What if I was the Bill C-32 lead from the Official Opposition Liberals?

I came with some of my regular material:

• A printout of the "copyright 4 things" handout (OpenDocument, PDF) , also referenced from article: Protecting property rights in a digital world.
• A printout of the guest article in The Province: Copyright is no justification for digital locks
• A printout of the bill C-32 FAQ.
• A copy of Yochai Benkler's book, The Wealth of Networks: How Social Production Transforms Markets and Freedom

We started with me introducing myself, and my motivation for being involved: I am here as a creator who is trying to protect fellow creators from some of the very things they have been asking for.

I went through the "copyright 4 things", at which point he started to ask questions. He said that I was contradicting much of what he had heard from other groups. I explained that this is natural, given the representatives of these groups do not have the necessary technical background in order to understand the impact of this legislation on real-world technology.

He was surprised to hear that it was possible to infringe copyright without unlocking a digital lock, something that every technical person knows. If you take a bit-for-bit copy of a DVD, for instance, the resulting DVD is identical to the original. You can't view the DVD without the decryption key, but you can make exact duplications of the encrypted content without caring about the key at all.

I then spoke about how many forms of DRM are made up of two locks: an access control (encryption) on the content such that it can only be accessed with the right decryption key, and a lock on the hardware and software "owned" by the audiences which contains the content decryption key. I indicated that while most of the discussion was science-fiction about what the lock on content could do, the real-world technology created far more controversies associated with the lock on the devices: something the copyright holder clearly does not "own" and should have no standing in controlling.

There were many conversations at that level. I believe that my core message was clear, which is that far from protecting copyright and the interests of creators, misapplied and misunderstood technical measures are a great threat.

We then moved onward to a question politicians love to ask: If you were me, what would you be doing? What are the answers to the problems?

There are many ways to answer this.

I stated that current Canadian copyright law adequately protects the interests of copyright holders, and there is no crisis. Most of the alleged problems don't actually exist, some are self-inflicted, and only a tiny minority of issues actually need legislative clarification. While copyright clearly needs updating, C-32 heads in the opposite direction and will only harm the very people it alleges to protect.

I mentioned that the Federal Court and Federal Court of Appeals gave the recording industry a blueprint to sue music fans. It was their choice and not a mythical limitation of Canadian law that has meant that lawsuits have not been launched. I also suggested that what is happening in the music industry is not about infringement, but about the changing relationships between composers, performers and makers of sound recordings brought on by new technology.

The idea that Canadian law is stronger than US law in many ways came up. I mentioned moral rights and Canada's ratification of the WIPO Rome convention, suggesting that there are many more examples. We also spoke about how some are attacking the roll of WIPO now that majority-world countries have started to push towards treaties for the visually impaired, limitations and exceptions, and a more honest development agenda. I suggested that those trying to move international Copyright development to new forums like ACTA are anti-copyright in that they don't like the balance that exists in Copyright law or increasingly at WIPO.

But that doesn't address his shorter-term question, which is:

What should we do about bill C-32

Bill C-32 is an omnibus bill, covering an excessive number of complex and largely unrelated topics. We need to move to having a larger number of smaller bills which can be reasonably studied and debated.

If the bill goes to committee before second reading, anything can happen. The following is what I would be pushing for if I were there:

• renaming the bill to: The 1996 WIPO treaty implementation act.
• declare as off-topic for this specific bill any issue that is not directly related to Canada's implementation of the WIPO Copyright Treaty (WCT) or the WIPO Performances and Phonograms Treaty (WPPT), both adopted in Geneva in 1996.

This is not to suggest that other issues aren't important, but to suggest that they are important enough to deserve separate bills to be debated separately.

These two treaties are themselves quite complex, with many possible interpretations of the language within them. There are a few key issues which we need to watch carefully. I will reference the WCT article, even though similar language is used in WPPT as well.

• There are harmful and helpful interpretations of WCT Article 6 (right of distribution), Article 8 (Right of Communications to the Public) and Article 12 (Obligations concerning Rights Management Information). We just need to ensure that the helpful interpretation is used in Canada.
• There are relatively harmless and greatly harmful interpretations of WCT Article 11 (Obligations concerning Technical Measures). This has been the focus of the debate, both at WIPO back in 1996 as well as each time legislation is tabled in any country.

  I believe the ideal solution is to implement legal protection for technical measures in the appropriate provincial legislation such as contract, e-commerce, and property law. I clarify how this would fulfil WIPO treaty requirements in the bill C-32 FAQ. This would protect the legitimate uses of technical measures by copyright holders, and entirely avoid the abuses.

  A lesser second option is to adopt the language from Liberal bill C-60, which was a translation into Canadian law of the WIPO treaty language.

  Under no circumstances should the concept of "access controls" or "access" be added to Canadian Copyright law. These concepts were imported into bill C-32 from the USA DMCA, were rejected in 1996 at WIPO, and must be rejected in Canada. These concepts create an opt-out of the contours of Copyright. Proponents of these types of polices should be understood as being anti-Copyright, and these concepts should be constantly denounced by those of us who respect the traditional definitions and goals of Copyright.

• Concepts of "national treatment", where copyright holders in any WCT country need to be offered the same treatment as Canadian creators. This may impact things such as compulsory licensing schemes (IE: Private Copying Levy) as collectives outside of Canada will be able to request a cut as well. Canada may be forced to repeal this regime, or create a regime closer to the PLR (Public Lending Right) which is not part of copyright at all, but is a properly administered government program.

I believe if we ratified the 1996 WIPO treaties, it would reduce the political pressure on Canadian politicians. The USA has been abusing our contemplation about these treaties to falsely accuse Canada of not having copyright law that adequately protects the interests of copyright holders. Those who have compared Canadian and US copyright law know that Canadian law is already more tilted in favour of copyright holders, but these facts aren't well known by politicians.

It isn't like these extremists will stop, but it may cause politicians to become more curious about what is really being asked of them. I don't think the US will be happy until all Canadian knowledge base sectors are wiped out, and we have radically increased our royalties trade deficit with the USA.

There were two primary excuses the United States Trade Representative used for adding Canada to their priority watch list in their 2010 Special 301 Report:

• not yet ratifying the 1996 WIPO treaties
• not allowing police and boarder officers the ability to search and seize property without a shred of evidence of infringement and without a court order.

I consider it obvious that we should reject the second proposal out of hand for being outrageous.

I believe that the two 1996 treaties head us in the wrong direction and will make things worse for creators. I still believe that for shorter-term political reasons we should ratify. My hope is that attention can then move to future WIPO treaties which will hopefully focus on limitations and exceptions, including those necessary for the visually impaired and to have a development agenda that allows other countries to develop the way current net-exporting countries like the USA developed. Newer WIPO treaties amend past WIPO treaties, and I fully expect to see treaties which correct the serious mistakes made in 1996. Copyright law is clearly in need of modernization.

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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.