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Behind the Scenes of Bill C-32: The Complete Ministerial Q & A

Wednesday September 21, 2011

With the House of Commons back in session this week, it should not take long for copyright reform to reappear. Canadian Heritage Minister James Moore has already indicated the bill will be reintroduced unchanged from Bill C-32 and that the legislative committee will pick up where it left off without the need to hear from any persons or groups who appeared under Bill C-32. That suggests things could move very quickly with a few sessions and a march to passing the bill before the end of 2011.

My posts in the months leading up to the bill gave some sense of what was likely on the way and more recently I've written on the Wikileaks cables that demonstrate the remarkable U.S. influence over the Canadian copyright agenda. I've now obtained a series of documents that provide some useful insights into the behind-the-scenes work within the government and the C-32 legislative committee. While access-to-information requests typically exclude information about government bills, the death of Bill C-32 meant the information was fair game. Over the next week, I plan daily posts of various documents including the government's full clause-by-clause analysis, its C-32 committee witness strategy, and an analysis of the submissions provided to the committee by dozens of groups and individuals.

The series starts with the complete question and answer document [15 MB PDF] prepared for Ministers Moore and Clement for their committee appearance in November 2010 (Scribd version embedded below). The document covers a wide range of anticipated questions and the official government response to each. The answers will not surprise as anyone following the issue will have heard the Ministers and other MPs repeat them regularly. Nevertheless, the more interesting scripted responses to key questions include (with some context in square brackets):

  • C-32's consumer exceptions and digital locks: the response comes clean that the government is indeed adopting an approach where digital locks trump consumer rights. The government justifies its approach with the refrain that consumers can decide whether or not they want to buy products with digital locks [which is inaccurate for some students who are required to purchase digitally-locked books for their courses].
  • C-32 digital lock rules going far beyond what is required by the WIPO Internet treaties: the government does not dispute this and has no answer other than to say it believes the bill represents good policy.
  • C-32 digital lock rules and permitting circumvention for non-infringing purposes: the government does not have a direct response, choosing instead to talk about protecting jobs and a limited number of exceptions. [The response doesn't actually address why non-infringing purposes, which mean the intended use is legal, shouldn't qualify for an exception.]
  • C-32 digital locks rule exceptions not in-line with U.S. exceptions: the government response is that the Canadian market is different. [This is correct, which is precisely why the DMCA approach on digital locks is inappropriate.  Moreover, the question fails to note that the U.S. permits circumvention of DVDs in some circumstances, whereas the Bill c-32 did not.]
  • Doesn't C-32 create exceptions that mean "anything goes"?: the government response notes that the overwhelming majority of Canadians are law abiding and will follow the rules. [While this response addresses exceptions, that view is precisely why the digital lock rules - which presume that no one is law abiding and therefore the lock trumps virtually all rights - gets it wrong.]
  • The YouTube remix exception: the government does a nice job explaining why it is needed and how it features important built-in safeguards to prevent misuse. [Interestingly, the government reiterates its view that Canadians are law abiding here too.]
  • Fair dealing for education: the government response reiterates the reality that "fair dealing is not a blank cheque" and is even broader in other countries
  • The "book burning" provisions that require the destruction of course materials after 30 days: the government argues that destruction of materials "are an essential part of the balance."
  • Will the bill allow for suits against individuals for large amounts like in the U.S.?: The government says the bill is designed to ensure Canadians will not face disproportionate penalties for infringement. [The Hurt Locker lawsuits demonstate the bill does not go far enough in order to achieve this objective.]
  • Why has Canada caved to US pressure?: The government notes differences from U.S. law including one digital lock exception, notice-and-notice for ISPs, and statutory damages reform. [The Wikileaks cables obviously tell a much different story]
  • Will C-32 get us off the US Piracy Watch list? The government gets this one exactly right - "Canada does not recognize the validity of the Special 301 process and considers it to be flawed. The Report does not employ a clear methodology in its country ranking, as it relies on industry allegations rather than empirical evidence and analysis."
  • Do the C-32 exceptions meet the Berne Convention requirements?: The government says yes.

Coming tomorrow: a 150 page clause-by-clause internal analysis of Bill C-32, also obtained under Access to Information. c32ministerqanda

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