What if I was the Bill C-32 lead from the Official Opposition Liberals?

On Thursday I met for a half hour with Pablo Rodriguez, MP for the Quebec riding of Honoré-Mercier,and the Heritage critic for the Liberal party. Copyright is jointbetween Heritage and Industry, so this is a key MP when it comes tothe future of Copyright bill C-32. (See also: List of MPs I havemet)

I came with some of my regularmaterial:

We started with me introducingmyself, and my motivation for being involved: I am here as a creatorwho is trying to protect fellow creators from some of the very thingsthey have been asking for.

I went through the “copyright4 things”, at which point he started to ask questions. He saidthat I was contradicting much of what he had heard from other groups. I explained that this is natural, given the representatives of thesegroups do not have the necessary technical background in order tounderstand the impact of this legislation on real-world technology.

He was surprised to hear thatit was possible to infringe copyright without unlocking a digitallock, something that every technical person knows. If you take abit-for-bit copy of a DVD, for instance, the resulting DVD isidentical to the original. You can't view the DVD without thedecryption key, but you can make exact duplications of the encryptedcontent without caring about the key at all.

I then spoke about how manyforms of DRM are made up of two locks: an access control (encryption)on the content such that it can only be accessed with the rightdecryption key, and a lock on the hardware and software “owned”by the audiences which contains the content decryption key. Iindicated that while most of the discussion was science-fiction aboutwhat the lock on content could do, the real-world technology createdfar more controversies associated with the lock on the devices:something the copyright holder clearly does not “own” andshould have no standing in controlling.

There were many conversationsat that level. I believe that my core message was clear, which isthat far from protecting copyright and the interests of creators,misapplied and misunderstood technical measures are a great threat.

We then moved onward to aquestion politicians love to ask: If you were me, what would you bedoing? What are the answers to the problems?

There are many ways to answerthis.

I stated that current Canadiancopyright law adequately protects the interests of copyright holders,and there is no crisis. Most of the alleged problems don't actuallyexist, some are self-inflicted, and only a tiny minority of issuesactually need legislative clarification. While copyright clearlyneeds updating, C-32 heads in the opposite direction and will onlyharm the very people it alleges to protect.

I mentioned that the FederalCourt and Federal Court of Appeals gave the recording industry ablueprint to sue music fans. It was their choice and not a mythicallimitation of Canadian law that has meant that lawsuits have not beenlaunched. I also suggested that what is happening in the musicindustry is not about infringement, but about the changingrelationships between composers, performers and makers of soundrecordings brought on by new technology.

The idea that Canadian law isstronger than US law in many ways came up. I mentioned moral rightsand Canada's ratification of the WIPO Rome convention, suggestingthat there are many more examples. We also spoke about how some areattacking the roll of WIPO now that majority-world countries havestarted to push towards treaties for the visually impaired,limitations and exceptions, and a more honest development agenda. Isuggested that those trying to move international Copyrightdevelopment to new forums like ACTA are anti-copyright in that theydon't like the balance that exists in Copyright law or increasinglyat WIPO.

But that doesn't address hisshorter-term question, which is:

What should we doabout bill C-32

Bill C-32 is an omnibus bill,covering an excessive number of complex and largely unrelated topics. We need to move to having a larger number of smaller bills which canbe reasonably studied and debated.

If the bill goes to committeebefore second reading, anything can happen. The following is what Iwould be pushing for if I were there:

  • renaming the bill to: The1996 WIPO treaty implementation act.
  • declare as off-topic for thisspecific bill any issue that is not directly related to Canada'simplementation of the WIPO Copyright Treaty (WCT) or the WIPOPerformances and Phonograms Treaty (WPPT), both adopted in Geneva in1996.

This is not to suggest thatother issues aren't important, but to suggest that they are importantenough to deserve separate bills to be debated separately.

These two treaties arethemselves quite complex, with many possible interpretations of thelanguage within them. There are a few key issues which we need towatch carefully. I will reference the WCT article, even thoughsimilar language is used in WPPT as well.

  • There are harmful and helpfulinterpretations of WCT Article 6 (right of distribution), Article 8(Right of Communications to the Public) and Article 12 (Obligationsconcerning Rights Management Information). We just need to ensurethat the helpful interpretation is used in Canada.
  • There are relatively harmlessand greatly harmful interpretations of WCT Article 11 (Obligationsconcerning Technical Measures). This has been the focus of thedebate, both at WIPO back in 1996 as well as each time legislation istabled in any country.

    I believe the ideal solutionis to implement legal protection for technical measures in theappropriate provincial legislation such as contract, e-commerce, andproperty law. I clarify how this would fulfil WIPO treatyrequirements in the bill C-32FAQ. This would protect the legitimate uses of technicalmeasures by copyright holders, and entirely avoid the abuses.

    A lesser second option is toadopt the language from Liberal bill C-60, which was a translationinto Canadian law of the WIPO treaty language.

    Under no circumstances shouldthe concept of “access controls” or “access” beadded to Canadian Copyright law. These concepts were imported intobill C-32 from the USA DMCA, were rejected in 1996 at WIPO, and mustbe rejected in Canada. These concepts create an opt-out of thecontours of Copyright. Proponents of these types of polices shouldbe understood as being anti-Copyright, and these concepts should beconstantly denounced by those of us who respect the traditionaldefinitions and goals of Copyright.

  • Concepts of “nationaltreatment”, where copyright holders in any WCT country need tobe offered the same treatment as Canadian creators. This may impactthings such as compulsory licensing schemes (IE: Private CopyingLevy) as collectives outside of Canada will be able to request a cutas well. Canada may be forced to repeal this regime, or create aregime closer to the PLR (Public Lending Right) which is not part ofcopyright at all, but is a properly administered government program.

I believe if we ratified the1996 WIPO treaties, it would reduce the political pressure onCanadian politicians. The USA has been abusing our contemplationabout these treaties to falsely accuse Canada of not having copyrightlaw that adequately protects the interests of copyright holders. Those who have compared Canadian and US copyright law know thatCanadian law is already more tilted in favour of copyright holders,but these facts aren't well known by politicians.

It isn't like these extremistswill stop, but it may cause politicians to become more curious aboutwhat is really being asked of them. I don't think the US will behappy until all Canadian knowledge base sectors are wiped out, and wehave radically increased our royalties trade deficit with the USA.

There were two primary excuses the United States Trade Representative used for adding Canada totheir priority watch list in their 2010Special 301 Report:

  • not yet ratifying the 1996WIPO treaties
  • not allowing police andboarder officers the ability to search and seize property without ashred of evidence of infringement and without a court order.

I consider it obvious that weshould reject the second proposal out of hand for being outrageous.

I believe that the two 1996treaties head us in the wrong direction and will make things worsefor creators. I still believe that for shorter-term politicalreasons we should ratify. My hope is that attention can then move tofuture WIPO treaties which will hopefully focus on limitations andexceptions, including those necessary for the visually impaired andto have a development agenda that allows other countries to developthe way current net-exporting countries like the USA developed. Newer WIPO treaties amend past WIPO treaties, and I fully expect tosee treaties which correct the serious mistakes made in 1996. Copyright law is clearly in need of modernization.

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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