After two failed attempts at updating Canada’s copyright law with Bill C-60 and Bill C-61, the federal government’s latest approach is accepting submissions and engaging in public consultations first.
“The problem last time was there was no consultation. The bill was just released and there were very short time frames,” said Tamir Israel, staff lawyer at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC).
The technology law clinic, established at the University of Ottawa’s Faculty of Law, recently launched a Web site to educate the public on the latest legal issues and provide a means of getting involved in the debates.
CIPPIC’s Web site provides a lot of legal information and detail, but the average person might not want to go through all of that during their initial phases of exploring an issue, Israel pointed out.
DigitalAgenda.ca is an action-oriented site that targets a grassroots audience, he said. There’s the informational side, but also a forum where Canadians can discuss these issues and produce documents that reflect the outcome of the debates.
The inclusion of an Idea Torrent allows registered users to log in, post ideas, comment and vote. CIPPIC will then take the most popular ideas, place them into a document and submit it to consultations or letters to MPs.
Israel expects the MPs will pay attention. “It shows for one thing that people are engaged with the issues and care about them. On the other hand, it’s a very democratic system,” he said.
The current issue is copyright consultation, which focuses on fair dealing and digital rights management (DRM). Other issues will become higher priority as their legislation deadlines approach, said Israel.
CIPPIC wants to expand fair dealing — what you can do with copyright material without infringing the copyright itself, Israel explained. “For example, it’s still illegal to use your VCR to record a TV show,” he said.
Without a fair and balanced bill, many Canadians might find themselves “on the wrong side of the law” because it applies to a lot of activities we do on a day-to-day basis, said Israel. Using PVRs to watch programs a month later or multiple times could become activities people get sued over, he said.
Legal protection with statutory damages for circumventing digital rights also goes “a little too far,” according to Israel. “What we’ve seen in the States is a move towards very draconian penalties, where we’ve seen damages of $1.9 million for 25 songs. If we move in that direction, that will impact a lot of Canadians,” he said.
Ravi Shukla, a Toronto-based lawyer with Lang Michener LLP who specializes in IT and Internet law, wonders whether the government has the ability to pass legislation before another election.
“It seems this time they want to be able to say they went through this consultation process, but how many people can realistically participate in such a quick process during … summer vacation time? It just leaves you shaking your head as to what is the strategy here,” he said.
The recording industry wanted to make a point south of the border, according to Shukla, and if stronger legislation passes in Canada we could see similar lawsuits up here. “Do I think, at the end of the day, if legislation like Bill C-61 were to get through, would it have an impact on the day-to-day lives of Canadians? Yes, absolutely,” he said.
Net neutrality is another topic on DigitalAgenda.ca’s list. CIPPIC is particularly concerned over its impact on application development.
The ability for Internet Service Providers (ISPs) to throttle certain applications over others can hurt innovation, he said. “If we allow the gatekeepers, the ISPs, to start deciding which applications to favour or not favour, it’s going to cause a lot of problems down the road,” he said.
As long as there is transparency, Shukla doesn’t see anything wrong with companies saying they have to monitor their networks and shape traffic based on different traffic patterns at different times of the day. “I think service differentiation would be great for consumers,” he said.
“If you want to pay higher fees to an ISP that only recovers against subscribers, but that way you feel more comfortable that no games are being played on the content side, then that should be your option versus somebody else that says, ‘I’m good with traffic shaping and I’ll take lower subscriber fees, thank you,’” said Shukla.
The Electronic Commerce Protection Act (ECPA) is also highlighted on the DigitalAgenda site. CIPPIC supports Bill C-27, which aims to combat malicious activities such as spam, malware, spyware and phishing.
The current proposal is very good, according to Israel. While Canadians have a Do Not Call registry list, allowing you to opt out of phone calls, there is no analogous regime for e-mails, he pointed out.
“It’s basically about getting Canadians informed consent before sending them spam or other types of e-mail that could be used. It also gives a bunch of regulatory agencies in Canada the power to investigate and instate penalties against this type of activity,” he said.
Lawful Access is a fourth issue on the site. Bill C-46 and Bill C-47 are complimentary bills bringing police investigation tactics into the digital age, he said. While modernization is important for law enforcement and national security, according to Israel, the bills have gone “a little broader” than necessary to achieve their purposes.
One of the provisions is they want ISPs to provide identification information for customers without a warrant. “The potential for abuse there is very high,” said Israel. If someone posts anonymously on a political discussion forum, for example, the police can go and find out who it is with “no questions asked.”
“The government has said very recently they are taking digital issues very seriously … What that means is a lot of the ways that Canadians interact with their digital world are going to change over the next little while because of this,” said Israel.
Shukla believes the landscape hasn’t settled yet and it’s too early to lock certain models in place.
“We are still at the early days of the Internet revolution. I think there are companies we have not heard of that are going to be launched and dominate sectors of the Internet … It looks to be Google is this tremendous force on the Internet, but I wonder five years from now,” he said.