Conservatives don’t seem to realize (or pretend to be dumb?) that the locks we are really talking about are on devices which neither the copyright holders or the device manufacturers property. They are legalizing a form of property rights infringement that will be far more harmful on the Canadian economy than any amount of copyright infringement could be.

  11. ….
    How is it possible they would know if you purchased or not the DVD or MP3 you transferred to your device? Police really going to raid your house to see if you purchased it or not?

  12. Dave: I’d like to hope you’re right, but historically, once bills such as these are passed, it is much more difficult to get them repealed, or even modified, even when a different party than the one that passed it has taken the helm. I expect there will be a host of higher priorities for the next governing party of Canada than this bill, and I do not think it is realistic to hope to see a future party dismantle it anytime soon. By the time it might be something they could have gotten around to, I expect most people will have forgotten about it anyways and there will still be more urgent matters.

  13. @noname: they wouldn’t…. of course. The conservatives have even said that people aren’t going to held accountable for “private circumvention” anyways. Of course, the irony behind this is that the act will still be against the law, so one could theoretically still be punished for it, if somebody did something that drew attention to themselves.

    All this policy does, however, is create a government that actively endorses a nation of closet lawbreaking. It is, of course, the very height of hypocrisy.

  14. Russell McOrmond says:

    Anything wrong wrong with digital locks?
    James: “There isn’t anything inherently bad about digital locks.”

    If you own what is being locked, then they are legitimate. If you don’t own what is being locked, then what you are doing is infringing the owners rights and that activity should be illegal.

    In the context of copyright, the lock on content can’t “make decisions” and thus isn’t really related. The lock on devices is an infringing lock, and should be illegal. So yes, I believe there is something inherently wrong with the abuse of digital locks in the context of copyright.

  15. Anarchist Philanthropist says:

    Here’s the solution
    In Canada any piece of software, video, song, picture or anything else irrelevant to who made it or where it came from has a 1 year copyright lifespan. This way the owners make their profit, and companies can stop trying to force governments to make up stupid laws that turn every day ordinary Canadians into criminals.

  16. Royal Assent
    Do you guys see this passing before summer break?

  17. Unprotected Content
    “The fair use provisions in the bill will go virtually unused in the future as the number of unprotected works continues to asymptotically dwindle.”

    People seem to forget that the ONLY content that, generally, is currently unprotected is music…that will change. As a general rule, ALL BluRays, a vast majority of DVDs, games and eBooks currently carry digital locks and will have NO fair use rights under C-11. That is a HUGE section of culture lost to us. Granted, the locks will generally be ignored on the personal level in the comfort of your own home. I know I have no intention to change my habits. The implications are far more devastating for industry and especially education. Personally, I think the digital locks rules will effectively kill innovative media industries in Canada. Upstarts just won’t start and giants will take their business elsewhere to less regulation-encumbered counties.

    Canada is already many years behind the rest of the world in Internet technology and media delivery, C-11 ensures we stay there.

  18. Chris Brand says:

    Well, I’m going shopping
    Unfortunately, this government has given me little choice. I already own a bunch of DVDs that I bought in Europe. If they’re going to make it illegal for me to play them here in Canada (because I’d have to bypass the region encoding to do so, and that would be circumventing an access control), I may as well go the whole hog and buy DVD ripping software while I still can.

    Of course it would be cheaper and easier to just download everything (and the product is better – no unskippable ads or warnings about how the FBI is coming to get you). Not sure whether I’m there yet.

    I honestly never expected a conservative government to effectively take away my (right to use my) private property.

  19. Proterty
    “I honestly never expected a conservative government to effectively take away my (right to use my) private property.”

    And “property” is the key word there. “Property” rights fall under provincial jurisdiction, so even after C-11 passes, there is still a hope that the digital locks rules will be challenged in the SCC on constitutional grounds.

    Better go out and get a spare region-free player while you still can though…I know I did.

  20. @IamME: “People seem to forget that the ONLY content that, generally, is currently unprotected is music…that will change. As a general rule, ALL BluRays, a vast majority of DVDs, games and eBooks currently carry digital locks and will have NO fair use rights under C-11. ”

    That was my whole point. As newer technologies surface, the older ones, which might not use digital locks, will slowly but inexorably fade away. This limits the so-called “freedom” that the conservatives say that consumers will continue to have, and the net result is that almost every Canadian that uses technology will, at some point, become a criminal, simply to enjoy perfectly fair and reason personal use rights that would have been entirely legal if the publisher had simply not chosen to use a digital lock (a decision that the consumer is not party to, and the consumer is again, limited in choice to what the publishers actually offer).

  21. dvd player
    Is region free players going to be illegal?

  22. Anonymous says:

    My bags are packed
    I’m coming to Ottawa for the protest Professor Geist. I’m just waiting for you to tell us where and when.

  23. ..
    In the US people are still downloading illegally and I even see websites still up from US that upload illegal stuff. If a website has illegal stuff on it but the person who host the sites doesn’t upload the files himself other people do, is that considered ok with this bill because from my understanding in other countries it’s ok.

  24. @Gthang
    Yes, region free players will be illegal, as will out-of-region disks and the importation of said disks. Under the Berne Convention, the content might not be illegal, say some obscure Chinese TV show not available here, but the region-6 DVD that it might be on will be.

    I’ve raised concerns this could be deemed discriminatory against our large immigrant population, but those concerns fell on deaf ears. We have a CON MP, so I expected nothing less than full dismissal.

  25. “In the US people are still downloading illegally”
    HAHAHHA This made me laugh like crazy!! Pick ANY well seeded English spoken/printed torrent…ANY!!!…and over 80% of the peers will be from the US. I’ve tested numerous times trying to validate their claims in that Special 301 report. Try it…movies, TV shows, books, comic books, etc. The US is lying to the world about their piracy rates.

  26. DRM-free
    Although they have stated that they are not legislating mandatory digital locks, and that citizens may choose to purchase (or refrain from purchasing) products with digital locks, I am not seeing anything stating that a consumer may convert a DRMed storage medium to non-DRM. The entire body of flash drive manufacturers is integrating DRM into all flash memory. I neither need, nor want, a lock on this commonplace storage medium. It will increase the cost, and is an option that does not serve me. Why do I need DRM in my digital camera? Why do I need DRM to take in Creative Commons media?

    Yet, as far as I can see, there is nothing in this bill forcing manufacturers of DRMed digital storage to integrate the capacity to remove an undesirable DRM technology from a device which does not necessarily need it. A blanket imposition of permanent digital locks does not serve the consumer in any personal use; the ability to remove that option (as a citizen’s prerogative) must be also be legislated, to protect against malicious corporate behaviour on such a broad-ranging control mechanism.

  27. Is MP Robert Goguen incredibly ignorant, illogical or just short sighted…..
    Meanwhile, Conservative MP Robert Goguen argued that “if we do not have locks, it will wipe out the industry.”
    If anything, history has shown that digital locks will hurt sales of electronic media ‘wiping out the industry’ even quicker. Why any industry should receive special treatment in the first place, such as the enactment of unjust laws designed to limit competition and maintain the status quo, boggles the mind. History has shown that new industries displace old ones that can not or will not change. (Darwin observed this in biology and called it evolution). Artificial barriers to change such as monopolies are bad, yet elected officials continue to promote them, so one can only conclude that these individuals do not have a basic understanding of economics or they are more interested in paying off an incessant lobby group than doing what is right and just.

  28. @IamME
    lol. Wow what a joke! Is it like this in the US, do they not have region free DVD players?

  29. @Gthang
    I’m not sure, but I don’t think so. You can find all kinds on eBay for sale in the US. If they were illegal, SOMEONE would be suing eBay or, at the very least, filing a DMCA taketown, because if one thing is absolute, Americans LOVE to sue people.

    In its digital lock approach C-11 is vastly more strict than DMCA, so strict as to be ridiculous.

  30. I guess it was either notice and take down or these strict digital locks it seems.

  31. Dwight Williams says:

    This is unwelcome news, agreed.

    Goguen is wrong, of course. As is the digital locks portion of the legislation.

  32. @JL
    They’re both evil and extremely prone to corporate abuse, but I think notice and take down less so.

    I personally like the approach that was taken in Brazil (I think it was Brazil). As I understand it, they essentially have a very strict copyright regime, but also have a well established fair use system. So, it goes both ways, if someone is found to be infringing copyright, the book is thrown at them, BUT, if a copyright holder is found to be circumventing fair use with overly strict locks or whatever means, they suffer equally severe consequences. This was things are kept balanced.

    There is no balance at all in C-11…they simply removed the consumer side of the scale altogether.

  33. Crockett says:

    Dean Del Mastro’s “enlightening” analogy

    Thank you Minister Del Mastro for finally giving us a clear analogy on copyright, licensing & rights that all of us can understand.

    Who knew that socks could shift into shoes? Can they shift back to socks? I must have been hiding under a rock as this has to be the best invention since sliced peanut butter! Imagine, not having to take off my footwear but just shift into sock mode, where can I get a pair?

    Seriously, for someone who has been a loud voice on the Bill C-11 review committee you have shown an ineptitude on the subject that even I thought you were above. With such stellar though and expertise behind this legislation I can only say that it holds no weight of legitimacy past the paper it was printed on.

    I suspect it will just contribute to the further decline of copyright in the eyes of the public and be a detractor rather than protector of creative rights. You and your colleagues are dinosaurs in action, and the asteroid is coming 😀

  34. end user says:


    What a fucking moron. Hes talking about returning the socks and switching them for shoes while where talking about buying the socks and having the company tell us we can’t wear them with red shoes, just the blue ones and we can’t share the socks with other people in the house as they have to license their own socks.

  35. Anti-Harper
    Over 20,000 petitions have been sent within 3 days. Lets aim for 100,000!!!
    Its easy and takes 30 seconds.
    Send a message to all the party leaders and your MP demanding a full public inquiry and real consequences for election fraud:

    No Bill should be passed with this Harper Gov.!

  36. Not Tony says:

    They ramped it down our collective throats 149 to 135!/tonyclementcpc/status/202563430840942592
    Bill C-11, Copyright Modernization Act, passes the Commons, 149 to 135. #cdnpoli #roft

    🙁 Damn them! Damn them all to hell!

  37. Crockett says:

    @Tony “Bill C-11, Copyright Modernization Act, passes the Commons, 149 to 135”

    Now we can collectively ignore it and the government pledges to not enforce it … Yippee. Wasn’t that a good effort.

  38. Another law to ignore.

    You’d think the pointy heads would realize that passing laws that probably 90%+ of the population are against would be futile?

  39. “Bill C-11, Copyright Modernization Act, passes the Commons, 149 to 135.”

    I wonder what reason the US will use to keep us on the Special 301 now. It amazes me the complete disregard for the Canadian people this government has!!! Oh well, I guess I’ll have to start ripping my DVDs in protest…DVD Decrypter here I come. I just bought a 9TB NAS that’s screaming to be filled. 😛

    In all seriousness though, this is isn’t going to affect the average person hardly at all. Ripping/decryption tools are easily available, a vast majority of the population considers format/time shifting (God I hate that terminology) completely fair use and has been ingrained in to our culture (By the industry itself) since the 80’s with the introduction of the VCR and cassette recorder…both, of which were going to be the end of their respective industries. Our kids are growing up in a culture where it’s not only easy to perform these tasks…it’s expected. PVRs, iTunes, Netflix, Hulu, etc., etc., etc. While there aren’t many services here in Canada, there are abroad and they’re easily accessed with easily attained free proxies. The industry has lost this battle. Like candle makers and type-writer manufacturers…it’s time to evolve. If ever a legislation, or at least a portion of legislation, was doom to fail, this is it. It will be a colossal failure, which so many unintended consequences…much like DMCA and HADOPI.

    The worst consequence this bill will have though, will be the chilling affect it will have have on the digital media industry in Canada. We’re probably 10 years behind most of the developed world. In another 10 years, we probably won’t be much further ahead. This is a sad day for Canada

  40. Rick Johnson says:

    Darn it
    Darn it is what I say because you can’t say what I really want to say out loud about this. DOn’t like what is happening and think it’s just #$%)($*)#(_ how often Government To Impose Time Allocation Debates is being done.

  41. A vote for this sort of digital lock protection is a vote against justice, logic and democracy and those guys hardly ever agree on anything!

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