Canadian DMCA Bill C-32 Easily Voids Consumer Rights

The Canadian Coalition for Electronic Rights (CCER) is pleased to see that the Government of Canada has tabled its Copyright Modernization Act (PDF). However, the CCER is deeply concerned at how easily consumer rights can be voided by the anti-circumvention provisions included in this legislation.

Albeit slightly more flexible than the Conservatives’ previous attempt at reforming copyright, Bill C-32 is flawed at its core by the inclusion of strict, anti-circumvention provisions. These anti-circumvention provisions are modeled after those found in the oft-criticized US DMCA (Digital Millennium Copyright Act) and effectively extinguish consumer and creator rights by tipping the balance of copyright law in favour of distributors and antiquated business models.

Bill C-32 includes provisions to address consumer activities such as format and time shifting, however these are all subject to digital locks. For example, consumers would now be permitted expressly by law to rip tracks from a CD into an MP3 and then transfer it their iPod or to make a backup copy of digital content to protect against loss or damage. However, what about consumers who want to watch a new DVD they bought on their iPad? No chance, as all commercially available DVDs employ digital locks and breaking a digital lock is not permitted by C-32 in this instance. Now what if a consumer wants to make a backup copy of a video game to protect their investment from undue wear and tear? Pointless, seeing as a digital lock needs to be bypassed in order to make that personal backup copy playable. According to Bill C-32 both of these reasonable consumer acts would be illegal and subject to penalties of up to $5000.00. So in actuality, the only rights Canadian consumers will get under Bill C-32 are those that the music, movie and game distributors decide they get or what has been aptly referred to as “market forces” in recent discussions surrounding the bill.

A more effective approach to the anti-circumvention provisions that inevitably seem to criminalize consumer activities in Bill C-32, would have been to link the act of circumvention to infringement as the Liberals did in their attempt at copyright reform. This approach is not only WIPO compliant but it integrates a greater deal of flexibility into copyright law by not placing a blanket prohibition on circumvention services, tools and devices. This approach would likely provide the greatest level of balance to Canada’s copyright regime by providing consumers with tangible rights and options rather than provisions that giveth with one hand and taketh away with the other. Such an approach would also ensure that creators are fairly compensated for their work while at the same time provide incentives for future innovation. Unfortunately, ministers Moore and Clement are taking Canada in a different direction. A direction that may appease certain interests in the United States and European Union at the expense of Canadian consumer rights.

Another attention grabbing provision included in Bill C-32 is the legitimization of PVR devices and associated time and format shifting activities. Sounds great doesn’t it? You can now use that PVR you purchased to record your favourite TV shows for viewing at a later date and time without fear of being on the wrong side of the law…for now. This provision is also subject to digital locks (broadcast flags) that will inevitably be used in Canadian television broadcasts that will prevent a program from being recorded to your PVR or cause a recorded program to delete itself after a given period of time. Try to bypass these broadcast flags and you’ll find yourself on the wrong side of the law according to Bill C-32. Going from a consumer to a criminal just by engaging in a reasonable consumer activity will be the direct result of the anti-circumvention provisions in Bill C-32.

Bill C-32 provisions are not all as contentious as the anti-circumvention provisions are, in fact C-32 does take some positive steps forward in the areas of fair dealing, intermediary liability and educational exemptions. The Canadian Coalition for Electronic Rights fully supports Bill C-32’s inclusion of a “notice and notice” approach to internet service provider liability. Meaning that, after being contacted by a copyright holder about a potential infringement, an ISP will be required to notify the customer that he or she may be violating the law. The customer’s personal information could then be released to the copyright holder with a court order.

Bill C-32 is now set to make its way through the parliamentary process and be referred to a committee where it will be reviewed line by line and where hopefully the public can be heard from in a fair and representative way. Industry Minister Tony Clement has made statements in the media indicating there exists an openness to amending Bill C-32 in a way to ensure balance for all sides of the equation. Clement’s continued willingness to engage Canadian consumers in an open dialogue on the copyright issue is rare and presents a unique opportunity that must not be squandered. If Canadians remain silent there is a real possibility that Bill C-32 will become the law of the land in its current flawed form, undermining the reasonable rights of all Canadians with its draconian protection for digital locks. However, if Canadians take the time to engage themselves in this important issue and speak out, Bill C-32 can be fixed and a proper balance in Canada’s copyright regime established in a responsible and sovereign manner.

In the coming days the Canadian Coalition for Electronic Rights will be updating its online letter writing tool to reflect the introduction of Bill C-32 and its worrisome anti-circumvention provisions. Michael Geist has also relaunched Speak Out on Copyright to focus on this bill and encourages Canadians to join the Fair Copyright for Canada Facebook group (to get active) and the Fair Copyright for Canada Facebook Page (to stay updated).

Online Letter Tool Updated To Address Bill C-32 Concerns

On June 2, 2010 the Government of Canada undertook an important step towards updating Canada’s copyright regime by introducing Bill C-32: the Copyright Modernization Act. Although Bill C-32 appears to be more flexible than the previous attempts at copyright reform, this bill is flawed to its core by the inclusion of strict, anti-circumvention provisions. Understandably Canadians are concerned at how easily their rights are trumped by the overriding protection for digital locks included in this legislation and it is to this effect that the CCER has updated its online letter writing tool.

It is essential that Canadians speak up about their concerns with Bill C-32 while it is still open to amendments. Even if you have spoken out before the Government needs to hear your concerns. Send your letter now and share this tool with your friends, family and co-workers. It is essential that we all speak up now while we have the opportunity.

James Moore Demonizes Those Who Disagree With His Brand Of Copyright C-32

In the ominous course of exactly one year to the date, what may have once been regarded as the best of times (June 22, 2009) has morphed into what can be classified as the worst of times (June 22, 2010). What was once the age of wisdom, is now the age of foolishness. Witness what has become of MP James Moore and his copyright reform ideals as evidenced in this video. It was one year ago at Canada’s Digital Economy: Moving Forward conference hosted by Industry Canada in Ottawa that Minister Moore reached out and appealed to a broad cross section of attendess for their input and ideas for copyright reform. As Moore so eloquently stated:

The future is now, it is coming and it is remarkable…never has their been a better time to be alive than right now…it’s not only Michael Geist twittering in real-time to his universe of people who care about copyright…the opportunities in front of us are remarkable…the average age of a Member of Parliament is 55, but those under the age of 25 are consuming more media than ever before, you’d be surprised the number of MP’s who’ve never held an iPhone…the old way of doing things is over and it’s great and it’s never been better and we need to be enthusiastic and embrace these things. Don’t assume that those that are making the decisions and driving this debate understand all the dynamics that are at play here and how great this can be for Canada…the opportunities are unbelieveable and are unparalleled in human history

Very heartening and encouraging words from Moore a year ago. Moore stresses that MP’s, those making the decisions and reforming copyright law do not fully understand the technology and the influence it has on every facet of Canadian lives. As Moore indicates, the old way of doing things is over and it’s great and we need to be enthusiastic and embrace these things. What a difference a year makes, witness Minister Moore a year to the date:

Those absolutists out there, who are babyish in their approach to copyright legislation who think that any idea that copyright reform would be an attack on individual citizens are people who frankly don’t get…Don’t fool yourself. These voices that are out there, these people that are out there who pretend to be experts that the media cite all the time. They don’t believe in any copyright reform whatsoever. They will find any excuse to oppose this bill, to drum up fear, to mislead, to misdirect, and to push people in the wrong direction and to undermine what has been a meaningful comprehensive year-long effort to get something right…Those people out there who try to pretend that they are copyright experts and they want to amend copyright in a meaningful way, don’t be fooled by some of these people. They don’t believe in any copyright. They don’t believe in individuals’ right to protect their own creations…Make sure that those voices who try to find technical, non-sensical, fear-mongering reasons to oppose copyright reform are confronted every step of the way and they are defeated.

Minister Moore has gone from encouraging broad participation and input regarding copyright reform to casting most critics of his brand of copyright reform as “radical extremists” As the omnipresent Michael Geist alludes, is Minister Moore referring to these groups which include MP’s, consumer groups, university teachers and students, library groups, business/trade groups and retail groups. So this begs the question Mr Moore: Why should Canadians now not speak out on copyright and rely only upon MP’s (who as you’ve alluded average in age over 55) to spoon feed consumers of technology (those under 25 consume the most technology) new laws that will dictate their everyday activities? Why must we ensure that those who “oppose copyright reform are confronted every step of the way and they are defeated?”

CCER Member Battlegoat Studios Offers Their View On Bill C-32 And Its Contentious Protection For Digital Lock

George Geczy, co-founder and co-owner of Battlegoat Studios, has just released a thoughtful and eloquently written document entitled: A “Canadian Content Creator’s View” of the Copyright Modernization Act (Bill C-32) (PDF).

While Mr Geczy has not been shy about expressing his and his company’s views regarding copyright, the need to speak out on copyright and the Canadian video game industry, Mr Geczy’s is a seasoned veteran when it comes to copyright and video games, he literally has been involved since ’82:

I think it is important to point out that I have been a digital content creator since 1980 and a business owner since 1982…I have also been involved with digital copyright issues since the early 1980′s, and my first submissions on the “current round” of copyright reform were in September 2001. I have since made submissions to each opportunity for consultation and feedback on copyright, FTAA, and ACTA.

Reflecting on Bill C-32, Mr Geczy arrives at much the same conclusion as distinguished scholars, business coalitions, universities and colleges and federal opposition MP’s. Mr Geczy sums this up succinctly with the following assertion:

Unfortunately, Section (47) of C-32, which adds the new Technological Protection Measures regulations, is so inherently flawed and unbalanced that it not only overshadows the progress in other sections of the bill, but in facts eliminates them by its “over-riding” nature. In recent comments the Minister of Heritage has said that the bill strikes a balance and “everyone got some water in their wine”. However Section (47) is more like arsenic in the wine, it destroys the progressive elements of the bill by invalidating them, and without changes this section makes the bill unacceptable and entirely unbalanced.

Mr Geczy offers a simple solution to the contentious protection for digital locks laid out by Bill C-32 that would satisfy Canada’s WIPO requirements, allow consumers to uphold their Fair Dealing Rights and Expections and protect creators and publishers against supposed large scale infringement. Think Mr Geczy’s solution would entail another lengthy research submission to satisfy all stakeholders as well as meet Canada’s international obligations? Think again, as Bill C-32 can be fixed with 10 words, yes 10 words:

Circumvention of Technical Protection Measures be permitted for non-infringing uses.

The CCER encourages Canadians to read Mr Geczy’s paper in its entirety to see how he rightly arrives at such simple yet effective fix. And to you Mr Geczy, by George, I think you’ve got it!

Does Anyone Like Bill C-32 Anymore?

With the 3rd session of the 40th Parliament now in session there is little doubt that copyright will be at the forefront of the conservative agenda between now and Dec 17. And when talking copyright in Canada, we are of course referring to Bill C-32. Prior to the summer adjournment of The House and MP’s exodus to their cottages and the barbecue circuit, battle lines were clearly drawn in the great copyright debate.

On one side were lobbyists music industry types, trade groups and MP James Moore pitted against educators, a coalition of big tech companies, retail representatives and Canadian consumers. Bill C-32 polarized the Canadian copyright reform debate almost immediately which comes as little surprise, however, what has since transpired in the waning dog days of summer is indeed eye opening.

Call it sober second thought or some iteration of buyer’s remorse, but it is now apparent that the honeymoon effect between lobbyists, trade groups and industry types has run its course. Witness the following:

Canadian Recording Industry Association (CRIA)
June 2010 September 2010
“[Bill C32 is] a very serious attempt by the government to balance the rights of creators and the needs of users. I think the intentions are good and I think the principles are sound.”
Source: iposgoode.ca
“Once this bill is passed, you could go online and steal every movie that’s ever made, every book, and every song, put them on your hard drive, admit liability, and write a $5,000 check. That would be the full extent of it — and it would be the first rights holder who would get all the money. Nobody else would get a cent. It’s close to saying that for people who want to steal stuff, there’s a compulsory license of $5,000.”
Source: grammy.com
Balanced Copyright for Canada
June 2010 September 2010
“I believe the Copyright Act amendments proposed in Bill C-32 do a good job of balancing the right of artists and creators to benefit financially from their work, and the ability of consumers like me to make copies for non-commercial use and personal enjoyment. If Bill C-32 passes, it will give me the peace of mind of knowing that when I take music I’ve purchased and downloaded online, and copy it to my player, it’s legal.”
Source: michaelgeist.ca
“Unfortunately Bill C-32 falls short of meeting the government’s stated intentions. The core message, ‘thou shalt not steal’ is diluted by such a bewildering array of exceptions that if anything the situation for creators will grow worse.”
Source: michaelgeist.ca
Canadian Recording Artists (Loreena McKennitt & Carole Pope)
June 2010 September 2010
“That is why I welcome copyright reform legislation. And it is why I am counting on parliamentarians to ensure the measures we need are passed into law. It is only fair.”
Source: winnipegfreepress.com
“We…feared such a bill would try to create a fake divide between creators and users. We worried that, rather than put forward a balanced approach, the government would try to pit musicians against fans in order to score political points. And that’s just what it has done with Bill C-32.”
Source: theglobeandmail.com
Canadian Independent Music Association (CIMA)
June 2010 July 2010
“We are pleased that the government not only has recognized the need for copyright reform, but is now taking action.”
Source: cimamusic.ca
“However, when we compare this bill with the Digital Britain initiative, we can see that it pales by comparison to the British example. Clearly, the UK recognizes that its cultural industries are engines of economic growth, and their protection is vital. Therefore, as we say, they have legislation with the “teeth” necessary to enforce their laws, including the possible disconnection of chronic infringers.”
Source: cirpa.ca
Society of Composers, Authors and Music Publishers of Canada (SOCAN)
June 2010 September 2010
“SOCAN is pleased that the Government of Canada has tabled copyright reform legislation that addresses some of the challenges and opportunities creators face in the digital marketplace. We are optimistic that these changes will help make Canadian copyright law more consistent with international standards.”
Source: socan.ca
“It is SOCAN’s view that, although it strives to achieve a balance, the bill falls short. We believe Parliament must now make changes to the proposed law to ensure that a balance is indeed achieved and that this balance results in fairness to all those who will be affected by the legislation.”
Source: socan.ca

To summarize, we now have lobby groups doing a 180 and insinuating that Bill C-32 is a perfect fit “for people who want to steal stuff”. Coalitions of content creators, artists and rights holders, and people who work in music, movies, games, books, and software industries flip-flopping and claiming that under Bill C-32 “the situation for creators will grow worse”. And finally Canadian artists breaking ranks to allude that Bill C-32 “pit[s] musicians against fans in order to score political points.

Now that Canadians have had the summer to digest this bill and hopefully sift through the rhetoric, only one nagging question remains – just who likes this purposed copyright reform legislation anymore? Because it is certainly not consumers, educators, retailers, artists, creators, lobbyists, trade groups, industry groups, opposition MP’s and most certainly not the CCER.

Opposition Parties Agree: Copyright Bill C-32 is Flawed to its Core

Earlier this week the 2nd Reading debate on Bill C-32 opened in the House of Commons. This provided the first tangible opportunity for Canadians to hear from each party concerning their views on the proposed legislation. Similar to the Canadian Coalition for Electronic Rights, the Liberals, NDP and Bloc seem to agree with the Bill in principle, meaning they agree Canada’s copyright regime needs to be updated and that Bill C-32 is a plausible starting point. That being said, there quickly emerged a general consensus amongst ALL opposition parties that Bill C-32 is flawed at its very core by how it implements protection for digital locks. A flaw that each party insisted be fixed at the committee stage to ensure a balance between publishers, distributors and creators / consumers.

The following is each party’s stance on Bill C-32 and its flawed approach to digital locks:

LIBERALS (MARC GARNEAU)

The Liberal Party has problems with digital locks and technological protection measures, or TPMs. The Liberal Party has concerns with the application of new TPM circumvention amendments in Bill C-32. Specifically as it applies to music, video and other digital media, the Liberal Party believes the Copyright Act must allow Canadians who have legitimately purchased a CD, DVD or other product the ability to transfer their purchase onto other personal devices, such as an iPod, or make a personal backup copy on their computers so long as they are not doing so for the purposes of sale or transfer to others. We do not believe that Bill C-32 achieves that principle at this time. There are various ways in which a solution could be found and we look forward to examining the different options in committee.

NDP (CHARLIE ANGUS)

The digital locks make a mockery of any claim of giving fair rights. The government says that we will get fair dealing rights for education and for reproduction for private purposes. People can make back-up copies; there will be copying rights for the print disabled; there is the so-called YouTube mash-up provision. But if there is a digital lock in place, all those rights are erased. Clause 41.1 lays out very clear technological protection measures, which supersede the rights that citizens would otherwise enjoy. Thus Bill C-32 offers citizens’ rights that they will not actually be able to access. What the government is doing is creating a two-tiered set of rights between digital and non-digital products. Instead of legal certainty, Canadian citizens will face arbitrary limitations on what should be their legal right of access.

BLOC (CAROLE LAVALLEE)

This bill is totally unbalanced because it benefits major U.S. companies and major computer gaming software companies to the detriment of artists. There are two totally disheartening approaches in this bill and seven deadly sins, if I can put it that way. The first approach is one using digital locks. Sure, we can say that digital locks are necessary, and that they must be respected, but to base an entire bill on them is a bit much. With this bill, the government is telling artists that if they want to make money, all they have to do is put digital locks on their musical works to prevent anyone from copying them. If people want to make a copy for themselves, or to transfer the music to another format, it would be absurd to make them buy the original work again. That makes no sense, and it will not work. We are talking about the survival of artists and their art here, and this is important for many reasons. An approach based on digital locks is completely ludicrous.

Nigel Wright + Copyright Reform = Conflict Of Interest?

With the exit of Guy Giorno from the PMO’s office, we are greeted with the arrival of Nigel Wright, who will become the Prime Minister’s new chief of staff, one of the most powerful unelected officials in Canada. Nigel Wright leaves Bay Street as the Managing Director of Onex, the biggest employer in Canada outside of the Government. As the Globe and Mail referenced:

…in the case of Onex, we’re talking about a gigantic, sprawling entity…Some 40 of its companies operate in almost all areas — from health to culture through aerospace and investments. And they generate billions of dollars in sales annually.

But what about Mr Wright’s multi-million dollars worth of holdings in the Cineplex Galaxy Income Fund, the Canadian-based fund engaged in the motion picture industry? Could this perhaps be viewed by some as a conflict of interest considering this Government’s current focus on copyright legislation? Liberal MP Marcel Proulx seems to have taken notice:

Nigel Wright has interests in Cineplex cinemas and in Indigo bookstores. When they talk about copyright next week, will he really plug his ears? Everyone knows the answer. No he will not. Why is the Prime Minister treating Canadians like a bunch of fools?

and the final word goes to the always affable Wayne Easter:

Why are the Conservatives letting Mr. Wright set one foot in the PMO while his other foot is firmly rooted in corporate boardrooms? Where was the Prime Minister’s judgment?

URGENT: Canadian Copyright Bill C-32 Another Step Closer To Becoming Law

Bill C-32 has passed 2nd Reading and has now been referred to a special Legislative Committee for review, meaning the Canadian DMCA is one step closer to becoming law. However, the Committee charged with studying the Bill is asking for your input, the parameters and details of which can be viewed here. This is a unique opportunity for Canadians to interact directly with the lawmakers responsible for working out the specific language of the Bill before it is law and comes into force. The MP’s that form this committee believe it is important to hear from Canadians on the topic of copyright and Bill C-32:

The CCER has updated its online letter writing tool to make it quick and easy for Canadians to get their message to the Committee. The Committee and your MP need to know where you stand on this issue regardless of your views and even if you have already told them before. It is essential for Canadians to take advantage of this unique opportunity to speak out with their concerns and specific recommendations for the Committee while they are still working on the specifics of the Bill. Send your letter NOW as the Committee is only accepting submissions until the end of January, 2011.

Online Letter Tool Updated To Address Bill C-32 Concerns

On June 2, 2010 the Government of Canada undertook an important step towards updating Canada’s copyright regime by introducing Bill C-32: the Copyright Modernization Act. Although Bill C-32 appears to be more flexible than the previous attempts at copyright reform, this bill is flawed to its core by the inclusion of strict, anti-circumvention provisions. Understandably Canadians are concerned at how easily their rights are trumped by the overriding protection for digital locks included in this legislation and it is to this effect that the CCER has updated its online letter writing tool.

It is essential that Canadians speak up about their concerns with Bill C-32 while it is still open to amendments. Even if you have spoken out before the Government needs to hear your concerns. Send your letter now and share this tool with your friends, family and co-workers. It is essential that we all speak up now while we have the opportunity.

URGENT: Canadian Copyright Bill C-32 Another Step Closer To Becoming Law

Bill C-32 has passed 2nd Reading and has now been referred to a special Legislative Committee for review, meaning the Canadian DMCA is one step closer to becoming law. However, the Committee charged with studying the Bill is asking for your input, the parameters and details of which can be viewed here. This is a unique opportunity for Canadians to interact directly with the lawmakers responsible for working out the specific language of the Bill before it is law and comes into force. The MP’s that form this committee believe it is important to hear from Canadians on the topic of copyright and Bill C-32:

The CCER has updated its online letter writing tool to make it quick and easy for Canadians to get their message to the Committee. The Committee and your MP need to know where you stand on this issue regardless of your views and even if you have already told them before. It is essential for Canadians to take advantage of this unique opportunity to speak out with their concerns and specific recommendations for the Committee while they are still working on the specifics of the Bill. Send your letter NOW as the Committee is only accepting submissions until the end of January, 2011.