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.

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!

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?

Letter Wizard Updated To Include French

The popular Letter Wizard setup by CCER just less than a month ago has been updated to include a french version. The french letter varient is also CC’d to the Bloc Québécois industry critic Paule Brunelle.

So far there have been over 20,000 letters sent with this tool to the ministers in Ottawa responsible for the Canadian DMCA (Bill C-61) which is nothing short of amazing. Keep up the pressure over the summer and share the Letter Wizard with your friends and family and help stop the Canadian DMCA.

Don’t Allow Your Voice To Be Silenced In The Canadian Copyright Debate

The Canadian Coalition for Electronic Rights has updated its online letter writing wizard in light of recent developments in the Canadian copyright reform front. This update is intended to address the Government’s seeming willingness to ignore the voices of thousands of Canadians and proceed with the introduction of anti-consumer copyright reform legislation in as little as 6 weeks. Legislation that goes in a polar opposite direction of what Canadians demanded during the consultation process.

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.

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.

Canadian Government Commits To Tougher Copyright Laws

Yes Canada, it’s like déjà vu all over again. This Government has once again committed themselves to tackling this pesky copyright thingy. In today’s Speech from the Throne it took Governor General Michaëlle Jean just 14.5 minutes out of 60 some-odd minutes to mention copyright and the direction this Government will take to update Canada’s Copyright Act:

To fuel the ingenuity of Canada’s best and brightest and bring innovative products to market, our Government will build on the unprecedented investments in Canada’s Economic Action Plan by bolstering its Science and Technology Strategy. It will launch a digital economy strategy to drive the adoption of new technology across the economy. To encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada’s prosperity, our Government will also strengthen laws governing intellectual property and copyright.

In terms of copyright and its implications, this was essentially a carbon copy of the Speech from the Throne delivered by this same Government on Nov. 18, 2009.

With approximately 100 sitting days scheduled for the House of Commons to be in session before the summer recess, one gets the inkling that Canadians are going to see an Act to Amend the Copyright Act hit the Order Paper and most likely First Reading before the MP’s retreat to the summer BBQ circuit.

When it comes to copyright reform in Canada battle lines have been clearly drawn, on the one side we have the ‘blame Canada’ corporate lobbyists, shills and lawyers versus those of sound mind, i.e. consumers, esteemed members of academia, lawyers with sound reasoning and tech industry coalitions. Just who truly has the ear of Government will remain to be seen in the next 100 days and beyond. However, if Bill C-60 and Bill C-61 are any indications consumers are going to be in for a rough ride as distributors will continue to push for locked down content and legislation to protect their imposed locks.

Even if this government comes to its senses and crafts a truly balanced copyright bill, Canada, and the rest of the developed world for that matter, have the Anti-Counterfeiting Trade Agreement (ACTA) looming over their heads. This secretly negotiated trade agreement represents a particularly vile form of policy laundering that if enacted, threatens to override Canada’s domestic copyright policy, reformed or otherwise. ACTA seeks to provide an unprecedented level of control to ISP’s, pseudo-law enforcement and content distributors to dictate how, when and where consumers can access content and associated products in the high tech economy. Yes, folks be afraid, be very afraid.