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Monday July 26, 2010
U.S. Developments Demonstrate Canada's C-32 Digital Lock Rules More Restrictive Than DMCA
Since the introduction of Bill C-32, I have consistently argued that the digital lock provisions are far more restrictive than what is required under the WIPO Internet treaties.  Now two recent developments in the U.S. demonstrate that the Canadian proposal is also considerably more restrictive than what is found in the U.S. First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an "access control" (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought.  With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states: Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners. In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner.  This is very similar to what many groups have been arguing for in the context of Canadian legal reform.

Second, this morning the U.S. Copyright Office released the results of its anti-circumvention rulemaking process.  The process, which runs every three years, identifies the new exceptions to its anti-circumvention rules.  The recommendation covers six exceptions including circumvention of DVDs for short clips for education, documentary filmmaking, and non-commercial videos, circumvention to unlock and jailbreak cellphones, circumvention of video games for testing of security flaws, and circumvention of access controls of e-books where all available e-book editions contain restrictions of the read-aloud function.

While Bill C-32 has a similar exception for locked cellphones, the U.S. version includes both unlocking and jailbreaking to allow users to play unapproved applications on their devices.  Moreover, the U.S. DVD and e-book exceptions go much further than the Canadian proposal.  In the DVD context, Canadian documentary film makers have raised precisely this concern, yet the U.S. now has an exception for it and Canada would not under C-32.  Similarly, the new YouTube exception in the Canadian bill - trumpted as progressive - is still subject to digital locks, while the U.S. has specific exception for it.  Taken together, it becomes apparent that the Canadian rules are far more restrictive than even the U.S. DMCA.

Copyright 2010, copycon, copyright

Since the introduction of Bill C-32, I have consistently argued that the digital lock provisions are far more restrictive than what is required under the WIPO Internet treaties.  Now two recent developments in the U.S. demonstrate that the Canadian proposal is also considerably more restrictive than what is found in the U.S.

First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an "access control" (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought.  With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.

In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner.  This is very similar to what many groups have been arguing for in the context of Canadian legal reform.

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Monday June 7, 2010
Setting the Record Straight: 32 Questions and Answers on C-32's Digital Lock Provisions, Part One
The digital lock provisions have quickly emerged as the most contentious part of Bill C-32, the new copyright bill.  This comes as little surprise, given the decision to bring back the digital lock approach from C-61 virtually unchanged. The mounting public concern with the digital lock provisions (many supporters of the bill have expressed serious misgivings about the digital lock component) has led to many questions as well as attempts to characterize public concerns as myths.  In effort to set the record straight, I have compiled 32 questions and answers about the digital lock provisions found in C-32.  The result is quite lengthy, so I will divide the issues into five separate posts over the next five days: (1) general questions about the C-32 approach; (2) the exceptions in C-32; (3) the missing exceptions; (4) the consumer provisions; and (5) the business provisions.  For those that want it all in a single package, I've posted the full series as PDF download. Before getting into the 32 questions, it is worth answering the most basic question - what are anti-circumvention or digital lock provisions?  The short answer is that they are provisions that grant legal protection to technological protection measures (TPMs).  In plainer English, traditional copyright law grants creators a basket of exclusive rights in their work.  TPMs or digital locks (such as copy-controls on CDs, DVDs, or e-books) effectively provide a second layer of protection by making it difficult for most people to copy or sometimes access works in digital format.  Anti-circumvention legislation creates a third layer of protection by making it an infringement to simply pick or break the digital lock (in fact, it even goes further by making it an infringement to make available tools or devices that can be used to pick the digital lock).  Under the Bill C-32, it would be an infringement to circumvent a TPM even if the intended use of the underlying work would not constitute traditional copyright infringement. The C-32 Approach This section features answers to the following questions: Isn't the C-32 digital lock approach simply the required implementation to comply with the WIPO Internet treaties? Penalties are reduced for individuals who circumvent for personal purposes.  Doesn't this solve the problem? The digital lock provisions in C-32 appear to distinguish between copy controls and access controls.  Isn't that enough to address concerns about the bill's impact on fair dealing? Are the digital lock provisions in C-32 constitutional? Is it true that C-32 requires teachers and students to destroy some digital lessons 30 days after the course concludes? Is it true that C-32 requires librarians to ensure that inter-library digital loans self-destruct within five days of first use? The U.S. has a regular review of new exceptions every three years.  Does Canada plan the same?
Isn't the C-32 digital lock approach simply the required implementation to comply with the WIPO Internet treaties?

No.  The WIPO Internet treaties require that countries provide legal protection for digital locks, but leave considerable flexiblity in how this requirement is implemented.  The U.S. has promoted its particular approach (as found in the DMCA and now in C-32) since before the treaty was even concluded, yet consensus in establishing the treaty was only achieved by adopting far more flexible language.

On the issue of legal protection for digital locks, the treaties require countries to provide "adequate legal protection and effective legal remedies" for technological protection measures.  The U.S. initially proposed:

(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.

(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).

This language did not achieve consensus support with many proposed changes.  A compromise position was ultimately reached using the "to provide adequate legal protection and effective legal remedies" standard.  Not only does this language not explicitly require a ban on the distribution or manufacture of circumvention devices (ie. software programs used to circumvent digital locks), it is quite obvious that the intent of the negotiating parties was to provide flexibility to avoid such an outcome.

U.S. law professor Pam Samuelson chronicles precisely what happened in her 1997 law review article, The U.S. Digital Agenda at the World Intellectual Property Organization:

At the diplomatic conference, there was little support for the Committee's proposed language on circumvention technologies. Some countries opposed inclusion of any anti-circumvention provision in the treaty.  Others proposed a "sole purpose" or "sole intended purpose" standard for regulating circumvention technologies. Some wanted an explicit statement that carved out circumvention for fair use and public domain materials.  The E.U. offered a proposal that would have required contracting parties to adopt adequate and effective legal measures to regulate devices and services intended for technology-defeating purposes.

Facing the prospect of little support for its proposal or the Committee's draft anti-circumvention provision, the U.S. delegation was in the uncomfortable position of trying to find a national delegation to introduce a compromise provision brokered by U.S. industry groups that would simply have required contracting parties to have adequate and effective legal protection against circumvention technologies and services.  In the end, such a delegation was found, and the final treaty embodied this sort of provision as Article 11.

This was, of course, a far cry from the provision that the U.S. had initially promoted. Still, it was an accomplishment to get any provision in the final treaty on this issue. The inclusion of terms like "adequate" and "effective" protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.

In the years since the treaty was concluded, the U.S. and a handful of supporters have argued strenuously that countries should ignore the compromise language and adopt the U.S. approach. Yet some countries have rejected that advice - Canada's own bill C-60 adopted a flexible approach, as does the most recent copyright reform bill from India.  New Zealand's law features many differences from the U.S. model and dozens of countries have added exceptions and changes to the basic U.S. approach.  In fact, the reality is that of the 88 states that have ratified the WIPO Internet treaties, fewer than half that have adopted the U.S. model. 

When the U.S. was in the process of implementing the WIPO Internet treaties into what became the DMCA, officials acknowledged the flexibility that exists in the treaty.  Marybeth Peters, the U.S. Register of Copyrights, said in testimony before the House Judiciary Committee on 16 Sept. 1997:

"Some have urged that the legislation not address the provision of products or services, but focus solely on acts of circumvention. They state that the treaties do not require such coverage, and argue that devices themselves are neutral, and can be used for either legitimate or illegitimate purposes. It is true that the treaties do not specifically refer to the provision of products or services, but merely require adequate protection and effective remedies against circumvention. As discussed above, however, the treaty language gives leeway to member countries to determine what protection is appropriate, with the question being whether it is adequate and effective."

And, later in the same testimony, the clearest statement: "the treaties do not specifically require protection for access controls in themselves."

Applied to C-32, the current bill goes far beyond what is strictly required to be compliant with the WIPO Internet treaties.  A more flexible, balanced implementation would still be WIPO compliant, provide protection for businesses seeking to use DRM, and maintain the copyright balance.

Penalties are reduced for individuals who circumvent for personal purposes.  Doesn't this solve the problem?

No.  First, claims that reduced penalties removes the impediment to Canadians circumventing digital locks for personal purposes assumes that concern for statutory damages is the primary motivator for a particular action.  I disagree. In the education world, teachers and students will not break the lock because academic guidelines will make it clear that they can't.  Similarly, research will also be stifled in the same way since researchers sign ethics documents when they apply for grants that their research plan is compliant with all laws.  They can't sign the document in this situation, regardless of the likelihood of damages.

Second, C-32 also makes the distribution and marketing of devices (ie. software) used to circumvent illegal.  This suggests it will be more difficult to get those tools (and perhaps risky), so the notion that people will circumvent in light of lower penalties is undermined by the underground nature of being able to do so.

Third, from a bigger picture perspective, rights holders have been complaining for years that the public does not respect copyright.  This bill is an attempt to revive respect for copyright by having the law better reflect current norms (and therefore make it more respectable).  However, you do not build respect for copyright by creating provisions that outlaw something but have the government indirectly say it is acceptable to violate its new rule.  C-32 should craft rules that generate support and acceptance in the public and thereby build support and acceptance for copyright more broadly.

The digital lock provisions in C-32 appear to distinguish between copy controls and access controls.  Isn't that enough to address concerns about the bill's impact on fair dealing?

No.  The distinction in one section of Bill C-32, which was also contained in C-61, does not address the fair dealing concerns in the bill.  First, the distinction between access controls (access to the work itself) and copy controls (copying the work) is a distinction without a difference for many of today's TPMs.  The digital locks used by Amazon or Apple on e-books or the TPMs on DVDs are both access and copy controls.  In order to effectively circumvent to be able to copy, you have to circumvent access.  The locks often permit access for some uses, but not others.  In other words, Canadians will often need to circumvent access to get to the copying and therefore will still be infringing under the law.

Moreover, even if a consumer could distinguish between access and copy controls, the tools themselves that would be used to circumvent for copy purposes cannot be lawfully marketed or distributed.  The notion that it is permissible to circumvent for copying but that the software needed to do so can't be distributed demonstrates how this distinction really makes no real difference. 

Finally, many of the other new exceptions - format shifting, time shifting, and backup copies - are covered by all digital locks, including both access and copy controls.

Are the digital lock provisions in C-32 constitutional? 

Possibly not.  The constitutionality of digital lock legislation has been examined in two articles by Canadian law professors.  Both conclude that the provisions are constitutionally suspect if they do not contain a clear link to conventional copyright law.  Their reasoning is that the constitution grants jurisdiction over copyright to the federal government, but jurisdiction over property rights is a provincial matter.  Digital lock legislation that is consistent with existing copyright law - ie. one that factors in existing exceptions - is more clearly a matter of copyright.  The C-32 provisions are arguably far more about property rights since the provisions may be contained in the Copyright Act, but they are focused primarily on the rights associated with personal property.

My colleague Jeremy deBeer conducted a detailed analysis of this issue in his article, Constitutional Jurisdiction over Paracopyright Laws.  Many of his arguments were echoed in a 2009 article published in the Journal of Information Law and Technology by Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn, both from the University of Windsor, which concluded that the anti-circumvention provisions found in Bill C-61 were unconstitutional.  The authors argue that the DRM provisions were "a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations. Future iterations of Bill C-61 that do not take the fair dealing provisions of the Copyright Act (and the overall scheme of the Act) into account would also likely to fail constitutional scrutiny."

Is it true that C-32 requires teachers and students to destroy some digital lessons 30 days after the course concludes?

Yes.  Bill C-32 requires teachers that utilize a new educational exemption to destroy the lessons that they have created for their courses with one month of the conclusion of the course.  Teachers must recreate the lessons each year, which obviously establishes a strong incentive to run as far away as possible from these new "rights." 

Is it true that C-32 requires librarians to ensure that inter-library digital loans self-destruct within five days of first use?

Yes.  While moving toward digital interlibrary loans has obvious advantages (speed and cost being at the top of the list), Bill C-32 forces libraries to implement DRM-based solutions.  The requirements for legal digital interlibrary loans include limits on further copying and distribution that go far beyond what is necessary (they are presumably a response to the unlikely scenario that only a single Canadian library will purchase the copy of a work and use digital distribution to cover the rest of the country).  Even worse is the requirement to destroy the digital copy within five days of first use.  There are no similar requirements for paper-based copies of works and it makes no sense to force libraries to install DRM protections on digital copies to create time-limited uses.

The U.S. has a regular review of new exceptions every three years.  Does Canada plan the same?

No.  The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences.  No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation.  The U.S. DMCA addresses this by establishing a flawed tri-annual review process.  The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.

As bad as the U.S. system is, the proposed Canadian system under Bill C-32 is worse since there is no mandated review of the exceptions at all.  Instead, Canada gets a flexible process that will allow the government to consider new exceptions if and when it sees fit.  In other words, the same government that brought you the Canadian DMCA will decide if there is a need to add any exceptions. If Canada establishes anti-circumvention legislation, it should also establish an impartial process that will enable concerned parties to raise potential new circumvention rights without excessive delay.  The process must be fast, cheap, and easily accessible to all Canadians.  Bill C-32 establishes the criteria for the introduction of new circumvention rights but fails to implement an administrative structure to conduct the reviews.
The digital lock provisions have quickly emerged as the most contentious part of Bill C-32, the new copyright bill.  This comes as little surprise, given the decision to bring back the digital lock approach from C-61 virtually unchanged. The mounting public concern with the digital lock provisions (many supporters of the bill have expressed serious misgivings about the digital lock component) has led to many questions as well as attempts to characterize public concerns as myths.  In effort to set the record straight, I have compiled 32 questions and answers about the digital lock provisions found in C-32.  The result is quite lengthy, so I will divide the issues into five separate posts over the next five days: (1) general questions about the C-32 approach; (2) the exceptions in C-32; (3) the missing exceptions; (4) the consumer provisions; and (5) the business provisions.  For those that want it all in a single package, I've posted the full series as PDF download.

Before getting into the 32 questions, it is worth answering the most basic question - what are anti-circumvention or digital lock provisions?  The short answer is that they are provisions that grant legal protection to technological protection measures (TPMs).  In plainer English, traditional copyright law grants creators a basket of exclusive rights in their work.  TPMs or digital locks (such as copy-controls on CDs, DVDs, or e-books) effectively provide a second layer of protection by making it difficult for most people to copy or sometimes access works in digital format.  Anti-circumvention legislation creates a third layer of protection by making it an infringement to simply pick or break the digital lock (in fact, it even goes further by making it an infringement to make available tools or devices that can be used to pick the digital lock).  Under the Bill C-32, it would be an infringement to circumvent a TPM even if the intended use of the underlying work would not constitute traditional copyright infringement.

The C-32 Approach

This section features answers to the following questions:
  • Isn't the C-32 digital lock approach simply the required implementation to comply with the WIPO Internet treaties?
  • Penalties are reduced for individuals who circumvent for personal purposes.  Doesn't this solve the problem?
  • The digital lock provisions in C-32 appear to distinguish between copy controls and access controls.  Isn't that enough to address concerns about the bill's impact on fair dealing?
  • Are the digital lock provisions in C-32 constitutional?
  • Is it true that C-32 requires teachers and students to destroy some digital lessons 30 days after the course concludes?
  • Is it true that C-32 requires librarians to ensure that inter-library digital loans self-destruct within five days of first use?
  • The U.S. has a regular review of new exceptions every three years.  Does Canada plan the same?
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Clement's Tweeting on C-32: A New Kind of Public Engagement

Submitted by mgeist on June 3, 2010 - 9:27am

While there are critics of C-32, everyone should be willing to give props to Industry Minister Tony Clement for his tweeting on the bill.  Soon after the usual press conference, Clement began responding directly to public tweets asking questions about the bill.  He thanked the public for positive and negative feedback and answered questions on unlocking cellphones, format shifti

Wednesday June 2, 2010
"We Don't Care What You Do, As Long as the U.S. Is Satisfied"
David Akin has pointed to a new paper from Blayne Haggart, a doctoral student at Carleton who is focusing on copyright policy in Canada, the U.S., and Mexico.  The paper, being presented this week in Montreal, includes some interesting analysis of digital copyright reforms in each country.  Given today's introduction of the copyright reform bill, of particular significance are comments Haggart obtained from Michele Austin, who served as Maxime Bernier's chief of staff when he was Industry Minister.  According to Austin, the decision to introduce U.S.-style DMCA rules in Canada in 2007 was strictly a political decision, the result of pressure from the Prime Minister's Office desire to meet U.S. demands.  She states "the Prime Minister's Office's position was, move quickly, satisfy the United States." When Bernier and then-Canadian Heritage Minister Bev Oda protested, the PMO replied "we don't care what you do, as long as the U.S. is satisfied."
This mandate will not come as a huge surprise to anyone who has followed the issue, but it still shocks to see it presented in such stark terms.  Given the strong public opposition to the anti-circumvention provisions in C-61, the thousands of Canadians who spoke out against the U.S. approach during the copyright consultation, and even Industry Minister Tony Clement's reported support for a more flexible approach, it would appear that the PMO's decision to side with Canadian Heritage Minister James Moore in requiring strict anti-circumvention rules reflects a long-term decision to prioritize U.S. interests on copyright ahead of the national interest.  The decision is particularly discouraging since it is unnecessary - a compromise could be struck that provides legal protection for digital locks, is WIPO compliant, and preserves the copyright balance.
David Akin has pointed to a new paper from Blayne Haggart, a doctoral student at Carleton who is focusing on copyright policy in Canada, the U.S., and Mexico.  The paper, being presented this week in Montreal, includes some interesting analysis of digital copyright reforms in each country.  Given today's introduction of the copyright reform bill, of particular significance are comments Haggart obtained from Michele Austin, who served as Maxime Bernier's chief of staff when he was Industry Minister. 

According to Austin, the decision to introduce U.S.-style DMCA rules in Canada in 2007 was strictly a political decision, the result of pressure from the Prime Minister's Office desire to meet U.S. demands.  She states "the Prime Minister's Office's position was, move quickly, satisfy the United States." When Bernier and then-Canadian Heritage Minister Bev Oda protested, the PMO replied "we don't care what you do, as long as the U.S. is satisfied."

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Wednesday June 2, 2010
An Unofficial User Guide to This Afternoon's Copyright Bill
With the copyright bill - Bill C-32 - being introduced this afternoon, it is worth noting that my technology law column last week (Toronto Star version, homepage version) focused on some of the key issues likely to find their way into the bill.  The column noted the internal dynamics that led to the bill are by now fairly well known.  Industry Minister Tony Clement, emboldened by last summer’s copyright consultation that generated unprecedented public participation, argued for a forward-looking, technology neutral bill with flexibility as a core principle.  Canadian Heritage Minister James Moore advocated for a U.S.-style protectionist approach, with priority given to digital locks that can be used to limit copying, access, and marketplace competition. With the active support of Prime Minister Stephen Harper, Moore won the fight over digital locks and the new bill will feature provisions certain to please the U.S. government and lobby groups.  Yet the bill will include far more than just tough legal protection for a digital locks.   This brief unofficial user's guide to the new legislation that focuses on three key issues - fair dealing, Internet provider liability, and digital locks (Internet downloading is unlikely to figure prominently in the bill).
First, the bill is certain to include a handful of changes to the current fair dealing provision. The Supreme Court of Canada has ruled that Canada's fair dealing provision - which is similar though not identical to fair use in the U.S. - must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting, and review) that renders many everyday activities illegal.  

During the copyright consultation, many Canadians called for the introduction of a flexible fair dealing provision that would legalize many common activities.  This is an issue that touches everyone.  Creators would benefit from a parody and satire exception. Consumers would benefit from exceptions for recording television shows or changing the format of content they have purchased. Educators would benefit from exceptions to cover teaching activities and distance education.

Sources say the government has rejected the flexible fair dealing approach, but that new exceptions will make their way into the bill.  The scope of the exceptions - the last bill contained 12 conditions in order to legally record a television show - will go a long way to determining whether the bill tries to strike a balance between competing copyright interests.

Second, the bill will address the responsibility of Internet intermediaries such as Internet providers and search engines for the activities of their users and subscribers.  The past two copyright bills both struck a reasonable compromise by adopting an approach that gave copyright holders the ability to warn users about alleged infringements, but protected the privacy and free speech rights of the public.  The bill will likely adopt the same system once again, which should garner support from across the spectrum.

Third, the bill will include digital lock provisions, known as anti-circumvention rules.  These rules, which will allow Canada to implement international copyright treaties it signed over ten years ago, was the most-discussed issue during the consultation.  Thousands of Canadians argued that Canada should adopt a flexible implementation that renders it illegal to “pick a digital lock” for the purposes of copyright infringement, but preserves the right to do so for legal purposes.

Sources say the government has rejected the flexible approach in favour of the U.S.-style ban on circumvention (subject to a handful of limited exceptions).  If true, the problem with the approach is that it undermines both the new and existing exceptions.  For millions of Canadians, that means that their user rights will be lost whenever a digital lock is present including for CDs, DVDs, electronic books, and many other devices.  In the process, the balance will tilt strongly away from consumers and their property rights over their own purchases.
With the copyright bill - Bill C-32 - being introduced this afternoon, it is worth noting that my technology law column last week (Toronto Star version, homepage version) focused on some of the key issues likely to find their way into the bill.  The column noted the internal dynamics that led to the bill are by now fairly well known.  Industry Minister Tony Clement, emboldened by last summer’s copyright consultation that generated unprecedented public participation, argued for a forward-looking, technology neutral bill with flexibility as a core principle.  Canadian Heritage Minister James Moore advocated for a U.S.-style protectionist approach, with priority given to digital locks that can be used to limit copying, access, and marketplace competition.

With the active support of Prime Minister Stephen Harper, Moore won the fight over digital locks and the new bill will feature provisions certain to please the U.S. government and lobby groups.  Yet the bill will include far more than just tough legal protection for a digital locks.  

This brief unofficial user's guide to the new legislation that focuses on three key issues - fair dealing, Internet provider liability, and digital locks (Internet downloading is unlikely to figure prominently in the bill).

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Tuesday June 1, 2010
Copyright Bill on Notice Paper as Ministers Emphasize Balance, Modernization
The government has placed the forthcoming copyright bill on the Notice Paper, which means that the bill could be introduced as soon as tomorrow.  The campaign to support the bill has also begun, with an op-ed in today's National Post jointly authored by Industry Minister Tony Clement and Canadian Heritage Minister James Moore.  The op-ed throws out lots of statistics about the digital and cultural economies and tries to make the case that it has been years since the last update (it references how the current bill is more than 80 years old, but then states that at the last update Canadians used CD players, pagers, and Sega Genesis - not exactly an eternity given that many still use CD players and pagers). A word cloud of the op-ed would focus primarily on two words - balance and modernization.  Both words appear repeatedly in the piece, with the Ministers emphasizing that the bill will be balanced and that modernizing the law is long overdue.  This suggests that the C-61 communication line of a "made in Canada" has been dropped, which makes sense given the digital lock provisions will reflect a made-in-the-USA approach.
The government has placed the forthcoming copyright bill on the Notice Paper, which means that the bill could be introduced as soon as tomorrow.  The campaign to support the bill has also begun, with an op-ed in today's National Post jointly authored by Industry Minister Tony Clement and Canadian Heritage Minister James Moore.  The op-ed throws out lots of statistics about the digital and cultural economies and tries to make the case that it has been years since the last update (it references how the current bill is more than 80 years old, but then states that at the last update Canadians used CD players, pagers, and Sega Genesis - not exactly an eternity given that many still use CD players and pagers).

A word cloud of the op-ed would focus primarily on two words - balance and modernization.  Both words appear repeatedly in the piece, with the Ministers emphasizing that the bill will be balanced and that modernizing the law is long overdue.  This suggests that the C-61 communication line of a "made in Canada" has been dropped, which makes sense given the digital lock provisions will reflect a made-in-the-USA approach.
The government has placed the forthcoming copyright bill on the Notice Paper, which means that the bill could be introduced as soon as tomorrow.  The campaign to support the bill has also begun, with an op-ed in today's National Post jointly authored by Industry Minister Tony Clement and Canadian Heritage Minister James Moore.  The op-ed throws out lots of statistics about the digital and cultural economies and tries to make the case that it has been years since the last update (it references how the current bill is more than 80 years old, but then states that at the last update Canadians used CD players, pagers, and Sega Genesis - not exactly an eternity given that many still use CD players and pagers).

A word cloud of the op-ed would focus primarily on two words - balance and modernization.  Both words appear repeatedly in the piece, with the Ministers emphasizing that the bill will be balanced and that modernizing the law is long overdue.  This suggests that the C-61 communication line of a "made in Canada" has been dropped, which makes sense given the digital lock provisions will reflect a made-in-the-USA approach.
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Monday May 31, 2010
Copyright Week in Canada: Bill Coming Thursday as Conservatives Indicate Openness to Amendments
This is copyright week in Canada as multiple reports indicate that the long-awaited copyright bill will be tabled on Thursday.  The recent round of reports are noteworthy for several reasons.  First, they confirm earlier reports that the government plans to introduce DMCA-style anti-circumvention legislation.  This suggests that the digital lock provisions that were the source of enormous public outrage (and the dominant issue during last summer's copyright consultation) will remain largely unchanged from Bill C-61 and will unquestionably be the most hotly debated aspect of the bill. Second, the reports also drop hints of other aspects of the bill.  While I previously reported there will be no flexible fair dealing provision, the reports indicate that there will some changes to fair dealing.  This comes as little surprise, given that C-61 included provisions on time shifting and format shifting. Third, the government is increasingly turning its attention to what comes after the bill is introduced.  The Canadian Press reports that the government is planning to pressure the opposition parties to hold summer hearings in an effort to fast-track the bill through the House of Commons.   While this raises concern for many groups who may face challenges participating in summer hearings (and the hearings themselves risk becoming abbreviated as MPs cut the process short to get back to their constituencies), Industry Minister Tony Clement has also indicated that the government is open to compromise:
“I’m not coming down from the mountain with this chiselled in stone. This bill may have elements in it where we could seek some consensus and there could be some positive amendments to this bill. That’s certainly in the realm of possibility too, and let the process begin."

These comments make it absolutely crucial for Canadians to take stock of the bill once introduced and to ensure that their voices are heard.  As I argued in my recent Hill Times piece, there is room for compromise on anti-circumvention legislation in the form of a provision confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes.  This would be consistent with the WIPO Internet treaties and a previous Canadian bill (Bill C-60).
This is copyright week in Canada as multiple reports indicate that the long-awaited copyright bill will be tabled on Thursday.  The recent round of reports are noteworthy for several reasons.  First, they confirm earlier reports that the government plans to introduce DMCA-style anti-circumvention legislation.  This suggests that the digital lock provisions that were the source of enormous public outrage (and the dominant issue during last summer's copyright consultation) will remain largely unchanged from Bill C-61 and will unquestionably be the most hotly debated aspect of the bill.

Second, the reports also drop hints of other aspects of the bill.  While I previously reported there will be no flexible fair dealing provision, the reports indicate that there will some changes to fair dealing.  This comes as little surprise, given that C-61 included provisions on time shifting and format shifting.

Third, the government is increasingly turning its attention to what comes after the bill is introduced.  The Canadian Press reports that the government is planning to pressure the opposition parties to hold summer hearings in an effort to fast-track the bill through the House of Commons.   While this raises concern for many groups who may face challenges participating in summer hearings (and the hearings themselves risk becoming abbreviated as MPs cut the process short to get back to their constituencies), Industry Minister Tony Clement has also indicated that the government is open to compromise:
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Tuesday November 17, 2009
Copyright Consultation Provides Blueprint for Reform
Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) I wrote for the Hill Times on the lessons that can be drawn from this summer's copyright consultation. The piece appears as part of a special section on copyright that included an interview with Industry Minister Tony Clement, Charlie Angus, Howard Knopf, Pina D'Agostino, and Simon Doyle (amont others). I note the government is still in the midst of posting all the submissions, but with thousands now online, it is not too early to begin drawing some lessons.  What does the consultation teach us?  There are at least eight conclusions of note:
1.    Copyright policy has gone mainstream.  A Canadian government last consulted the public on copyright in 2001. That consultation generated approximately 700 responses, which at the time was regarded as a significant participation rate.  The 2009 consultation - with over 8,000 submissions, two packed townhalls, nearly a dozen roundtables, thousands of comments in an online discussion forum, and hundreds of news articles, blog postings, and tweets - demonstrated that Canadians care deeply about copyright and are determined to have their views reflected in government policy.  When a copyright bill is unveiled, Canadians will be paying close attention.

2.    There is support for implementing the World Intellectual Property Organization's Internet Treaties, but on Canadian terms.  Canada signed the WIPO treaties over a decade ago and many Canadians believe that we should implement them.  However, a consistent theme throughout the consultation was the need for Canada to take full advantage of the flexibility within the treaties by granting new protections to the copyright industries while also preserving consumer rights.  This was most commonly articulated with the recommendation that new legal protections for digital locks be linked to cases of actual infringement.

3.    Groups from across the spectrum support fair dealing reform.  Fair dealing emerged as one of the most discussed issues with near universal agreement that it is in need of reform.  The divide is really over which approach to take.  Many groups called for a flexible approach that builds on current Canadian law by opening door to additional categories of fair dealing (the "such as" approach).  Other recommended adopting narrow, specific reforms including new exceptions for parody and satire.

4.    Canadians want to modernize copyright law to reflect common consumer uses.  Thousands of Canadians agreed with the notion of updating copyright law by ensuring that the law legalizes common activities such as recording television shows, format shifting content between devices, interacting with electronic books, or engaging in remixing of content.  Canadians are comfortable with technology and expect that the law should keep pace with reasonable uses.  Indeed, even the Canadian Radio-television and Telecommunications Commission posted a submission calling for the formal legalization of some of these activities.

5.    Ensuring creators get paid is essential.  The most consistent theme from Canadian creator groups was also the simplest - creators want to be paid for their work.  That led to the articulation of two visions.  One possibility is the expansion of collective licencing, such as broadening the private copying levy to more devices and content.  Alternatively, some creators focused on market-based solutions with new business models that offer potentially lucrative opportunities.

6.    Government should lead by example.  Clement and Moore both seemed surprised by the frequent requests for the abolition of crown copyright, which grants the government exclusive rights over its own publications.  Librarians, archivists, and citizens groups all noted the importance of unfettered access to public documents, criticizing outdated notions of requiring permission to copy laws, court decisions, or other government documents.  

7.    Copyright reform is directly linked to broader digital policy issues.  Many Canadians pointed to the need for a holistic, forward-looking approach to copyright reform that acknowledges the links between copyright policy and Canada's broader digital policy.  Hundreds invoked the need for net neutrality and appropriate conduct by Internet providers.  Moreover, submissions frequently cited the need to establish appropriate intermediary liability and Internet provider safe harbour rules that provide effective, proportional remedies and recognize the critical importance of Internet access for all.

8.    Preserve Canadian choices by pursuing a Made-in-Canada solution.  Canadians are acutely aware of the copyright reform experiences in other countries and regularly pointed to other countries as examples both for what to do and what to avoid.  Further, many expressed concern that the current negotiations on an Anti-Counterfeiting Trade Agreement could undermine the government's ability to craft a much-desired Canadian-specific solution.
Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) I wrote for the Hill Times on the lessons that can be drawn from this summer's copyright consultation. The piece appears as part of a special section on copyright that included an interview with Industry Minister Tony Clement, Charlie Angus, Howard Knopf, Pina D'Agostino, and Simon Doyle (amont others). I note the government is still in the midst of posting all the submissions, but with thousands now online, it is not too early to begin drawing some lessons. 

What does the consultation teach us?  There are at least eight conclusions of note:

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Clement Confirms Timeline for Copyright Bill May Be Spring 2010

Submitted by mgeist on September 10, 2009 - 1:16pm

Industry Minister Tony Clement has re-affirmed earlier comments that the introduction of a new copyright bill may take until the Spring 2010.  In a Toronto Star interview, Clement emphasizes the need to establish a bill that withstands the test of time and that he'd like a bill this fall but is content to put it off until February or March if needed.

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