New copyright bill won’t put more money in pockets of creators

The latest in a series of copyrightbills was tabled this afternoon, this one numbered BillC-32. Like the Liberal BillC-60 tabled in June 2005, and the previous Conservative BillC-61 tabled in June 2008, the purpose of the bulk of thebill is to change Canadian law such that Canada can ratify the highlycontroversial 1996 WIPO treaties. While past WIPO treaties struck abalance between various competing interest, these treaties are seenas giving intermediaries such as publishers and technology companiesfar too much influence, to the detriment of both creators andaudiences.

While others disagree, I donot believe copyright infringement and compensation are directlylinked: lowering infringement doesn't increase revenues, andincreased infringement doesn't decrease revenues. Skimming the bill Idon't see how this bill will reduce copyright infringement, or moreimportantly provide better revenues to compensate creative Canadiansfor their valuable contributions to our society.

At its core, Copyright is aregulation on a series of activities. These activities, if done bysomeone other than the copyright holder, require the permission ofthe copyright holder. In some cases permission is not required, onlypayment (a levy). It then makes sense to talk about changes incopyright in terms of various activities.

For this first look at thebill I will break down various provisions into three grouping, anddiscuss their legal status under this bill: activities unrelated tocopyright, third party liability, legitimate behaviour, andillegitimate behaviour.

Legal status ofactivities unrelated to copyright

The activities that brought meinto copyright are issues which I don't consider to legitimately berelated to copyright. One example that comes under the term Paracopyrightis legal protection for technological protection measures (alsocalled anti-circumvention, or legal protection for DigitalRights/Restrictions Management).

The WIPOCopyright Treaty, article 11, says:


ContractingParties shall provide adequate legal protection and effective legalremedies against the circumvention of effective technologicalmeasures that are used by authors in connection with the exercise oftheir rights under this Treaty or the Berne Convention and thatrestrict acts, in respect of their works, which are not authorized bythe authors concerned or permitted by law.

The WIPOPerformances and Phonograms Treaty (WPPT), article 18, hassimilar wording. Where it says authors, you should substitutecopyright holders as most copyright holders are not authors.

There are two techniquescommon with DRM systems which are unrelated to the rights ofcopyright holders which lobbiests have tried (often successfully) toconvince governments are covered by the treaties.

  • Locks on content such thatthe content can only be accessed by authorized devices. This is anew “right of non-interoperability” that never existed incopyright. This creates ties between copyright holders andtechnology companies which many analysts believe will lead totechnology platform monopolies. This reduction in interoperabilityalso has the effect of lowering sales as potential customers may notown (or ever want to own) the specific brands of devices which are”authorized” to access the content. Rather than legallyprotecting these ties, I have suggested that they should be made moreclearly prohibited under section77 of our Competition act.
  • Locks on devices where themanufacturer, rather than the owner, retains the keys. This meansthat it is the manufacturer, not the owner, that is able toultimately decide what software will run on the device. I believethat owners should be legally protected to hire a lockmith and changethe locks on their property, whether that property be their home,their car, or their computer (or information technology). I go intodetails about this in the article: Protecting property rights ina digital world. Beyond a respect for property rights, myinterest as a software author should be obvious: If technology ownerscan't make their own software choices, then they can't choose mysoftware.

Bill C-32 has many things tosay about technical protection measures. My reading is that thegovernment sided with the companies wanting to form technologyplatform monopolies over the interests of creators or technologyowners.


Third partyliability

Some copyright holders haveindicated that they don't want to sue actual copyright infringers,but prefer instead to go after what they consider to be “enablers”. What this really means is that they want to target providers oftechnology and services which could be abused. We as a society donot hold automobile manufacturers responsible for the use of theirproducts as getaway vehicles from crimes, and the same should holdtrue for communications technology providers.

There are times when theseproviders are the only entities which know the identity of the personwho is infringing, so it is reasonable to require that they act ascommunications intermediaries. This is why the previous twocopyright bills includes a notice-and-notice system where ISPs arerequired to act as an intermediary between copyright holders alleginginfringement and the alleged infringer. ISPs have always beenrequired to turn over identity information and other evidence ifrequested by a court.


Legal status oflegitimate behaviour

We need to look at activitieswhich Canadians believe are perfectly reasonable, and should not berestricted by copyright. Some of these activities wereinfringements in the past, and under this bill would not beinfringements. Others were unregulated in the past, but would nowbe infringing.


Overall, more reasonableactivities are infringing under this bill than under currentCopyright law. Since I do not believe behaviour will change, thisalone will mean the bill will increase rather than decreaseinfringement.

Legal status ofillegitimate behaviour

I expect there to be quite alot of talk in the media about unauthorized filesharing of music andother multimedia. These activities were already infringing, withstatutory damages of “a sum of not less than $500 or more than$20,000 as the court considers just” for each file infringed. While the private copying regime for music meant that a tiny bit moreevidence was required for music compared to other files, it too wasalready infringing.

The fact that copyrightholders have not made use of existing Copyright law should never havebeen misinterpreted as an indication that our law didn't allowcopyright holders to sue for illegitimate behaviour.


Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.

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