In an effort to combat the Canadian government’s impending copyright reform bill – legislation which some say could affect privacy and property rights for Canadian consumers and businesses – one industry activist is taking his fight to the digital streets.
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Michael Geist, research chair of Internet and e-commerce law at the University of Ottawa, said the Conservative’s copyright reform bill is likely to include anti-circumvention provisions for technical provision measures (TPMs), a tool used to restrict the use of a digital work, making it illegal to modify, improve, back-up or make products that interact with any devices fitted with a TPM. He compared the impending legislation, rumoured to be unveiled in the next few weeks, to the Canadian government’s version of the U.S. Digital Millennium Copyright Act (DMCA).
To get the message out to Canadians, Geist has started a digital awareness campaign on both Facebook and YouTube. His YouTube video outlines 30 things that Canadians can do if they oppose the potential bill, including writing to various governmental bodies and interest groups. And to take advantage of the social networking tool Facebook, Geist has created the Fair Copyright group; which has signed up over 2,000 members since its launch earlier this week.
Geist’s primary argument is that the inclusion of anti-circumvention legislation eliminates user rights in the digital era by squashing the use of digital works for research, private study, criticism and news reporting. By bowing to U.S. lobbyist pressures, he said, Canada is following the disastrous lead of the DMCA legislation and significantly harming to citizen’s rights in the process.
“It’s puzzling and very disappointing to see a government moving forward in this fashion,” Geist said. “It’s also worth nothing that the last time we even had a consultation on digital copyright in this country, with the government even making an attempt to speak with Canadians about this issue, was back in 2001. This is really a lifetime ago for new technology and changes to the Internet, so surely the government should be listening to Canadian and not just to the U.S. government some well heeled lobby groups.”
But this doesn’t seem to be the case, as Geist said the legislator behind the expected bill, Industry Minister Jim Prentice, has not made the time to consultant with the user community.
“To me this is very striking, especially when you look back to last week’s spectrum auction results, where Minister Prentice indicated soon after that he had given each of the major telecom companies a full hour to make their case on both sides of the issue,” Geist said. “We know that in the copyright issue, he has spent time with the U.S. Ambassador to Canada David Wilkins, but there’s no sense that he has provided any time for consumer groups, privacy groups, researchers, or educators who are going to be directly affected by the legislation.”
This whole debate could also be of interest to IT security researchers, some who say that a poorly drafted law around TPMs could restrict their ability to protect their clients from viruses. Brian O’Higgins, CTO at Ottawa-based Third Brigade, said that making it illegal to remove a TPM, which could show up in harmful malware files, can lead to the unintended negative consequence to copyright reform laws.
“Security researchers look at potential schemes, break existing ones, and try to build a better protection,” O’Higgins said. “This could mean that kind of research is illegal. For example, what if there’s a vulnerability in a commonly used piece of software that lives in all servers and that vulnerability is related to a TPM mechanism. What do you do?”
While copyright reform has been an on-and-off issue for the government throughout the decade, the debate has been a reignited for privacy activists like Geist after the government’s throne speech this past October. It was at that speech that the Conservatives expressed its intention to create news laws that adopt the World Intellectual Property Organization’s (WIPO) copyright treaty. The WIPO treaty, adopted in 1996, provides additional protections for copyright due to advances (at the time) in information technology, including anti-circumvention laws for TPMs.
The last attempt for copyright reform occurred in 2005 when the Liberal government’s Bill C-60, which aimed to implement the WIPO copyright treaty and its prohibition of TPM circumvention, was struck down by a non-confidence motion by the Conservative opposition.
And while many industry activists are opposed to WIPO, Barry Sookman, a lawyer specializing in intellectual property litigation with legal firm McCarthy Tétrault’s Toronto office, believes it’s time the government finally signs on with the treaty it committed to ratify nearly 11 years ago. “The government has always stated that the intention of the next series of copyright reform would be to enable Canada to ratify with the WIPO copyright treaty,” Sookman said in a recent interview with ComputerWorld Canada. “I would highly doubt the government would cherry-pick and only implement some of its provisions.”
While Geist is an opponent of the WIPO treaty, he does recognize the government’s commitment to its implementation. However, he said the treaty provides far greater flexibility than what is found in the U.S. DMCA and that Canadian copyright reform can meet the WIPO standard as well as the need to preserve the copyright balance. And instead of focusing on limiting and infringing privacy and property rights, Geist said lawmakers need to engage in a process that modernizes copyright legislation.
“Canada doesn’t have protection for parody, fair dealing, time shifting, or other legal uses of copyrighted material,” Geist said. “And there’s some irony here that, in the same week that the TiVo finally comes to Canada, it is still the law in Canada that people who use the device are infringing copyright.”
Another angle that many law makers have not addressed, Geist said, is the fact that restrictions on removing TPMs in hardware devices could be seen as a violation of personal property rights. This might add a new dimension to the debate and could be a determining factor in whether or not the bill is eventually passed. According to Geist, while the NDP will clearly oppose the legislation, the Bloc Québécois may think twice.
“Property rights are a provincial matter and the Bloc is all about preserving these provincial protections,” Geist said. “Once they take a closer look at this bill, they may see this represents a huge incursion into provincial jurisdiction.”
Geist said it is unknown what the Liberals will do, but he hopes his digital awareness campaign, and others like it, will help the government realize they are severely underestimating the interest many Canadians have with this issue.
“Anyone who’s online recognizes that their digital rights are at stake,” Geist said. “And I think that what we’re going to see happen over the next 60 days is MPs from all parties are going to hear from a large number of constituents asking, ‘why is Canada caving to U.S. and lobby group pressure?”
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