Copyright Is Back: Why Canada is Keeping the Flawed Digital Lock Rules

In trying to understand the government's copyright strategy, it increasingly apparent that this is really an omnibus copyright bill that combines two bills: the Copyright Modernization Act together with the Reduce U.S. Pressure Copyright Act. The Copyright Modernization Act portion is a reasonably balanced piece of legislation that seeks to strike a compromise on many key issues:

• on fair dealing, it adds education, parody, and satire as categories. This isn't as far as the government could (or should) go in creating a flexible fair dealing provision, but the government deserves credit for sticking by the fair dealing reforms in the face of a relentless misinformation campaign by publishers and copyright collectives.
• on education, it creates several limited new exceptions, that arguably are too limited, but still mark an improvement over the current act.
• on consumer rights, it creates important new exceptions for time shifting, format shifting, and backup copies. Those exceptions are undermined, however, by the digital lock rules.
• on Internet providers, it creates a notice-and-notice system, which has proven effective and will require active cooperation from ISPs to deal with allegations of infringement on their networks.
• on creativity, it establishes the new remix provision that protects individuals who create their own non-commercial mashups
• on enforcement, it distinguishes between commercial and non-commercial infringement for the purposes of statutory damages (which will not stop Hurt Locker-style lawsuits) and establishes new powers to target websites that enable infringement (despite the fact that CRIA has an ongoing lawsuit against isoHunt using current Canadian law).

While my copyright bill would look somewhat different, the same can be said for virtually all stakeholders and interested parties. Perhaps that is a sign of a compromise copyright bill.

On the other hand, a portion of this bill might be described as the Reduce U.S. Pressure Copyright Act. This part of the bill contains the digital lock provisions, which are amongst the most restrictive in the world. As the government's own clause-by-clause analysis of the bill states, these provisions apply even when there is not "an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions." It is worth noting that:

• the government admitted at the C-32 legislative committee that the digital lock rules trump education rights
• the digital lock rules extend far beyond those required for compliance with the WIPO Internet treaties
• many of our trading partners, including New Zealand and Switzerland, have adopted more balanced digital lock rules
• Canada itself proposed a more balanced approach in Bill C-60, a prior copyright bill
• even the U.S. offers more flexibility than Canada, with an exception for DVD circumvention in some circumstances and a mandatory review of the digital lock rules every three years
• concerns over digital locks was the top issue raised during the 2009 national copyright consultation and in the submissions to the Bill C-32 legislative committee. As noted yesterday, a wide range of large stakeholders, including virtually every education group in Canada, consumer groups, and technology companies all support compromise language
• creator groups such as the Documentary Organization of Canada have called for compromise language on digital locks
• Canadian copyright collectives have expressed doubt about the benefits of digital lock rules. For example, CMRRA and SODRAC told the C-32 committee in their submission that "these measures would be unlikely to result in any substantial increase at all in legitimate online revenues for the music industry."

So why is Canada sticking to digital lock rules when a more balanced approach that is consistent with the WIPO Internet treaties is readily available?  The answer is obvious - the digital lock rules are primarily about satisfying U.S. pressure, not Canadian public opinion. The U.S. pressure on Canada is not a secret with criticism of past bills and regular demands for action on copyright in return for progress on other border and trade issues. Nor is the internal Canadian response:

• Prime Minister Harper personally promised U.S. President George Bush in 2008 that Canada would pass copyright reforms
• former Industry Minister Maxime Bernier raised the possibility of leaking an advance copy of the copyright bill to the U.S.
• former Industry Minister Tony Clement's copyright policy advisor encouraged the U.S. to pressure Canada by elevating us on their piracy watch list
• former Canadian Heritage Minister Bev Oda caved to U.S. pressure by enacting an anti-camcording bill despite departmental analysis that no changes to the law were needed
• an official at the Privy Council Office leaked the content of mandate letters for then-Ministers Prentice and Verner
• Canada participated in a WTO complaint on copyright against China at the request of the U.S. despite the inability to amass credible evidence of harm against Canadian interests

After years of false starts, it is clear that this copyright bill will pass, likely before the end of the year. While there is much to like in the bill, the unwillingness to stand up for Canadians on digital locks represents a huge failure. Moreover, it sends the message that when pressed, Canada will cave. The Europeans have already figured that out with their extensive intellectual property demands in the Canada - EU Trade Agreement and the U.S. will no doubt be back again, this time demanding new IP enforcement rules not included in this bill. If global intellectual property developments over the past two decades teach anything, it is that efforts to reduce foreign pressures invariably lead to a brief respite before escalating demands and political pressures. The failure of C-11 is that the government isn't relieving the copyright pressure. It is asking for more.