Jun. 18, 2008 - Issue #661: Cowboy Junkies

Copyright

Digital locks, lack of consultation fuel anger at copyright bill

Six months after widespread public outcry forced the federal government to back down on plans to introduce reforms to Canada’s copyright legislation, opponents of stricter rules governing everything from how people can listen to the music they buy to how educators are able to use the Internet in the classroom are once again raising alarm bells about proposed copyright changes.
 

On Jun 12, Minister of Industry Jim Prentice introduced into the House of Commons Bill C-61, An Act to amend the Copyright Act, calling the legislation “a win-win approach” and telling a Parliament Hill news conference, “This bill balances the rights of creators on one hand and consumers on the other.”
 

The sweeping legislation—the first change to Canada’s Copyright Act since 1997—for the first time explicitly bans peer-to-peer file sharing through online services such as LimeWire, puts in place penalties of up to $500 for each non-authorized infringement of copyright for personal use and up to $20 000 for each time an individual makes available a copyrighted work by, for example, posting music to a peer-to-peer network, uploading a copyrighted video to YouTube or even giving to a friend an old iPod containing music originally bought on CD.
 

While Prentice has made changes to the legislation since December to allow consumers to legally time shift (eg record a television show for later personal viewing), make private copies of music (eg transfer songs from a purchased CD to an iPod for personal use) and format shift (eg convert a purchased VCR tape into DVD format), critics say that such rights are overruled by one of the most controversial elements of the bill: bans on consumers circumventing “digital locks,” also known as digital rights management (DRM), which producers can place on copyrighted content.
 

Under the proposed bill’s anti-circumvention rules it would be illegal to get around digital locks—such as encryption put on a CD or DVD to prevent copying—or even to possess devices or software that would allow you to do so. Penalties for circumvention are up to $20 000 per infraction plus possible criminal charges.

 

Such strict anti-circumvention provisions, say critics, make the Canadian bill even worse than the much-maligned US copyright law, the Digital Millennium Copyright Act (DMCA).
 

“The digital lock provisions are worse than the DMCA. Yes—worse,” writes University of Ottawa law professor Michael Geist—who has led the fight in Canada against overly strict changes to copyright legislation—on his blog, which has become a clearinghouse for critics of the new bill.

“The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent. ... The effect of these provisions will be to make Canadians infringers for a host of activities that are common today.”
 

“There’s a lot of concern,” agrees Safwan Javed, drummer for the band Wide Mouth Mason and a member of the Canadian Music Creators Coalition (CMCC), a group of over 200 Canadian artists critical of the proposed bill. 
 

“The thing that jumps out right away is the anti-circumvention measures, which we think is bad news because essentially it’s creating a framework which invites and embraces the strategy of suing fans, suing consumers, litigation, using digital locks to dictate the terms of how consumers interact with content.” Javed says.
 

Michael Edwards, an Edmonton software developer and a member of the Edmonton chapter of the nation-wide group Fair Copyright for Canada,  which now has over 65 000 members on Facebook, shares Javed’s concerns.
 

“Digital locks are the key. In my opinion no digital locks should be protected. Period. Ever,” he states, emphatically. “If there’s a digital lock on a CD and I want to copy it to my PC why is that lock being protected? That lock is interfering with my use of property that I’ve purchased. And then the government turns around and says there are personal use provisions, but they are completely destroyed by the fact that if there’s a digital lock those personal use provisions do not exist anymore.”

 

While debates about copyright in Canada tend to revolve around music and movie downloads, Rory McGreal, the associate vice-president, research at Athabasca University, says that the bill will also have wide-ranging impacts on universities and colleges, especially open institutions like his which depend on technology to teach students.
 

“This is just terrible. [The bill] makes it impossible, or nearly impossible, to do our work in a timely fashion,” McGreal charges. “They got it right that we can use educational material online and in education—that’s great—but the problem with that is that they come up with a ridiculous stipulation on top of it, so yes we’re allowed to use the material in the classroom, but now you must destroy the material after you’ve taught a class,” McGreal explains. “Well, most teachers use the same material from one semester to the next, so now they have to destroy it, delete it from all their devices, delete it from every device, ensure that students have deleted it from all their devices and then put it back on again. It just doesn’t make sense.”
 

Like others, McGreal is also upset about the digital lock rules in the bill.
 

“It’s a good thing that they reiterate our rights as researchers to copy material, but then they take it away because we won’t be able to do that if people chose to lock their material.”
 

McGreal stresses that educators, many of whom are also authors, recognize the need for creators to be paid for their work, but he says that Bill C–61 fails to strike the right balance between the rights of creators and users, saying that overly restrictive copyright stifles creativity and innovation, which is the opposite of what copyright laws were originally intended to accomplish.

 

Anger at the bill has been compounded by a perceived lack of consultation with the full range of stakeholders impacted by copyright.

McGreal says he met with representatives from Prentice’s office in February and came away frustrated.
 

“Their mind was made up. Mr Prentice talks about having consulted with everyone, he’s consulted with nobody. Since he’s been in there’s been no consultation. The only meetings they’ve had are with the the Americans. They haven’t consulted with us.”
 

Javed agrees that there needs to be a broader discussion which involves more than just industry groups, which have largely applauded the proposed changes, saying they are necessary to update Canada’s outdated laws and meet international obligations.
 

“What we’ve been asking for all along and what hasn’t been done is some kind of consultation, some kind of bringing to the table the various stakeholders, including music creators, including songwriters, including consumer groups,” he says. “So far it seems like the legislation has been made behind closed doors and the only people who have the ear of the policy makers is a very small and select lobby group largely funded by ...  corporate interests.”
 

But Prentice says the government has already heard from interested parties on the issue.
 

“Copyright reform has been extensively debated over these past years, including in previous parliaments,” Prentice said during the press conference. “Associations have published position papers, newspapers and blogs have examined the act from every single angle. I myself have received thousands of emails on this issue. And now, it is time to act.”

 

While he personally would like to see even more freedom than currently exists in copyright, Edwards says that the main thrust of Fair Copyright for Canada is to make sure a real discussion happens before the bill proceeds to second reading.
 

“Our sole demand at this point is that this goes to committee. That’s what we’d like to see from the government. We can hash this out in cooperation with all kinds of other interest groups as long as we all have a chance to have a say,” he says. “But this call has been ignored, completely and utterly ignored.”
 

McGreal says the flaws in the legislation run so deep that he hopes a possible fall election will send the bill back to the drawing board.

“I hope it does die on the order book and that we start a process of consultation and that the next copyright laws be made-in-Canada and take into account our researchers and our educators because that’s what the original intent of copyright was, to promote science, learning, the useful arts, education in all its facets.”
 

“From a broader, more philosophical place I think we’re approaching this from the wrong way,” argues Javed. “This legislation is approaching it from the perspective of creating a framework for what’s illegal and then punishing people who infringe. And I think that’s the wrong approach. We want the fan to be able to interact with our music however they want. We want to engage the fan as opposed to alienate them.”
 

He says artists would rather see more effort put towards using technology to ensure that creators are paid for their work while respecting the rights of consumers to choose the format that works best for them.

“Where’s that balance? I don’t know, but I certainly think we’re on the wrong side of it right now [and] we’re hurting that relationship and that doesn’t bode well for the industry as a whole. We recognize that we want to have our rights protected, but we should learn from examples around the world, especially south of the border, that the anti-circumvention approach is the wrong approach.” V 

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