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The False Link Between C-11’s Digital Lock Rules and Video Game Industry Jobs

Debate resumed on Monday on the copyright bill with the opposition parties citing correspondence from Canadian after Canadian concerned with the digital lock rules found in Bill C-11. Thousands of Canadians have called on the government to adopt compromise legislation that provides legal protection for digital locks but ensures that the copyright balance is retained by linking circumvention to copyright infringement. As I have chronicled in more than 50 daily digital lock postings, this view is shared by business groups, consumer organizations, cultural groups (including the leading performers and publisher associations), education and library representatives, as well as Canada’s leading consumer organization. There is no serious debate about where the overwhelming majority of Canadians that have spoken out on the bill stand.

The task of defending the bill has lately fallen to Paul Calandra, the Parliamentary Secretary for Canadian Heritage. As I posted last month, Calandra has focused on the claim that there is no jurisdiction “where digital locks have been used and the actual availability of content has been reduced.” The argument is a complete red herring as no one has argued C-11 will reduce the availability of content but rather that it will eliminate many of the rights consumers obtain when they purchase that content. 

Calandra has now also turned to the video game industry as a major source of support. Given the fact that writers, performers, publishers, musicians, documentary film makers, and artists have all called for greater balance on digital locks, the government has been left with fewer and fewer creative industries that support its position. On Monday, Calandra repeatedly referenced the video game industry and the prospect of lost jobs as a reason to support restrictive digital lock rules. For example:

I wonder if the member and her party opposite are talking about putting an end to the video gaming industry in this country with weak TPM measures.

Later, Calandara asked an MP:

Could he explain to the House how, in the absence of effective technical protection measures, that industry could continue to flourish in the province of Quebec?

Calandra regularly referenced the 14,000 jobs in the industry and suggested that they would be put at risk with “weak” TPM measures. Given the focus, it is important to examine the evidence that supports claims that jobs are at risk.

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December 14, 2011 20 comments News

Louis C.K.’s DRM-Free Experiment

Comedian Louis C.K. posts on a recent experiment to offer a DRM-free video as a $5 download. The result: $500,000 in revenue and $200,000 in profit in three days.

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December 14, 2011 9 comments News

The Daily Digital Lock Dissenter, Day 51: Canadian Music Creators Coalition

When speaking on Bill C-11 in the House of Commons on Monday, NDP MP Andrew Cash, a musician, noted that several years ago he traveled to Ottawa to talk copyright together with other musicians such as Brendan Canning from the Broken Social Scene and Steven Page from the Barenaked Ladies. The musicians were part of the Canadian Music Creators Coalition, which brought together some of Canada’s best known musicians. In their submission to the 2009 national copyright consultation, they said the following about digital locks:

We believe anti-circumvention measures encourage and support the use of digital locks and litigation against music fans. Thus, we oppose the inclusion of such measures in legislative reform. Copyright laws must accommodate the interests of Canadian music creators. We support our fans’ legitimate interests in having a say in how they enjoy our music, and policy decisions should take this into account. Policies that fail to accommodate such interests should be rejected.

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December 14, 2011 1 comment News

Undue Intervention: Why the CRTC Got It Wrong on Exclusive Content

The CRTC yesterday issued a ruling involving a Telus complaint over Bell’s exclusive rights over NFL and NHL content for its wireless services and its inability to negotiate similar rights for mobile carriage. The Commission found that Bell gave itself an undue preference contrary to its 2009 new media decision and ordered Bell to take steps to ensure that Telus can access the programming on reasonable terms. While there are dangers of undue preferences in the mobile environment and of unfair behaviour arising from the vertical integration, it is hard to see how this case qualifies.

The CRTC analysis involves a two-step process. First, it considers whether an undertaking has given itself a preference or subjected another person to a disadvantage. If it finds a preference, it moves to a second step to determine whether the preference is undue. Note that the burden of demonstrating that the preference was not undue rests with the undertaking that has granted it.

In this case, the Commission found that Bell granted itself a preference by entering into an exclusive contract for NHL and NFL programming. Note that the NFL programming is not something that Bell produces or otherwise owns. There is also no indication that the Bell’s wireless access to the NFL is linked to similar licenses for its broadcasting properties (Bell says the NFL deal was concluded before its purchase of CTV). If this constitutes a preference, then any exclusive contract will seemingly rise to the level of a preference and the party that enters into it may be faced with the burden of demonstrating that it is not an undue preference (which appears to be precisely what the Commission has in mind).

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December 13, 2011 10 comments News

The Daily Digital Lock Dissenter, Day 50: ACTRA

ACTRA, the Alliance of Canadian Cinema, Television and Radio Artists, is the union of more than 22,000 professional performers working in English-language recorded media in Canada including TV, film, radio and digital media. I have disagreed in the past with several its positions on copyright reform, including one member calling mashups morally wrong and a six-part fix that would remove fair dealing reform. ACTRA’s 2009 national copyright consultation submission supported the use of digital locks, but also recognized the need for limits on the legal protections associated with them including the need to ensure that exceptions and limitations are not lost:

The choice of whether or not to use a TPM in connection with controlling access to a copyright protected work or which restricts copyright protected acts rests with rightsholders. Some will choose to use them, others will not. In accordance with the WIPO Treaties, rightsholders should have recourse against persons who deliberately circumvent their TPMs. By the same token, users who have legal access to a work should not be prevented by TPMs from availing themselves of statutory exceptions or limitations. Moreover, legal protection for TPMs should be subject to privacy, interoperability, and encryption research considerations, for example.

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December 13, 2011 1 comment News