Canadian Coalition for Electronic Rights
 

Earlier this week the 2nd Reading debate on Bill C-32 opened in the House of Commons. This provided the first tangible opportunity for Canadians to hear from each party concerning their views on the proposed legislation. Similar to the Canadian Coalition for Electronic Rights, the Liberals, NDP and Bloc seem to agree with the Bill in principle, meaning they agree Canada’s copyright regime needs to be updated and that Bill C-32 is a plausible starting point. That being said, there quickly emerged a general consensus amongst ALL opposition parties that Bill C-32 is flawed at its very core by how it implements protection for digital locks. A flaw that each party insisted be fixed at the committee stage to ensure a balance between publishers, distributors and creators / consumers.

The following is each party’s stance on Bill C-32 and its flawed approach to digital locks:

LIBERALS (MARC GARNEAU)

The Liberal Party has problems with digital locks and technological protection measures, or TPMs. The Liberal Party has concerns with the application of new TPM circumvention amendments in Bill C-32. Specifically as it applies to music, video and other digital media, the Liberal Party believes the Copyright Act must allow Canadians who have legitimately purchased a CD, DVD or other product the ability to transfer their purchase onto other personal devices, such as an iPod, or make a personal backup copy on their computers so long as they are not doing so for the purposes of sale or transfer to others. We do not believe that Bill C-32 achieves that principle at this time. There are various ways in which a solution could be found and we look forward to examining the different options in committee.

NDP (CHARLIE ANGUS)

The digital locks make a mockery of any claim of giving fair rights. The government says that we will get fair dealing rights for education and for reproduction for private purposes. People can make back-up copies; there will be copying rights for the print disabled; there is the so-called YouTube mash-up provision. But if there is a digital lock in place, all those rights are erased. Clause 41.1 lays out very clear technological protection measures, which supersede the rights that citizens would otherwise enjoy. Thus Bill C-32 offers citizens’ rights that they will not actually be able to access. What the government is doing is creating a two-tiered set of rights between digital and non-digital products. Instead of legal certainty, Canadian citizens will face arbitrary limitations on what should be their legal right of access.

BLOC (CAROLE LAVALLEE)

This bill is totally unbalanced because it benefits major U.S. companies and major computer gaming software companies to the detriment of artists. There are two totally disheartening approaches in this bill and seven deadly sins, if I can put it that way. The first approach is one using digital locks. Sure, we can say that digital locks are necessary, and that they must be respected, but to base an entire bill on them is a bit much. With this bill, the government is telling artists that if they want to make money, all they have to do is put digital locks on their musical works to prevent anyone from copying them. If people want to make a copy for themselves, or to transfer the music to another format, it would be absurd to make them buy the original work again. That makes no sense, and it will not work. We are talking about the survival of artists and their art here, and this is important for many reasons. An approach based on digital locks is completely ludicrous.

With the 3rd session of the 40th Parliament now in session there is little doubt that copyright will be at the forefront of the conservative agenda between now and Dec 17. And when talking copyright in Canada, we are of course referring to Bill C-32. Prior to the summer adjournment of The House and MP’s exodus to their cottages and the barbecue circuit, battle lines were clearly drawn in the great copyright debate.

On one side were lobbyists music industry types, trade groups and MP James Moore pitted against educators, a coalition of big tech companies, retail representatives and Canadian consumers. Bill C-32 polarized the Canadian copyright reform debate almost immediately which comes as little surprise, however, what has since transpired in the waning dog days of summer is indeed eye opening.

Call it sober second thought or some iteration of buyer’s remorse, but it is now apparent that the honeymoon effect between lobbyists, trade groups and industry types has run its course. Witness the following:

To summarize, we now have lobby groups doing a 180 and insinuating that Bill C-32 is a perfect fit “for people who want to steal stuff”. Coalitions of content creators, artists and rights holders, and people who work in music, movies, games, books, and software industries flip-flopping and claiming that under Bill C-32 “the situation for creators will grow worse”. And finally Canadian artists breaking ranks to allude that Bill C-32 “pit[s] musicians against fans in order to score political points.

Now that Canadians have had the summer to digest this bill and hopefully sift through the rhetoric, only one nagging question remains – just who likes this purposed copyright reform legislation anymore? Because it is certainly not consumers, educators, retailers, artists, creators, lobbyists, trade groups, industry groups, opposition MP’s and most certainly not the CCER.

In the ominous course of exactly one year to the date, what may have once been regarded as the best of times (June 22, 2009) has morphed into what can be classified as the worst of times (June 22, 2010). What was once the age of wisdom, is now the age of foolishness. Witness what has become of MP James Moore and his copyright reform ideals as evidenced in this video. It was one year ago at Canada’s Digital Economy: Moving Forward conference hosted by Industry Canada in Ottawa that Minister Moore reached out and appealed to a broad cross section of attendess for their input and ideas for copyright reform. As Moore so eloquently stated:

The future is now, it is coming and it is remarkable…never has their been a better time to be alive than right now…it’s not only Michael Geist twittering in real-time to his universe of people who care about copyright…the opportunities in front of us are remarkable…the average age of a Member of Parliament is 55, but those under the age of 25 are consuming more media than ever before, you’d be surprised the number of MP’s who’ve never held an iPhone…the old way of doing things is over and it’s great and it’s never been better and we need to be enthusiastic and embrace these things. Don’t assume that those that are making the decisions and driving this debate understand all the dynamics that are at play here and how great this can be for Canada…the opportunities are unbelieveable and are unparalleled in human history

Very heartening and encouraging words from Moore a year ago. Moore stresses that MP’s, those making the decisions and reforming copyright law do not fully understand the technology and the influence it has on every facet of Canadian lives. As Moore indicates, the old way of doing things is over and it’s great and we need to be enthusiastic and embrace these things. What a difference a year makes, witness Minister Moore a year to the date:

Those absolutists out there, who are babyish in their approach to copyright legislation who think that any idea that copyright reform would be an attack on individual citizens are people who frankly don’t get…Don’t fool yourself. These voices that are out there, these people that are out there who pretend to be experts that the media cite all the time. They don’t believe in any copyright reform whatsoever. They will find any excuse to oppose this bill, to drum up fear, to mislead, to misdirect, and to push people in the wrong direction and to undermine what has been a meaningful comprehensive year-long effort to get something right…Those people out there who try to pretend that they are copyright experts and they want to amend copyright in a meaningful way, don’t be fooled by some of these people. They don’t believe in any copyright. They don’t believe in individuals’ right to protect their own creations…Make sure that those voices who try to find technical, non-sensical, fear-mongering reasons to oppose copyright reform are confronted every step of the way and they are defeated.

Minister Moore has gone from encouraging broad participation and input regarding copyright reform to casting most critics of his brand of copyright reform as “radical extremists” As the omnipresent Michael Geist alludes, is Minister Moore referring to these groups which include MP’s, consumer groups, university teachers and students, library groups, business/trade groups and retail groups. So this begs the question Mr Moore: Why should Canadians now not speak out on copyright and rely only upon MP’s (who as you’ve alluded average in age over 55) to spoon feed consumers of technology (those under 25 consume the most technology) new laws that will dictate their everyday activities? Why must we ensure that those who “oppose copyright reform are confronted every step of the way and they are defeated?”

On June 2, 2010 the Government of Canada undertook an important step towards updating Canada’s copyright regime by introducing Bill C-32: the Copyright Modernization Act. Although Bill C-32 appears to be more flexible than the previous attempts at copyright reform, this bill is flawed to its core by the inclusion of strict, anti-circumvention provisions. Understandably Canadians are concerned at how easily their rights are trumped by the overriding protection for digital locks included in this legislation and it is to this effect that the CCER has updated its online letter writing tool.

It is essential that Canadians speak up about their concerns with Bill C-32 while it is still open to amendments. Even if you have spoken out before the Government needs to hear your concerns. Send your letter now and share this tool with your friends, family and co-workers. It is essential that we all speak up now while we have the opportunity.

The Canadian Coalition for Electronic Rights (CCER) is pleased to see that the Government of Canada has tabled its Copyright Modernization Act (PDF). However, the CCER is deeply concerned at how easily consumer rights can be voided by the anti-circumvention provisions included in this legislation.

Albeit slightly more flexible than the Conservatives’ previous attempt at reforming copyright, Bill C-32 is flawed at its core by the inclusion of strict, anti-circumvention provisions. These anti-circumvention provisions are modeled after those found in the oft-criticized US DMCA (Digital Millennium Copyright Act) and effectively extinguish consumer and creator rights by tipping the balance of copyright law in favour of distributors and antiquated business models.

Bill C-32 includes provisions to address consumer activities such as format and time shifting, however these are all subject to digital locks. For example, consumers would now be permitted expressly by law to rip tracks from a CD into an MP3 and then transfer it their iPod or to make a backup copy of digital content to protect against loss or damage. However, what about consumers who want to watch a new DVD they bought on their iPad? No chance, as all commercially available DVDs employ digital locks and breaking a digital lock is not permitted by C-32 in this instance. Now what if a consumer wants to make a backup copy of a video game to protect their investment from undue wear and tear? Pointless, seeing as a digital lock needs to be bypassed in order to make that personal backup copy playable. According to Bill C-32 both of these reasonable consumer acts would be illegal and subject to penalties of up to $5000.00. So in actuality, the only rights Canadian consumers will get under Bill C-32 are those that the music, movie and game distributors decide they get or what has been aptly referred to as “market forces” in recent discussions surrounding the bill.

A more effective approach to the anti-circumvention provisions that inevitably seem to criminalize consumer activities in Bill C-32, would have been to link the act of circumvention to infringement as the Liberals did in their attempt at copyright reform. This approach is not only WIPO compliant but it integrates a greater deal of flexibility into copyright law by not placing a blanket prohibition on circumvention services, tools and devices. This approach would likely provide the greatest level of balance to Canada’s copyright regime by providing consumers with tangible rights and options rather than provisions that giveth with one hand and taketh away with the other. Such an approach would also ensure that creators are fairly compensated for their work while at the same time provide incentives for future innovation. Unfortunately, ministers Moore and Clement are taking Canada in a different direction. A direction that may appease certain interests in the United States and European Union at the expense of Canadian consumer rights.

Another attention grabbing provision included in Bill C-32 is the legitimization of PVR devices and associated time and format shifting activities. Sounds great doesn’t it? You can now use that PVR you purchased to record your favourite TV shows for viewing at a later date and time without fear of being on the wrong side of the law…for now. This provision is also subject to digital locks (broadcast flags) that will inevitably be used in Canadian television broadcasts that will prevent a program from being recorded to your PVR or cause a recorded program to delete itself after a given period of time. Try to bypass these broadcast flags and you’ll find yourself on the wrong side of the law according to Bill C-32. Going from a consumer to a criminal just by engaging in a reasonable consumer activity will be the direct result of the anti-circumvention provisions in Bill C-32.

Bill C-32 provisions are not all as contentious as the anti-circumvention provisions are, in fact C-32 does take some positive steps forward in the areas of fair dealing, intermediary liability and educational exemptions. The Canadian Coalition for Electronic Rights fully supports Bill C-32’s inclusion of a “notice and notice” approach to internet service provider liability. Meaning that, after being contacted by a copyright holder about a potential infringement, an ISP will be required to notify the customer that he or she may be violating the law. The customer’s personal information could then be released to the copyright holder with a court order.

Bill C-32 is now set to make its way through the parliamentary process and be referred to a committee where it will be reviewed line by line and where hopefully the public can be heard from in a fair and representative way. Industry Minister Tony Clement has made statements in the media indicating there exists an openness to amending Bill C-32 in a way to ensure balance for all sides of the equation. Clement’s continued willingness to engage Canadian consumers in an open dialogue on the copyright issue is rare and presents a unique opportunity that must not be squandered. If Canadians remain silent there is a real possibility that Bill C-32 will become the law of the land in its current flawed form, undermining the reasonable rights of all Canadians with its draconian protection for digital locks. However, if Canadians take the time to engage themselves in this important issue and speak out, Bill C-32 can be fixed and a proper balance in Canada’s copyright regime established in a responsible and sovereign manner.

In the coming days the Canadian Coalition for Electronic Rights will be updating its online letter writing tool to reflect the introduction of Bill C-32 and its worrisome anti-circumvention provisions. Michael Geist has also relaunched Speak Out on Copyright to focus on this bill and encourages Canadians to join the Fair Copyright for Canada Facebook group (to get active) and the Fair Copyright for Canada Facebook Page (to stay updated).

All reports indicate that a Bill to amend the Copyright Act will be introduced in the House of Commons this week, Thursday June 3, 2010 to be specific. It is fully expected that the Bill will include strict anti-circumvention provisions that would criminalize bypassing digital locks to access content, shift format or otherwise preserve consumer rights.

Furthermore, the Canadian Press is reporting that the Government is seeking the support of opposition parties to hold summer hearings on the Bill. Summer hearings would potentially minimize the number of voices heard on this Bill and may be a means of expediting the passage of this Bill into law. Given the latest poll results, it is highly unlikely the Liberals will rock the boat if there’s any chance that this could be a component to triggering an election they so clearly want to avoid.

Remember to send a letter to your MP with this online tool urging them to ONLY support a fair copyright reform bill.

UPDATE: The Canadian Copyright bill has been placed on the Notice Paper which means it could be introduced in the house as early as Wednesday June 2, 2010.

In the summer of 2009 the Government of Canada held public consultations on copyright and Canadians engaged in these consultations at unprecedented levels demanding a balance between consumer rights and creator rights. According to Michael Geist, recent developments indicate that these extensive consultations were “little more than theatre”. A very disheartening development indeed.

Indications are that the PMO has had to step in and make a decision on the direction of copyright reform in Canada because the Minister of Canadian Heritage, James Moore and the Minister of Industry, Tony Clement could not come to a consensus. A consensus should have been an achievable outcome given the consultation results. It is further reported that the PMO has instead given the green light on moving forward with anti-consumer copyright legislation within the next 6 weeks. A Canadian DMCA would most likely appease the US Government as well as domestic and foreign corporate interest groups.

Information has also emerged over the span of the last month indicating that James Moore had reversed his balanced approach to copyright and begun arguing for a Canadian DMCA with strong protection for digital locks and a rejection of flexible fair dealing. Tony Clement on the other hand seems to have stayed the course by continuing to endorse a flexible approach to copyright reform that would withstand the tests of time and consider both consumer and creator interests.

The bill is not expected until June, but it will have dramatic repurcussions once introduced. First, the bill represents a stunning reversal from the government’s seeming shift away from C-61 and its commitment to a bill based on the national copyright consultation. Instead, the consultation appears to have been little more than theatre, with the PMO and Moore choosing to dismiss public opinion. Second, after adopting distinctly pro-consumer positions on other issues, Moore has abandoned that approach with support for what may become the most anti-consumer copyright bill in Canadian history. Third, the bill will immediately impact the Canadian position at the ACTA and CETA negotiations, where the bill’s provisions on anti-circumvention and ISP liability will effectively become the Canadian delegation position.

Indications are that this Bill will not be introduced until June but the time to act is now. The CCER has urged Canadians to speak out in the past only to have their voices ignored by the Government of Canada and for this we apologize. However, this is not the time to give up. If you have spoken out before then it is time to speak out again and again if necessary. There is clearly a range of opinions amongst MPs on copyright reform, some anti-consumer and some pro-consumer.

Your MP needs to know where you stand on the issue regardless of your views and even if you have already told them before. A physical letter or email message to your MP, the Prime Minister, James Moore, Tony Clement and Liberal leader Michael Ignatieff is what is needed right now. Also remember to join the Facebook group and the Facebook page and be sure to ask others do the same.

For those wondering what can be done, my only answer is to speak out now. Write a paper letter to your Member of Parliament and send copies to the Prime Minister, Moore, Clement and Liberal leader Michael Ignatieff. No stamp is required – be sure to include your home address and send it to the House of Commons, Ottawa, ON, K1A 0A6. Once that is done, join the Facebook group and the Facebook page and be sure to ask others do the same. You may spoken out before, but your voice is needed yet again.

Yesterday’s Throne Speech clearly indicated that the Government plans on “strengthening laws governing intellectual property and copyright“. When we see the words strengthen and copyright in the same sentence we automatically think of legislation that sacrifices the rights of consumers, creators and researchers in favour of specific technologies and business models. After all, Canadians are well within the realms of sanity to react so sceptically given previous attempts at copyright reform, specifically Bill C-61 (The Canadian DMCA).

However, along comes the Minister of Industry himself indicating our dire assumptions may be presumptuous. Following the Throne Speech, Tony Clement appeared on CTV’s Powerplay and offered a glimmer of hope to balanced copyright reform sceptics. When asked if moving forward on copyright reform was a tradeoff for putting the “buy American” issue to bed Clement responded:

I’ve been pretty clear to the Americans and in my public statements that we are moving ahead with copyright reform. The key is, from the American perspective, they want us to be part of WIPO, which is an international treaty on protecting intellectual property. We don’t have a problem with that, but we’re going to do it in a made-in-Canada way. We’re not just going to take what the Americans are doing or what the Europeans are doing. We are going to fit it to the Canadian context and I think that is the right thing to do.

Given this refreshing dialogue, it appears that Tony Clement may actually fully understand the copyright file and the implications that modernizing the Copyright Act will have on Canadians. Hopefully Clement can parlé his encouraging views into legislation. It is going to be an uphill battle especially given the immense amount of lobbying that will be taking place in Ottawa over copyright. In fact it would appear that the industry lobbyists have already resorted to pulling out their big guns for this showdown:

Surprise memo of the month from my staff: “U2′s manager Paul McGuinness wrote you. Bono wants to talk to you about copyright”

A tweet from James Moore (the second half of the copyright reform file) this morning indicates that he received a request from U2′s manager to speak with Bono about copyright. Yes, the same Bono that wrote the infamous New York Times op-ed about saving the world by ratcheting up protection for intellectual property.

Unfortunately the search function on the official Government website for copyright reform has been broken since the day the site launched. The Canadian Coalition for Electronic Rights is proud to announce the launch of its own copyright consultation search tool aimed at filling this void.

Our copyright consultation search engine is currently limited to searching official submissions however we plan on adding the ability to search submissions and discussions independently as well as viewed cached pages of the Government website in the coming days.

As promised the Canadian Government has put into place some details for its nationwide consultation on copyright modernization. The official website has been launched, ironically running on open source software, reminding one of the old idiom, actions speak louder than words. Not the most pleasing website ever seen, nor the most technically advanced, lets hope what it lacks in usability is made up for in content and effectiveness.

The website proves to be a decent clearinghouse for its calendar of events, most notably the Round Tables and Town Halls. While criticism is emerging regarding the closed-door, invitation only Round Table sessions, one can only hope the audio and video from these sessions will be released in their entirety to make up for this lack of transparency. Regarding the Town Halls, while Clement had indicated that the consultations would be coming to ‘a pasture near you’ turns out that unless your pasture backs onto Toronto or Montreal, the Town Hall will not be so near you and your only option will be an email submission or webcast participation.

Although the Conservative Government is to be commended for seemingly making an effort to consult on copyright, a number of concerns remain. For instance reports that the government intends on fast-tracking this legislation is very worrisome. There is word that the Government is looking to get a copyright reform bill signed into law before Christmas. Seeing as parliament will not be sitting again until Sept. 14, 2009 this bill would need to successfully navigate multiple readings and committee hearings in both the house and senate prior to being given royal ascent all in less than 3 months, whereas most legislation takes an absolute minimum of 6-8 months.

So the time is nigh to mobilize the troops. Be sure to post your responses/comments to the topics, register for the Town Halls (Toronto, Montreal) either the webcast or actually attending and submit your formal submission here. Time will tell if Clement and Moore are truly committed to doing things differently, however, if we all speak out we cannot be ignored.