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New Canadian Copyright Bill C-32: The Good, The Bad, The Ugly, And What To Do About It

As expected, the Canadian government tabled a new copyright bill today. Despite the consultation last summer, rumour has it that Canadian Heritage Minister James Moore and Industry Minister Tony Clement—the two cabinet ministers responsible for copyright (who seemed to understand the new opportunities technology presents)—couldn’t come to an agreement, and the Prime Minister’s Office sided with Moore’s more hard-line approach. Yet, it appears Clement’s influence was not lost. The proposed legislation, Bill C-32, actually contains many good provisions… but strict digital lock restrictions threaten to undo them all.

Fair Dealing—There’s An Exception For That

The current Canadian concept of fair dealing is more limited that the American doctrine of fair use. The Supreme Court has repeatedly ruled that it should be interpreted broadly, but present law restricts fair dealing to just five categories—research, private study, criticism, news reporting, and review. NDP Member of Parliament Charlie Angus had tabled a private member’s bill to introduce flexible fair dealing back in March, but with Moore’s vision winning out over Clement’s, Bill C-32 rejects flexible fair dealing.

But, it does contain a host of new exceptions for parody and satire, education, time shifting, formating shifting, and backup copies. There’s even a new “Non-Commercial User-generated Content” exception (29.21), which would legalize mashups and remixes under certain circumstances.

While the litany of exceptions fails to introduce real flexibility into the law for new innovations, Michael Geist—leading critic of the last, failed copyright bill—still describes this as “a pretty good compromise.” There are those who strongly oppose the uncertainty that comes with flexibility, so maybe the “there’s an exception for that” approach is the best we can hope for right now.

Though not perfect, it’s still a positive development, and definitely an improvement on the past.

Other Good Compromises

Geist notes two other good compromises. As with the last two copyright bills, C-32 would implement a notice-and-notice system for Internet Service Providers to handle copyright infringement allegations, rather than the guilty-until-proven-innocent American notice-and-takedown system, or the insanely disproportionate three-accusations-and-you’re-kicked-off-the-internet approach. Also, a change to the statutory damages provision would finally distinguish between large scale counterfeiting and non-commercial infringement, limiting the latter between $100-$5000 instead of the current $20,000 maximum. While $5000 per infringement is still pretty ridiculous, cutting the maximum down by 75% for non-commercial infringement would be a positive development.

The Downright Terrible: Digital Lock Provisions Undo The Exceptions

The huge loophole in this bill is the approach to anti-circumvention provisions, which would make it illegal to break a digital lock even if what you are doing is otherwise non-infringing. It’s important to understand how this massively undermines any good which might come from additional fair dealing exceptions: if there’s a digital lock, the exceptions are meaningless. Bill C-32’s rigid digital lock provisions undo the exceptions.

  • Want to make a backup copy? There’s an exception for that… unless there’s a digital lock!
  • Want to transfer songs to your iPod? There’s an exception for that… unless there’s a digital lock!
  • Want to make use of copyrighted content in the classroom? There’s an exception for that… unless there’s a digital lock!
  • Want to remix Louis Armstrong with death metal? There’s an exception for that… unless there’s a digital lock!

This has to change. More importantly, it doesn’t have to be this way. Submissions to last summer’s consultation were overwhelmingly opposed to this approach. Other countries have met their international obligations with anti-circumvention provisions that are actually linked to copyright infringement (e.g. New Zealand‘s passed law, India‘s proposed law). With a flexible anti-circumvention provision, the exceptions would apply to digital locks too.

Why should companies be able to rewrite copyright law and trump exceptions simply because they slap a digital lock onto something? If there’s a backup exception, there should be a backup exception. If there’s allowance for parody and satire, no digital lock should be able to take that away. And what’s the use of a format shifting exception if digital locks will force you to repurchase your content to stay legal anyways?

Canada needs to have a flexible anti-circumvention approach that is actually linked to infringement, or none of the compromises in this bill even matter.

Other Nasty Things

There’s an inducement clause (27 (2.3)) which would make it illegal to provide a service online “that a person knows or should have known is designed primarily to enable acts of copyright infringement.” Would the Internet-equivalent of a VCR pass that test? What about BitTorrent? Both technologies can be used to enable acts of copyright infringement, but they also have legitimate uses. How the “primary use” is determined could have significant implications here.

The time shifting provision (29.23) warrants further review, as it contains a variety of conditions under which you can record a program for later viewing. For example, the bill would require that you “keep the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time”—seemingly, a requirement to get rid of recordings once you’ve listened to/watched them.

Also, library provisions allowing for distribution are subject to digital locks, and contain a requirement for copies to be destroyed within five days.

There are lots of details like this in this bill that require further study, and most likely revision.

The Strategy: Let’s Make Some Noise

The Conservatives are seeking support on this bill from the Liberals. Liberal Industry critic, MP Marc Garneau, is keen to work with the government to introduce a new law, and is open to the possibility of summer hearings to get it passed. But Clement told the CBC, “I’m not coming down from the mountain with this chiselled in stone… we could seek some consensus and there could be some positive amendments to this bill.”

When I met with my MP, Liberal Joe Volpe, over Bill C-61 in the summer of 2008, his main question to me was whether to scrap the bill or to fix it. Critically, We must let our MPs know—especially the Liberals—which compromises are acceptable, and which undermine the entire copyright bargain. Flexible fair dealing would have been better than a litany of exceptions, but that compromise could work. However, allowing digital locks to undo those exceptions is simply unacceptable.


Politics is the art of the possible, a complex art of balance between ideals and interests. This bill isn’t perfect, but there is a push from both sides of the floor to get it passed. There are a lot of good compromises, but whether or not the bad provisions get fixed could have huge implications on Canadian culture, technology and business in the years to come. Make your voice heard.

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Surprise, Surprise: Canadians Aren’t Interested In ISP Levies

This post originally appeared on Techdirt

Michael Geist points to two new polls released by Angus Reid Strategies, which show that Canadians are overwhelmingly against the idea of ISP levies. It should come as no surprise that 79% of people surveyed about the possible Canadian content levy on new media said it would be an “unnecessary and/or inappropriate fee that would end up being passed along to consumers.” In another survey on file sharing, 45% of people said that downloading music free of charge was just “what people should be able to do on the Internet,” while only 3% believed that downloaders are “criminals who should be punished by law.” 27% said that it’s something people shouldn’t be doing, but that “it’s not a big deal.” 73% of people thought that a music tax was “unnecessary and/or inappropriate” (which ought to disappoint a few Canadian creator groups calling for this sort of thing…).

The survey also found that those who download music are “often the most voracious music enthusiasts,” more likely to buy a CD in the next month (41% vs. 34% of non-file sharers) and more likely to have attended a concert in the past year (65% vs. 52%), which should, again, not surprise many people around here. This is just another bit of evidence that “piracy” is not a problem and, instead of pushing for ISPs to collect levies or act as copyright cops, musicians should focus on connecting with fans and giving them a reason to buy. Though, somehow, I don’t expect the whining to stop anytime soon…

Read the comments on Techdirt.

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Ontario Government Considers Facebook Consultation

This post originally appeared on Techdirt.

The Ontario Premier says he wants to engage young people in dialogue on Facebook (via Michael Geist) over protests against proposed restrictions on young drivers. The strict, zero-tolerance proposals have caused many young people to speak out on Facebook, and one protest group now has over 140,000 members. The Premier has responded publicly, “I think we need to find a way to get on Facebook… I think we need to find a way to engage in a dialogue in a social network where they are,” noting that most young people won’t come to the traditional legislative meetings. There’s one snag though — government computers currently block Facebook.

This isn’t the first time a Facebook group has caught the attention of Canadian politicians (it’s also not the first time this Ontario government has proposed controversial driving laws). Over the past year, a Facebook group, created by Geist, protesting proposed copyright legislation, was mentioned repeatedly by the opposition in federal parliament. This time, the government itself is bringing an online protest to attention. The idea of Facebook consultations drew some criticism in the comments on Geist’s post — why should the government conduct its business on a proprietary, privately owned silo? But Geist isn’t suggesting that the government rely on Facebook or any one service, just that they could make use of services that people are already using. Facebook is especially relevant for legislation affecting young voters. In an earlier column, Geist notes that it takes more than just an “if you build it, they will come” approach. Governments could broaden their online consultation strategies to include a presence on social networks where active dialogue is already taking place. In this particular case, it’s still a bit too early to tell if this is just talk or if the government is serious about experimenting. A good first step might be to reconsider that Facebook ban.

Read the comments on Techdirt.

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What the Canadian DMCA means in practical terms

Given the tabing of Bill C-61 this week (aka “the Canadian DMCA”), I’ve decided to put the coverage in context with some practical examples and questions.

Under the new legislation:

  • It will be illegal for anyone in my house to watch a DVD on a computer, since we run GNU/Linux (courtesy of the digital lock provision which outlaws “unauthorized” DVD decoders)
  • I would be liable for $500 in damages ($6000 if it’s per song, which isn’t clear) for loading A Perfect Circle’s Thirteenth Step — which I own — onto my computer, an album that problem sells for $9.99 on iTunes (courtesy of the digital lock provision and limitations to statutory damages). If I share that album with my younger brother, I may be liable for up to $20,000 in damages (again, assuming it’s not per song) because it ceases to be for private use.
  • It will be explicitly illegal for my parents to share their digital music collection with each other, even though they share their physical music collection (courtesy of the limitations of the private copying of music provision)
  • Canadians are finally explicitly allowed to time shift broadcasts. Except, if someone tells us that we’re not allowed to time shift broadcasts. The time shifting provision is completely undermined by the digital lock provision
  • The time shifting provision has the following limitation: “29.23 (d) the individual keeps the recording no longer than necessary in order to listen to or watch the program at a more convenient time;” I guess my family may have to destroy the old VHS recordings we have of Christmas specials from when we were kids or television shows my mom has appeared on in the past, less we be hit with $500 a piece damages for keeping these recordings “longer than necessary.” Nevermind the episode of Canadian Idol from last week, that (*gasp*) may still be sitting on your DVR
  • What exactly qualifies as making available? (See New Rights and Protections for Copyright Owners) If I have music in a shared folder on my local network, but my WiFi is unencrypted, am I making it available? The $20,000 upper limit for damages applies to making available.
  • Posting a copyrighted photo on the Internet? Up to $20,000 in damages, thanks to the limitations of the limitations on statutory damages.
  • Posting a copyrighted video on the YouTube? Up to $20,000 in damages, thanks to the limitations of the limitations on statutory damages
  • Educational institutions can now make use of content on the Internet, unless someone says they can’t make use of content on the Internet (courtesy of the digital lock provision).

There is some good news, but it’s largely made irrelevant by the bad. For example, things like time shifting or format shifting are, at best, in a legal gray area at present. Bill C-61 would permit these actions explicitly… unless someone says they aren’t permitted. Without the digital lock provisions, this might actually be a step forward. Too bad those anti-circumvention measures are central to the bill.

Michael Geist feels betrayed. Darryl Moore examines some of the negative effects on everyday activities. The Canadian Music Creators Coalition says the bill doesn’t help Canadian artists. 10,000 more Canadians have joined the Fair Copyright for Canada Facebook group. I’m flat out angry.

At least the CRIA is happy. This would give it the ability to sue music fans.

Join the protest.

Other coverage:

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