Digital locks trump Copyright in new "copyright" bill

(Title modified from ITBusiness article by Brian Jackson)

The latest in a series ofcopyright bills was tabled on June 2, this one numbered BillC-32. Like the Liberal BillC-60 tabled in June 2005, and the previous Conservative BillC-61 tabled in June 2008, the purpose of the bulk of thebill is to change Canadian law such that Canada can ratify the highlycontroversial 1996 WIPO treaties. While past WIPO treaties struck abalance between various competing interest, these treaties are seenas giving intermediaries such as publishers and technology companiesfar too much influence, to the detriment of both creators andaudiences.

While others disagree, I donot believe copyright infringement and compensation are directlylinked: lowering infringement doesn't increase revenues, andincreased infringement doesn't decrease revenues. As I looked at thisbill I didn't see how this bill will reduce copyright infringement,or more importantly provide better revenues to compensate creativeCanadians for their valuable contributions to our society.

At its core, Copyright is aregulation on a series of activities. These activities, if done bysomeone other than the copyright holder, require the permission ofthe copyright holder. In some cases permission is not required, onlypayment (a levy). In other cases, no permission or payment isrequired. It makes sense to talk about changes in copyright interms of various activities.

It has been a week since thebill was tabled. While I offer clause-by-clausenotes with a summary on the Fix.BillC32.cawebsite, I will break down various provisions into grouping, anddiscuss their legal status under this bill: activities unrelated tocopyright, third party liability, legitimate behaviour, andillegitimate behaviour.

Legal status ofactivities not legitimately linked with copyright

The activities that brought meinto copyright are issues which I don't consider to legitimately berelated to copyright. One example that comes under the term Paracopyrightis legal protection for technological protection measures (alsocalled anti-circumvention, or legal protection for DigitalRights/Restrictions Management).

The WIPOCopyright Treaty, article 11, says:


ContractingParties shall provide adequate legal protection and effective legalremedies against the circumvention of effective technologicalmeasures that are used by authors in connection with the exercise oftheir rights under this Treaty or the Berne Convention and thatrestrict acts, in respect of their works, which are not authorized bythe authors concerned or permitted by law.

The WIPOPerformances and Phonograms Treaty (WPPT), article 18, hassimilar wording. Where it says authors, you should substitutecopyright holders as most copyright holders are not authors.

There are two techniquescommon with DRM systems which are unrelated to the rights ofcopyright holders which lobbiests (including parts of the UnitedStates government) have tried (often successfully) to convincegovernments are covered by the treaties.

  • Locks on content such thatthe content can only be accessed by authorized devices. This is anew “right of non-interoperability” that never existed incopyright, and is one of the questionable techniques assumed to beprotected by what are called “access control” technicalmeasures. This creates anti-competative ties between copyrightholders and technology companies which many analysts believe willlead to technology platform monopolies. This reduction ininteroperability also has the effect of lowering sales as potentialcustomers may not own (or ever want to own) the specific brands ofdevices which are “authorized” to access the content. Rather than legally protecting these ties, I have suggested that theyshould be made more clearly prohibited under section77 of our Competition act.
  • Locks on devices where themanufacturer, rather than the owner, retains the keys. This meansthat it is the manufacturer, not the owner, that is able toultimately decide what software will run on the device. I believethat owners should be legally protected to hire a lockmith and changethe locks on their property, whether that property be their home,their car, or their computer (or information technology). I go intodetails about this in the article: Protecting property rights ina digital world. Beyond a respect for property rights, myinterest as a software author should be obvious: If technology ownerscan't make their own software choices, then they can't choose mysoftware.

Bill C-32 has many things tosay about technical protection measures. My reading is that thegovernment sided with the United States in wanting to protect theinterests of a subset of technology platform companies over theinterests of their competitors, technology owners, or creators ofcopyrighted works. Please note that I am talking about technologycompanies, as I believe creators who support these types of locks aremisinformed about the science behind these technologies, and areinviting a Trojan horse which will greatly harm their own economicand other interests.

While copyright regulates manythings, it doesn't talk about the concept of “access”. Restricting who can access copyrighted works, and with what tools, isa concept that the United States introduced into the copyright reformdiscussion in the mid 1990's. This is not something that is part ofthe WIPO treaties, but was incorporated into the past Bill C-61 andthe current Bill C-32. Bill C-32 says that you can not circumvent atechnical measure which “controls access to a work, to aperformer’s performance fixed in a sound recording or to a soundrecording and whose use is authorized by the copyright owner”.

While the bill says thetechnical measure needs to be “authorized by the copyrightowner”, there are no provisions in the bill to allow copyrightholders to circumvent third party technical measures in order todetect copyright infringements. There is this odd notion inanti-circumvention drafting that technical measures will be used bycopyright holders for legitimate purposes, and thus there isinadequate recognition that these measures can and will just aseasily be used to hide otherwise unlawful activity, including but notlimited to copyright infringement.

The bill makes no tie betweencircumvention of access controls and activities that would otherwiseinfringe copyright, so the unintended consequences will beconsiderable. There is a long complex list of attempts to tweak thedamage caused by the anti-circumvention provisions, but that listwould end up more than doubling the size of the copyright act inorder to try to deal with unintended consequences case-by-case.

The fix is obvious: if weintend to ratify the 1996 WIPO treaties, then we must move forwardpolicy that is directly related to the WIPO treaty language. Anti-circumvention must be directly tied to infringing activities,and not make new activities unrelated to copyright intoinfringements. We need to reject the US originating language andlobbying.

It is important to rememberthat the non-copyright related activities which Bill C-32 tries toprotect are actually e-Commerce, contract or property law related. These provisions are provincial jurisdiction in Canada, so there willlikely be constitutional challenges of this bill if it is passed init current form.

There is also no need for anyprotection of these technologies in Copyright law, given any of thelegitimate uses of these technologies can be protected in provinciale-Commerce, digital contract or property law. Much of themisinformation and misdirection (of politicians, of consumers) couldbe avoided by enhancing the appropriate provincial law. (See: Whenconsumer choice is not enough: Dishonest Relationship Misinformation(DRM))

Third partyliability

Some copyright holders haveindicated that they don't want to sue actual copyright infringers,but prefer instead to go after what they consider to be “enablers”. What this really means is that they want to target providers oftechnology and services which could be abused. We as a society donot hold automobile manufacturers responsible for the use of theirproducts as getaway vehicles from crimes, and the same should holdtrue for communications technology providers.

There are times when theseproviders are the only entities which know the identity of the personwho is infringing, so it is reasonable to require that they act ascommunications intermediaries. This is why the previous twocopyright bills includes a notice-and-notice system where ISPs arerequired to act as an intermediary between copyright holders alleginginfringement and the alleged infringer. ISPs have always beenrequired to turn over identity information and other evidence ifrequested by a court.

Bill C-32 retains thenotice-and-notice system, and similar provisions for “InformationLocation Tools” (AKA: Search engines). While there is sometweaking I suggest in my clause-by-clause notes that would bebeneficial, the general feel should be kept. There will be a lot ofpressure on the government from some of the old-media extremists tochange this language to adopt a US style Notice and Take-down (AKA:Claim and Censor), as well as possibly a three strikes rule.

When you hear these lobbiests,there are important things to keep in mind. A court can already issuea take-down of material, and when you look at the excessively highstatutory damages possible in Canada for de-minimus infringement wealready have a “one strike, and you are bankrupt” system. What these lobbiests are asking for is to be able to have material orpersons removed from communications media without having to bringadequate evidence to a court.

Legal status oflegitimate behaviour

We need to look at activitieswhich Canadians believe are perfectly reasonable, and should not berestricted by copyright. Some of these activities wereinfringements in the past, and under this bill would not beinfringements. Others were unregulated in the past, but would nowbe infringing.

As a majority of Canadians aresending their old VCRs to land-fill, we will finally have the commonusage of these tools to time-shift made legal in Canada. Theseactivities were clarified as legal in the United States in 1984,based on their flexible Fair Use regime. It is not that the lawchanged in 1984 in the USA, but that if you evaluate the strength ofCopyright law as being how much it favours the interests of copyrightholders, US Copyright law was and remains “weaker” in mostrespects than Canadian law.

I mention outdated technologyfor a reason, which is that while an extremely limited form of timeand device shifting is legalized in Bill C-32, these same activitiescarried out in relation to newer digital media is largely nullifiedbecause the application of technical measures trumps all the limitsand exceptions to copyright. While persons outside of the technicalcommunity may not even know when a technical measure is applied (somemusic CDs, most DVDs, etc), perfectly legitimate activities arelawful or not lawful based on this largely arbitrary distinction.

Overall, more reasonableactivities are infringing under this bill than under currentCopyright law. Since I do not believe behaviour will change, thisalone will mean the bill will increase rather than decreaseinfringement.

Legal status ofillegitimate behaviour

I expect there to be quite alot of talk in the media about unauthorized filesharing of music andother multimedia. I participatedin a discussion on BNN with Canadian singer-songwriter DanHill who was making all sorts of claims about what this bill would dofor him and his major label allies, little of which can be seen inthe bill.

Unauthorized sharing of musicand other multimedia is already infringing under current Canadianlaw, with possible statutory damages of “a sum of not less than$500 or more than $20,000 as the court considers just” for eachfile infringed. While the private copying regime for music meantthat a tiny bit more evidence was required for music compared toother files, unauthorized sharing of music was already infringing.

The fact that copyrightholders have not made use of existing strong Canadian Copyright lawshould never have been misinterpreted as an indication that our lawdidn't allow copyright holders to sue for illegitimate behaviour.

There are some changes in BillC-32, which is that Statutory damages is reduced in the case ofnon-commercial infringements.

(a) in a sum of notless than $500 and not more than $20,000 that the court considersjust, with respect to all infringements involved in the proceedingsfor each work or other subject-matter, if the infringements are forcommercial purposes; and

(b) in a sum of not less than$100 and not more than $5,000 that the court considers just, withrespect to all infringements involved in the proceedings for allworks or other subject-matter, if the infringements are fornon-commercial purposes.

In the case of non-commercialinfringements, the judge can also reduce dammages to be”proportionate to the infringements”, considering we arestill talking about $100 to $5K per file. This provision still hasthe effective impact of “one strike, and you are bankrupt”for activities where the studies are conflicting as to the economicharm (if any) to the copyright holder.

Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.

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