How to address copyright bill flaws

The federal government has been faced with a tough balancing act updating intellectual property laws.

On one side, the feds face pressure from lobby groups (such as the Canadian Publishers Council), American politicians, the software and entertainment industries who are calling for the heads of people who defeat technical protection measures (TPMs) designed to prevent unauthorized copying. On the other side, the government has been taking fire from software development and security experts who feared Bill C-61, tabled in the House of Commons last month, would be too much like the American Digital Millennium Copyright Act.

The major issue for the IT industry is the question of who is allowed to break the locks and why.

Assuming Bill C-61 passes without any changes — and we’re not predicting with 100 per cent certainty it will — the end result will be a law that makes it illegal, in most cases, to circumvent TPMs on software or multimedia recordings. One major bone of contention for critics is the set of circumstances under which it’s legal to circumvent TPMs. Critics started condemning Bill C-61, an Act to Amend the Copyright Act, even before it was tabled in the House of Commons last month by Industry Minister Jim Prentice. Prentice responded by including exemptions for software developers who defeat TPMs to ensure software interoperability, conduct encryption research or “assess the vulnerability” of a system.

These are just some of the exemptions that were included in Bill C-61 as a result of lobbying late last year and early this year, but that do little to satisfy some critics. For example, blogger Russ McOrmond is concerned with the fine print in the bill, and the fact that it’s open to interpretation. He told ComputerWorld Canada that if passed into law, the amendments to the Copyright Act would strongly discourage security researchers because they would not know whether they broke the law until they were charged and their cases made their way through the courts. He also predicted a reduction in civil penalties to $500 would actually encourage entertainment companies to sue alleged copyright violators more often.

Bill C-61 has one major problem common to complaints-driven laws with civil or criminal penalties: If you are hit with a complaint, you will likely have to hire a lawyer and even if you win, your legal defence will empty your wallet quickly.

For an open source developer or security researcher, thinking long and hard about the worst-case scenario can conjure up images of a long summer spent in court explaining to a judge why you broke an electronic lock.

But, as with any other law, before we think about the worst-case scenarios, we should probably think about the intent of the law. Software developers and recording companies put digital locks on their work to prevent unauthorized copying, and they normally want to be paid nearly every time a copy of their work is made. Whether it’s a door, a car, a bicycle or a software program, owners lock their property for a reason. The government is making it illegal to break the locks so they can help prevent behaviour that amounts to theft, not to make criminals out of IT guys poring through code looking for potential security problems.

Canada’s Copyright Act needs some work, and clearly Bill C-61 should be of concern to security experts and open source developers. But the bill has only passed first reading, it’s not law yet. The government is on the right track and is trying to respond to the concerns of the IT industry.

Members of Parliament still have time to propose amendments before it is re-tabled for second reading in the House of Commons. In the meantime, ask yourself what’s more constructive: hurling accusations at the ruling Conservatives alleging they are fascist-leaning pawns of the American imperialists and software industry titans? Or sending proposed amendments to the law to your Member of Parliament?

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Jim Love, Chief Content Officer, IT World Canada

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