A first look at Canada’s “Born in the USA” Copyright bill.

Having a chance for a quick read of Bill C-61, I can say that it will likely be decades before we fully understand how this bill will be interpreted by the courts. Contrary to what the Minister claimed, this bill reduces certainty in the marketplace, not increases it.

The largest portion of this bill is a Canadian DMCA, which is to say an implementation of the 2 1996 WIPO treaties and an ISP liability regime. The ISP liability regime is similar to the Liberal Bill C-60 from 2005 in that it codifies the current voluntary regime used by ISPs which is notice-and-notice.

The 2 1996 WIPO treaties are well understood to be a policy laundering of the 1995 National Information Infrastructure (NII) implementation bill, a Clinton/Gore era bill which was largely authored through consultations with the then successful copyright holders who saw new media and the Internet as a threat. The intention of the NII bill, the 2 1996 WIPO treaties, 1998 USA DMCA, 2005 C-60 and now the 2008 C-61 is to try to put rules into place to favour the business models of old-media companies against new-media. This bill fulfils that intention well, with the Conservative government stomping on market forces and picking winners and losers in the marketplace.

This bill is different than the USA DMCA for obvious reasons. Prior to the DMCA the USA had a far more balanced Copyright regime than Canada’s current law, with Canada’s currently strong Copyright law being stacked in favour of incumbent copyright holders. The bill claims to address this difference by adding in a few copyright limits for time and device shifting, but unlike the USA’s living “Fair Use” regime, these limits are entirely useless. These limits either only apply to pre-digital works (videotapes, not DVDs), or can be wiped out entirely in contracts.

There is a reduction in statutory damages for non-commercial infringements where the status-quo of a maximum of $20K per infringing file would be reduced to a maximum of $500 for all files. While sold as a benefit to “users”, this is far from it. Copyright holders already had all the tools to sue unauthorized sharing of their works (such as recorded music vis P2P), but most had chosen not to use these tools. The two obvious reasons were the public relations nightmare of the statutory damages, and the fact that they wanted to confuse politicians into incorrectly believing they didn’t have the tools to sue. With this bill both of those reasons go away, and we should expect massive lawsuits — possibly without evidence of infringing activity, if the US experience is any indication.

My primary criteria for analyzing this bill were articulated earlier in the day:

  • Does “Making available” remove requirements for evidence of actual infringing activity (distribution, communication)?
  • Does “Legal protection for TPMs” apply to otherwise non-infringing activities? Does it create a new “Right of non-interoperability” for copyright holders, and a new “right to not hand keys over to owner” for IT device manufacturers?
  • Does the ISP liability regime require notices be truthful, with adequate consequences for invalid or false notices (Which are extremely common)? Will a court need to be involved to verify the validity before action is forced to be taken by the ISP beyond being a communications carrier (IE: notifying the customer of the notice)?

On the first two I’m not sure, and for the last we received a “notice and notice” regime.

The term “making available” is fortunately not included in the bill itself, which avoids that confusion. There is a new section 3(1)(j) which offers a new exclusive right “(j) in the case of a work that can be put into circulation as a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as the ownership of that tangible object has never previously been transferred with the authorization of the author in or outside Canada”.

For telecommunications, the language from the treaties was used: “to communicate to the public by telecommunication a sound recording of it in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public”. This is a clarification of our existing communications by telecommunications, although there was no evidence there were problems with the current law with respect to on-demand communications.

Legal protection for technical measures doesn’t seem clearly tied to infringing purposes. There are limits to these provisions, but their meaning is unclear. As an example, there is a “Interoperability of computer programs” section that claims to deal with making software interoperable with other software, but nothing about making software that is interoperable with content where technical measures are applied. This suggests to me that this bill creates a new enforceable “right of non-interoperability” where copyright holders will be able to encode their content so that it is only interoperable with specific devices. There are provisions in the bill to allow security research, but there is no clarity for their liability if they publicly publishing their research. If they are not allowed to author tools to protect security (including against unauthorized control of devices by manufacturers and copyright holders), as well as publish their research, there is no point to allowing the research.

There is no clarity that device unlocking will be allowed or disallowed.

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Jim Love, Chief Content Officer, IT World Canada

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