“You can’t overlook digital locks,” said University of Ottawa law professor Michael Geist. “There’s no way to sugarcoat the fact that I think it represents both bad policy and it runs counter to what the government heard from tens of thousands of Canadians, and from the majority of the witnesses and was easily fixable, so it’s a huge disappointment that it wasn’t. That said, there is also I think a lot of good in this legislation. Those that would simply tar the bill as being awful, I think aren’t giving it a full fair read.”
The Senate passed Bill C-11, the Copyright Modernization Act, last Friday. It was the government’s third bill since coming to power in 2006. The previous minority Liberal government also introduced a copyright bill.
The last time the Copyright Act underwent significant amendments was in 1997.
It will make a number of significant changes to bring it in line with international treaties. Among the changes, photographers and painters would gain first rights to their work commissioned by others; fair dealing—limiting exclusive rights to copyright holders—would be extended to education, parody and satire use; “time shifting” broadcast media would explicitly be allowed provided the show or performance was obtained legally; reproduction of copyrighted work for educational purposes will be technology neutral; internet service providers will be required to notify users that they may be infringing copyright if copyright holders alert the ISPs to it; and consequences for infringing copyright will be more severe—individuals will be liable for damage ranging from $500 to $20,000 for commercial use and non-commercial use damages range from $100 to $5,000.
One of the major changes to Canada’s copyright regime under this bill will be in the form of the introduction of “technological protection measures,” or, digital locks. In order for Canada to meet its World Intellectual Property Organization obligations, the Copyright Act must address the rights of creators to put locks on their work to prevent it from being copied without authorization.
Under the bill, individuals would be explicitly prevented from breaking these digital locks, even if the work or product was acquired legally. For example, if someone buys a CD and wants to break a lock on it to transfer the music to a digital player such as an iPod, they would now be breaking the law. Creating and distributing software or devices to circumvent digital locks will also be illegal. Breaking digital locks would still be exempted for law enforcement and national security activities as well as for unlocking cellphones.
Under the bill, Parliament will have to do a review of the legislation every five years.
On digital locks, Prof. Geist said the government did not tone down its digital lock provisions because there was pressure from the United States to keep them as they are.
“This was by far the U.S.’s biggest issue,” he said, noting that U.S. Ambassador to Canada David Jacobson described recently that when the House of Commons passed the bill, it was one of the biggest weeks for Canada-U.S. relations. “I mean, it’s shocking frankly, to see a U.S. ambassador talking about a piece of domestic Canadian legislation in that way. But there’s no doubt there was great pressure. I think that almost on everything else there was room and scope for the government to move and in fact on many of those issues, I think it actually did a pretty good job of striking a balance and hearing the concerns of Canadians but on digital locks it feels as if it was almost immovable once the U.S. made it clear that they didn’t want to see it changed.”
By not having its own policy on digital locks, Prof. Geist said that it shows the Canadian government will continue to “cave” on other trade issues. “The message that it sends to governments like the United States is there is a willingness to cave under pressure and in a sense invites more,” he said.
Nova Scotia Conservative Senator Stephen Greene, who sits on the Senate Banking, Trade and Commerce Committee which studied the bill, said that while he personally does not like digital locks, they are necessary.
“Quite frankly, I know of no consumer, including myself, who is actually in favour of digital locks. Why? They limit my behaviour and, in an ideal world, how can one be in favour of that? However, we have locks on our house, our car, our office, our briefcase, our luggage—in fact, on all of the possessions we care about or that have value,” he said. “Ultimately, digital locks for copyright purposes also protect us because, without them, we would not have the range of new educational and entertainment products year after year after year that we enjoy. Thus, since creators benefit from digital locks, so do consumers.”
Sen. Greene also said that it’s important to note that the bill does not require digital locks on copyrighted works, and therefore owners “can choose whether or not it makes sense for them to make use of such technology. At the same time, consumers can choose whether or not to purchase content that has a digital lock. That is how any marketplace should work.”
Prof. Geist disagreed, however, saying that it could potentially have a negative impact on the market.
“The two things I do think will happen is I think you will find many Canadians who will simply go ahead and circumvent anyway. That’s the experience in the United States where these laws have been around for sometime and so many Canadians will simply ignore these provisions and to me that’s unfortunate because a bill that was in part designed to update and foster new respect for copyright, that opportunity will have been lost because many will take a look at this and say they think it’s unfair and they won’t abide by it,” he said. “The other thing that I think is possible is we could see a constitutional challenge against the digital lock provisions.”
Nova Scotia Liberal Senator Wilfred Moore, who also sits on the Senate Banking Committee, agreed that the Conservatives “caved” to U.S. pressure on the digital locks, noting that according to WikiLeaks the government offered to share the bill’s amendments with American legislators before introducing the bill in Parliament.
“As it turns out, the Americans have actually loosened their proposed policies on digital locks,” Sen. Moore said. “The government’s digital lock policy reminds me of the Conservative Party struggle against the long-gun registry. For many years the refrain was that the gun registry put innocent gun owners in prison. Well, what is the effect of the Conservative Party’s digital lock policy? It will fine innocent people for backing up CDs or DVDs that they have purchased legally. It will fine the mother who transfers a movie from a DVD to an iPad for use by her children.”
Sen. Moore noted that there should have been common sense when dealing with digital locks.
“The government must realize that the real argument to be made here is under fair dealing. The key issue is this: What is the purpose of copying? Is the mother of three making one copy to show to her children on a long trip in the family van, or is she making 3,000 to sell to the public? There is room for common sense here,” he said.
Meanwhile, Prof. Geist said now that the bill is passed, how it will affect consumers and businesses will vary.
For the most part, he said, there are provisions that reflect current consumer practices which will continue.
For example, he said he can’t imagine there are a significant number of Canadians who have not been recording television shows for fear of copyright breaches, and so that will continue now that it’s explicitly legal to do so. “At a certain level, I think there’s quite a lot that doesn’t actually change at all,” he said.
Where it will have an effect, Prof. Geist said, is through the education provisions.
“Some of the education provisions in there I think should have some market place impact. The user generated content provisions for users, that is a space where we’ve seen take downs and things like that, and this should remove some of that uncertainty. It certainly takes the prospect of file-sharing lawsuits I think largely off the board in Canada, given the cap on non-commercial statutory damages,” he said. “So there are some places where there will be an impact.”
Meanwhile, Liberal Senate Leader James Cowan (Nova Scotia) criticized the government for rushing the bill through in the Senate with time allocation. There were only two speeches on it at second reading and the Senate Banking Committee studied it for three days before reporting it back to the Senate. The government rushed through bills C-38, the Budget Implementation Bill, and C-31, the Immigration and Refugee Reform Bill, as well.
“I think it’s unfortunate that we’ve finished by rushing through important legislation that should’ve received better study,” Sen. Cowan said. “I’m not saying it was necessary to stay into July, but it would’ve nice to have gotten those bills earlier on so that we could’ve done the study that we should’ve done on those bills but I guess that’s how the government is managing its legislative agenda. They didn’t get them here quickly enough so the government is ramming them through the Senate and I think that’s wrong.”
He said there was nothing “time sensitive” in any of those bills that would warrant limited study.
“There were lots of people who needed to be heard, and there was just no opportunity to be heard,” he said.
Despite that, however, Sen. Cowan said Senators on both sides of the Chamber worked hard in committees during the spring sitting, and got a lot done before heading off for the summer recess.
“Our committees did good work in many fields, and I think they worked hard, Senators on both sides. From that point of view it was good. I think the use of closure repeatedly by the government is a bad precedent,” he said. “I think people are increasingly concerned about this abuse of the democratic process by the Harper government, not only in the Senate, but in the House of Commons where increasingly committees aren’t allowed to meet in public or committee meetings are shut down. We haven’t had that in the Senate. I hope it doesn’t come here.”
Original Article
Source: hill times
Author: Bea Vongdouangchanh
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