In an article in p2pnet
, Charlie Angus, Digital Spokesperson for the New Democratic Party,
said that “Under Stephen Harper, Canadians are being force-fed US-style
copyright legislation.” When I read this, all I could think is “I wish”!
While I’ve written about how some aspects of C-61 are lifted near-identical out of the USA’s DMCA,
I have not yet put them in context with the rest of their copyright
act. Bill C-61, like the DMCA, is a set of changes between the previous
Copyright and a new Copyright. US copyright law was more fair before
their DMCA than Canadian law is now, and if Canada takes the direction
articulated in C-61 we will become that much worse than US law. As bad
as this would be, I would be happier to have Canada simply adopt
current US law (DMCA and all) than to apply Bill C-61 to current
Canadian law.
An important detail to realize with US law is that in their
Copyright Act of 1976 codified what they call “Fair Use” as follows
(Copyright Act of 1976, 17 U.S.C. section 107):
“TITLE 17 > CHAPTER 1 > section 107
section 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in copies
or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair use the factors
to be considered shall include—
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon consideration of all
the above factors.”
Parody is not specifically mentioned, but it doesn’t have to be
since the word “including” is used which suggests the list isn’t
intended to be exhaustive. Parody that is critical of the work itself
is easily considered criticism. Where there are grey areas and ongoing
caselaw is satires which is using a work to poke fun at or comment on
something else.
This concept of Fair Use was intended to be retained with recent changes to US copyright law, and the USA DMCA (Bill Number H.R.2281 for the 105th Congress, under Bill Clinton) includes the following statement in “Sec. 1201. Circumvention of copyright protection systems”:
“(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this
section shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, under this title.”
It is clear that the USA’s DMCA modified law was intended to retain
this ability to be interpreted by courts in a way that is fair
according to well understood criteria.
Lets contrast this with Canadian law modified by Bill C-61.
First, Canada does not have a living Fair Use regime. Our section 29 (FairDealings) has a few exceptions to copyright, but they are nowhere near as extensive as the USA’s Fair Use regime.
“Fair dealing for the purpose of research or private study does not infringe copyright.”
“Fair dealing for the purpose of criticism or review does not infringe copyright”, as long as the source is mentioned.
“Fair dealing for the purpose of news reporting does not infringe copyright”, as long as the source is mentioned.
That’s really it, and without any word like “including” it suggests
this list is intended to be exhaustive.. Nothing about “comment” ,
“teaching (including multiple copies for classroom use),” or
“scholarship”. There are a number of exceptions that apply to
“Educational Institutions” under Canadian law, but given how much
learning and teaching happens outside of these closed institutions it
is obviously not comparable.
You might then say to me: but the Minister of Industry Jim Prentice
and the Secretary to the Minister of Industry Colin Carrie have been
saying (YouTube)
that the “the educational exceptions”, “the format shifting exemptions”
and “the time shifting exemption” are all “made in Canada” and provide
important balance for “consumers”.
For those of us who have read the bill (which I’m not convinced
includes Mr. Prentice or Mr. Carrie), we notice that these provisions
are nowhere near as fair and balanced as US law in those same areas.
Under US law their existing Fair Use regime was used in the case of
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417
(1984), also known as the “Betamax case”, to confirm that making of
individual copies of complete television shows for purposes of
time-shifting does not constitute copyright infringement. It is widely
believed that shifting content between devices and formats would also
be confirmed to be fair use under US law.
Under Bill C-61 the Conservative government clearly stated that the
educational, format shifting and time shifting exemptions did not apply
if one had to circumvent any type of technological measure in order to
do so. This is the opposite statement to the DMCA’s “OTHER RIGHTS,
ETC., NOT AFFECTED”. While under the DMCA Fair Use is intended to trump
technological measures, under C-61 technological measures are intended
to trump our already excessively limited fair dealings.
Definitely “made worse in Canada”.
The so-called educational exceptions are tied to educational
institutions (in other words, useless to the majority of us — unlike US
law), and most are widely believed by actual educators (rather than
uninformed Ministries of Education) to be unnecessary under existing
limited fair dealings rules.
If that doesn’t seem bad enough, Bill C-61 makes things even worse.
A contract (read: imposed and not often read or readable End User
License Agreement, or EULA) for a download over the Internet can
disallow device shifting. Of course, neither the words “download” or
“Internet” are adequately defined in the bill to avoid confusion on
words that have different meanings for different people. Is the
“Internet” any network using TCP/IP (like digital cable services might,
and which many LAN’s do), or any network with a publicly routeable IP
address, or…what?
A contract for a video-on-demand service can disallow time shifting.
The exception also doesn’t apply to streaming over the Internet, only
traditional broadcasting (whatever that means, given convergence — is
it digital television broadcasting or Internet streaming if the service
uses a TCP/IP based network?) I can only keep the the recording as long
as necessary to listen to or watch at a more convenient time (and how
long is that — too vague for a law that has draconian statutory
damages!) The exception specifically does not apply a “network personal
video recorder service”, an option that a number of cable/etc companies
wanted to offer in Canada.
I could dive into the additional exceptions and limitations to those
exceptions that apply to Educational Institutions, but it doesn’t
matter given unlike US Fair Use this doesn’t apply to the majority of
us.
Election time!
We are about to go into an election (likely to be called on Sunday),
and Bill C-61 will die on the order paper. We shouldn’t simply rejoice
and think that this battle is over, but recognize the opportunity we
have.
No matter who forms government it will be the case that the vast
majority of elected politicians will have no clue what the digital
copyright debate is about, or why it is so important to Canada’s place
in the new economy. This is, of course, unless we do everything we can
to be involved in the election and find out who understands the issues,
and help them get into government.
I realize I’m repeating myself, but this is an issue where
individual Members of Parliament matter more than political parties, as
it is really that tiny subset of people who will be in any committee
studying the next tabled copyright bill that will have the required
influence to allow us to have copyright that is fair.
If you bump into a candidate that really believes that C-61 was fair
and balanced, let us all know so we can do our best to boot them out
(or simply keep them out).
Not just against C-61, but for something…
One obvious modernization to Canadian law we must be calling for is
to adopt a living Fair Use regime, possibly modelled after the US law.
As an improvement it could include updates from caselaw (such as the
Betamax case) to make very clear that time, device and format shifting
are Fair Use, without the embarrassing limitations that we saw in C-61.
While good Copyright law wouldn’t mention technological measures at
all (as said elsewhere, these are provincial contract, eCommerce and
property law issues), our law could be radically improved by
incorporating Fair Use.