Digital locks trump Copyright in new "copyright" bill

The latest in a series of copyright bills was tabled on June 2, this one numbered Bill C-32. Like the Liberal Bill C-60 tabled in June 2005, and the previous Conservative Bill C-61 tabled in June 2008, the purpose of the bulk of the bill is to change Canadian law such that Canada can ratify the highly controversial 1996 WIPO treaties. While past WIPO treaties struck a balance between various competing interest, these treaties are seen as giving intermediaries such as publishers and technology companies far too much influence, to the detriment of both creators and audiences.

While others disagree, I do not believe copyright infringement and compensation are directly linked: lowering infringement doesn't increase revenues, and increased infringement doesn't decrease revenues. As I looked at this bill I didn't see how this bill will reduce copyright infringement, or more importantly provide better revenues to compensate creative Canadians for their valuable contributions to our society.

At its core, Copyright is a regulation on a series of activities. These activities, if done by someone other than the copyright holder, require the permission of the copyright holder. In some cases permission is not required, only payment (a levy). In other cases, no permission or payment is required. It makes sense to talk about changes in copyright in terms of various activities.

It has been a week since the bill was tabled. While I offer clause-by-clause notes with a summary on the Fix.BillC32.ca website, I will break down various provisions into grouping, and discuss their legal status under this bill: activities unrelated to copyright, third party liability, legitimate behaviour, and illegitimate behaviour.

Legal status of activities not legitimately linked with copyright

The activities that brought me into copyright are issues which I don't consider to legitimately be related to copyright. One example that comes under the term Paracopyright is legal protection for technological protection measures (also called anti-circumvention, or legal protection for Digital Rights/Restrictions Management).

The WIPO Copyright Treaty, article 11, says:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

The WIPO Performances and Phonograms Treaty (WPPT), article 18, has similar wording. Where it says authors, you should substitute copyright holders as most copyright holders are not authors.

There are two techniques common with DRM systems which are unrelated to the rights of copyright holders which lobbiests (including parts of the United States government) have tried (often successfully) to convince governments are covered by the treaties.

• Locks on content such that the content can only be accessed by authorized devices. This is a new "right of non-interoperability" that never existed in copyright, and is one of the questionable techniques assumed to be protected by what are called "access control" technical measures. This creates anti-competative ties between copyright holders and technology companies which many analysts believe will lead to technology platform monopolies. This reduction in interoperability also has the effect of lowering sales as potential customers may not own (or ever want to own) the specific brands of devices which are "authorized" to access the content. Rather than legally protecting these ties, I have suggested that they should be made more clearly prohibited under section 77 of our Competition act.
• Locks on devices where the manufacturer, rather than the owner, retains the keys. This means that it is the manufacturer, not the owner, that is able to ultimately decide what software will run on the device. I believe that owners should be legally protected to hire a lockmith and change the locks on their property, whether that property be their home, their car, or their computer (or information technology). I go into details about this in the article: Protecting property rights in a digital world. Beyond a respect for property rights, my interest as a software author should be obvious: If technology owners can't make their own software choices, then they can't choose my software.

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

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

While the bill says the technical measure needs to be "authorized by the copyright owner", there are no provisions in the bill to allow copyright holders to circumvent third party technical measures in order to detect copyright infringements. There is this odd notion in anti-circumvention drafting that technical measures will be used by copyright holders for legitimate purposes, and thus there is inadequate recognition that these measures can and will just as easily be used to hide otherwise unlawful activity, including but not limited to copyright infringement.

The bill makes no tie between circumvention of access controls and activities that would otherwise infringe copyright, so the unintended consequences will be considerable. There is a long complex list of attempts to tweak the damage caused by the anti-circumvention provisions, but that list would end up more than doubling the size of the copyright act in order to try to deal with unintended consequences case-by-case.

The fix is obvious: if we intend to ratify the 1996 WIPO treaties, then we must move forward policy 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 into infringements. We need to reject the US originating language and lobbying.

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

There is also no need for any protection of these technologies in Copyright law, given any of the legitimate uses of these technologies can be protected in provincial e-Commerce, digital contract or property law. Much of the misinformation and misdirection (of politicians, of consumers) could be avoided by enhancing the appropriate provincial law. (See: When consumer choice is not enough: Dishonest Relationship Misinformation (DRM))

Third party liability

Some copyright holders have indicated 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 of technology and services which could be abused. We as a society do not hold automobile manufacturers responsible for the use of their products as getaway vehicles from crimes, and the same should hold true for communications technology providers.

There are times when these providers are the only entities which know the identity of the person who is infringing, so it is reasonable to require that they act as communications intermediaries. This is why the previous two copyright bills includes a notice-and-notice system where ISPs are required to act as an intermediary between copyright holders alleging infringement and the alleged infringer. ISPs have always been required to turn over identity information and other evidence if requested by a court.

Bill C-32 retains the notice-and-notice system, and similar provisions for "Information Location Tools" (AKA: Search engines). While there is some tweaking I suggest in my clause-by-clause notes that would be beneficial, the general feel should be kept. There will be a lot of pressure on the government from some of the old-media extremists to change 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 issue a take-down of material, and when you look at the excessively high statutory damages possible in Canada for de-minimus infringement we already have a "one strike, and you are bankrupt" system. What these lobbiests are asking for is to be able to have material or persons removed from communications media without having to bring adequate evidence to a court.

Legal status of legitimate behaviour

We need to look at activities which Canadians believe are perfectly reasonable, and should not be restricted by copyright. Some of these activities were infringements in the past, and under this bill would not be infringements. Others were unregulated in the past, but would now be infringing.

As a majority of Canadians are sending their old VCRs to land-fill, we will finally have the common usage of these tools to time-shift made legal in Canada. These activities were clarified as legal in the United States in 1984, based on their flexible Fair Use regime. It is not that the law changed in 1984 in the USA, but that if you evaluate the strength of Copyright law as being how much it favours the interests of copyright holders, US Copyright law was and remains "weaker" in most respects than Canadian law.

I mention outdated technology for a reason, which is that while an extremely limited form of time and device shifting is legalized in Bill C-32, these same activities carried out in relation to newer digital media is largely nullified because the application of technical measures trumps all the limits and exceptions to copyright. While persons outside of the technical community may not even know when a technical measure is applied (some music CDs, most DVDs, etc), perfectly legitimate activities are lawful or not lawful based on this largely arbitrary distinction.

Overall, more reasonable activities are infringing under this bill than under current Copyright law. Since I do not believe behaviour will change, this alone will mean the bill will increase rather than decrease infringement.

Legal status of illegitimate behaviour

I expect there to be quite a lot of talk in the media about unauthorized filesharing of music and other multimedia. I participated in a discussion on BNN with Canadian singer-songwriter Dan Hill who was making all sorts of claims about what this bill would do for him and his major label allies, little of which can be seen in the bill.

Unauthorized sharing of music and other multimedia is already infringing under current Canadian law, with possible statutory damages of "a sum of not less than $500 or more than $20,000 as the court considers just" for each file infringed. While the private copying regime for music meant that a tiny bit more evidence was required for music compared to other files, unauthorized sharing of music was already infringing.

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

There are some changes in Bill C-32, which is that Statutory damages is reduced in the case of non-commercial infringements.

(a) in a sum of not less than $500 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes; and

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

In the case of non-commercial infringements, the judge can also reduce dammages to be "proportionate to the infringements", considering we are still talking about $100 to $5K per file. This provision still has the effective impact of "one strike, and you are bankrupt" for activities where the studies are conflicting as to the economic harm (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 Digital Copyright Canada.