How Bill C-61 can discourage coders

As members of Parliament wait for the House of Commons to resume next month, Canadians are up in arms over Bill C-61, which was tabled just before the summer recess.

Much of the controversy surrounding Bill C-61, an Act to Amend the Copyright Act, is over the limitations on copying music and videos, but some experts say the bill also has serious ramifications for security researchers and software developers. Let’s take a look at the history behind it, why the government wants to amend the law, what’s actually in the bill and what critics are saying.

In 1996, Canada signed the World Intellectual Property Organization (WIPO) Copyright Treaty, which is designed to provide copyright protection to software writers and those who compile databases.

The history of copyright reform

The treaty is designed to provide copyright protection to software writers and those who compile databases. It’s really a special agreement on the Berne Convention for the Protection of Literary and Artistic Works, originally signed in 1886 – a mere decades after the advent of the telegraph but generations before users starting pirating software and movies.

The intent of the treaty is to deal with rights of authors to distribute, rent and communicate their works to the public. The works could include software programs, cenematographic works and “works embodied in phonograms” such as music.

The treaty requires signatories to pass laws against the “circumvention of technological measures,” or encryption methods, used by authors to prevent their works from being altered, or to manage their rights to license, collect and distribute royalties for their works.

And this is a major bone of contention for some open source programmers and security experts because programmers often circumvent the TPMs to get at the source code.

The American solution

The U.S. ratified the WIPO Treaty in the form of the Digital Millennium Copyright Act in 1998. Some critics of the current Canadian government have accused them of making bill C-61 too much like the DMCA.

The DMCA prohibits the manufacture or selling of devices or services used to circumvent technological measures under certain circumstances. It includes exemptions for reverse engineering software and encryption research.

Critics contend the DMCA discourages research because it’s really the courts who determine exactly what is and what is not legal, after a person is charged or sued.

“A decade later, the DMCA is still being argued in the courts, and there’s the government of Canada saying we’re providing clarity around the rules,” said Russell McOrmond, who heads Digital-Copyright.ca and writes the Enterprise Insights blog for IT World Canada. “The United States authored the WIPO treaties and their implementation doesn’t have clarity a decade later and it’s being argued in the courts.”

But an Industry Canada official argues the Canadian government has learned from the DMCA.

“We were aware of the DMCA, what it said and what some of the problems were with it,” said Albert Cloutier, director of the copyright and international intellectual property policy directorate at Industry Canada.

But it’s difficult to think of exemptions that take into account every possible circumvention of TPMs that are not intended to infringe copyright, said Michael Geist, a University of Ottawa law professor and administrator of the Fair Copyright for Canada Facebook group.

“The experience in the U.S. has been they have identified exemptions and almost every few years they go through a process to identify more,” Geist said. “A better approach is to say we only want to target cases of real infringement, not these other kinds of activities.”

How the Liberals tried to ratify WIPO

In 2005, the minority Liberal government tabled Bill C-60, which gave copyright holders the right to obtain damages or court injunctions against anyone who circumvented TPMs for the purpose of infringing copyright. It also provided for sanctions against anyone who offers a service designed to circumvent TPMs, where that person “knows or ought to know” the service would result in copyright infringement.

Bill C-60 was never passed into law because then Prime Minister Paul Martin’s government was defeated, paving the way for the Conservatives under Prime Minister Stephen Harper to step into office.

Enter Jim Prentice and Bill C-61

Last June, Industry Minister Jim Prentice tabled Bill C-61 in the House of Commons, just before the lower house recessed for the summer.

Bill C-61, if made into law, would make it illegal to circumvent or bypass technologies that control access to protected material. Section 41 would also make it illegal to provide, market or import tools designed to enable circumvention.

Like the DMCA, it includes provisions that allow reverse engineering, security testing and encryption research.

“We’ve tried to be clear in our exceptions,” Cloutier said. “The government believes the (copyright) holders need these new measures to protect their materials in order to give them the confidence to develop new business models and offer more to consumers in a digital environment.”

But critics say Bill C-61 is still overly restrictive.

“It errs on the side of making technology illegal as opposed to making behaviour illegal,” said Bob Young, CEO of online publisher Lulu Inc. who founded Linux vendor Red Hat Inc. in 1993. “It’s the equivalent to making screwdrivers and pliers illegal because they can be used to break and enter instead of making the act of breaking and entering illegal.”

Geist said the best way to address the problem is to make it illegal to circumvent TPMs only when you’re doing it to enable copyright infringement.

Brian O’Higgins, chief technology officer of Ottawa-based Third Brigade Inc., agreed. “When you start going down the route of exemptions and then you try to draft language around it, you start to look silly after a few years because the exemption tha