LibertyVoice

The National Post's Don Martin reports that the copyright bill could be introduced next week with confirmation of the broad outlines of the bill I reported on earlier this month.  Martin, who, describes the forthcoming bill as heavy-handed, reports:

All signals suggest Heritage Minister James Moore has triumphed over the objections of Industry Minister Tony Clement, setting up Canada to march in excessively protected lockstep with a United States that boasts the toughest laws against pirated music or movies on the planet.

It may well be a legal constraint that's impossible to enforce, but the rumble out of the PMO suggests the new law will ignore the extensive public consultations that advocated a go-easy take on copying of CDs and DVDs in favour of robust anti-consumer limits on transferring or sharing content. If this comes to pass, the federal government will be headed for a very bad week when the House of Commons reconvenes on Tuesday.

While that is not how I would describe the outcome of the consultation – fair copyright is not the same as "go-easy" – Martin's report is wholly consistent with my earlier reporting that the PMO has sided with the out-of-touch Moore, who has emerged as a staunch advocate for a Canadian DMCA.  While the bill will undoubtedly include some elements designed to garner support from consumer and education groups, the U.S.-style approach to digital locks will effectively undermine the current fair dealing provision and any additional user-oriented reforms that find their way into the bill.

Last week Industry Minister Tony Clement unveiled the government’s much-anticipated Digital Economy Strategy consultation.  My weekly technology law column (Toronto Star version, homepage version) notes the consultation is slated to run for two months and includes an online forum, face-to-face meetings, and a 40-page document that sets out key areas of concern. Five areas for discussion are identified: capacity to innovate, building a world-class digital infrastructure, growing the ICT industry, creating digital content, and building digital skills.

Skeptics will argue that the consultation is long overdue or perhaps even comes too late. Canada has inarguably lost considerable ground in comparison with many other countries around the world that were quicker to identify and implement digital strategies. While the delays have been marked by a gradual hollowing-out of the Canadian tech sector and sliding global rankings on network and wireless connectivity, Clement has firmly established himself as the most committed Industry Minister on digital issues since John Manley in the late 1990s.

Prioritizing digital issues is a first step toward remedying the situation, but a decade worth of policy neglect will not be solved overnight.  Despite lingering doubts about whether the government is listening – many Canadians fear that last summer’s copyright consultation may be largely ignored – those concerned with Canada’s digital future can ill-afford to stay silent on the sidelines. I hope to address some of the substantive questions raised by the consultation in a future column, but the more immediate concern are two unasked questions that cut across all issues – who will lead the strategy and how will the government pay for it.

Clement is the obvious point person for digital strategy leadership, yet the consultation document demonstrates that the issue is not so clear cut.  Canadian Heritage Minister James Moore and Minister of Human Resources and Skills Development Diane Finley both contributed to the document, leading to different points of emphasis among the chapters.  Moreover, many other ministers – including public safety, health, the environment, trade, and finance – could reasonably argue for a role in the process.

Given the broad scope of digital issues, Canada needs a single point of leadership with the ability to advance the strategy at the cabinet table and to cut across sectors. Many of our trading partners have created ministerial positions (or at least junior ministers) with responsibility for specific digital issues.  For example, Australia has both a Minister for Innovation, Industry, Science and Research and a Minister for Broadband, Communications and the Digital Economy.

If Clement is to lead, he needs clear responsibility and a mandate on the issue, not the prospect of cobbling together support from cabinet colleagues zealously guarding their turf after Canadians have spoken.

Even with leadership addressed, a successful national digital strategy requires funding.  The question of how the strategy will be paid for is omitted from the consultation but represents a basic pre-requisite.  While not all aspects of the strategy will require significant investments – many policy solutions involve minimal government expenditures – developing digital skills training programs, ensuring broadband access for all Canadian communities, and fostering the creation and promotion of Canadian new media are just some of the objectives that come with a price tag attached.

The most obvious source of funds comes from the consultation itself.  The digital television transition, which seems to have stalled in recent months but is still nominally set for August 2011, should lead to spectrum re-allocation and auction. The transition holds the dual promise of injecting new competition into the wireless sector and filling government coffers with billions in new revenue.  Those billions should be earmarked for the digital economy strategy, effectively enabling the strategy to pay for itself.

With a copyright bill only weeks away, thousands of Canadians are again speaking out for a fair, balanced approach.  The public interest in copyright has predictably led to mischaracterizations of fair copyright as some claim that it is really about wanting everything for free or about opposing copyright reform.  This increasingly leads to a blame the user mentality – the award-winning Vancouver Film School video on DRM and the Amazon Kindle incident from last summer discussed in yesterday's post is labeled as "ridiculous fear-mongering" (yet for years rights holders opened every movie with this film) or users are said to ignore creator concerns with a "gimme" attitude (yet the Writers Union recently urged its members to lobby MPs by claiming that flexible fair dealing would legalize theft). 

The reality is that inflammatory and inaccurate rhetoric can be found on both creator and consumer-focused sites. There are undoubtedly some who use fair copyright to justify obvious cases of infringement, just as there are those that use copyright reform to preserve outdated business models or to guard against uses that the Supreme Court of Canada would surely view as fair dealing. Even a cursory search for online discussion demonstrates that claims that "sensationalist campaigning" on Canadian copyright is primarily found on sites such as mine are simply wrong. 

So yet again in an effort to separate fact from fiction, here is my submission to the copyright consultation from last summer.  It doesn't call for everything to be free, it calls for WIPO implementation, and it emphasizes that updating the law means accounting for both creator and consumer needs.  As I've discussed over the past ten days, sources say Canadian Heritage Minister James Moore has largely rejected this submission – along with thousands of other submissions calling for a fair copyright approach – but it can't hurt to reiterate what those reforms could look like.  For the many Canadians whose views may also be ignored, now is a good time to remind their MPs and the Ministers what they think the copyright bill should contain.

Copyright Consultation Submission

My name is Michael Geist.  I am a law professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Internet and E-commerce Law.  I am also a syndicated weekly columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. 

I have been actively engaged on copyright reform issues for many years.  In 2005, I edited In the Public Interest: The Future of Canadian Copyright Law, an 18-essay collection that assessed Bill C-60.  I provided extensive commentary on Bill C-61 on my blog with dozens of postings examining virtually every major provision in the bill.  I have appeared before several Parliamentary committees on copyright issues and I founded the Fair Copyright for Canada Facebook group, which grew to more than 92,000 members in the weeks following the introduction of the bill.  In the fall of 2008, I released Why Copyright?, a documentary film co-produced with Daniel Albahary that featured interviews with a wide range of Canadians on the issue of copyright reform.

I was grateful for the opportunity to participate at the copyright roundtable held in Gatineau, Quebec this past July.  This submission supplements those comments with additional specifics on recommended reforms.  My comments are provided in my personal capacity as a Canadian with a keen interest in the future of Canadian copyright.

Copyright Reform Process

Before addressing the consultation questions, I have two comments about process.  First, thank you to Industry Minister Clement and Canadian Heritage Minister Moore for launching this consultation.  As promised, it has been fair, transparent, and accessible to all Canadians. 

Second, this consultation should be viewed as the start of an ongoing process to craft Canadian copyright law.  Once a bill is tabled, it is essential that Canadians again have the opportunity to register their views through an open, comprehensive committee process.  Moreover, Canadians should determine the shape and scope of Canadian copyright law.  International treaty negotiations, particularly the ongoing Anti-Counterfeiting Trade Agreement discussions, should not effectively pre-determine domestic reforms.  The ACTA negotiations have generated considerable concern among many Canadians and the government should demand that those negotiations be conducted in an open manner with the release of draft text for public comment.

Why does copyright matter?

The consultation’s first question is also the most personal since the answer will be different for almost everyone. 

For me, copyright matters because I am a professor and my students need access to copyrighted materials and the freedom to use those materials.  It matters because I am a researcher who needs assurance that as materials are archived they will not be locked down under digital rights management.  It matters because I am deeply concerned about privacy and fear that DRM could be harmful to my personal privacy.  It matters because I have created videos and need flexibility in the law to allow for remix and transformed works and do not want my content taken down from the Internet based on unproven claims.  It matters because I am a writer and I need certainty of access to speak freely.  It matters because I am a consumer of digital entertainment and I want the law to reasonably reflect the right to view the content on the device of my choice.  It matters because I am a parent whose children have only known life with the Internet and I want to ensure that they experience all the digital world has to offer.  It matters because I live in a city with a strong connection to the digital economy and we need forward-looking laws to allow the next generation of companies to thrive.  It matters because I am a proud Canadian who wants laws based not on external political pressure, but rather on the best interest of millions of Canadians.

How to remain relevant?

Developing copyright law principles that remain relevant years from now is unquestionably a difficult challenge.  With references to VHS tapes and the decision to block network-based PVR services, Bill C-61 was outdated the moment it was introduced. In order to introduce legislation that will stand the test of time, the government needs a principle-based, forward-looking approach.  I would argue that there are four essential ingredients.

First, copyright law should strive for balance between creator rights and users’ rights.  If the law tilts too far in one direction, the other side is virtually guaranteed to put the issue of reform back on the table and the changes do not last. 

Second, the law must be technologically neutral.  Copyright has proven remarkably resilient over the decades in large measure because it states broad principles about the scope and limits of protection.  If copyright veers too far toward specific technologies by mandating new protection for specific business models or technological innovations, those rules risk being overtaken as the technologies and marketplace evolve.

Third, the law should strive for simplification and clarity.  Copyright may once have been a niche issue understood by a small number of experts, yet today it affects the daily lives of millions of Canadians.  If Canadians are to respect the law, they must first understand it.  When Bill C-61 proposed a 12-part test to determine whether recording a television program was legal, it rendered the law far too complex for the average person.

Fourth, the law should embrace flexibility, which has allowed many copyright provisions to adapt to continually changing economic and technology environments. Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary film makers, musicians, teachers, researchers, businesses, or consumers.

Flexibility applies not only domestically but at the international level as well.  The same challenges we face on the domestic front are only magnified at the international level in treaties.  That means that those treaties – particularly the WIPO Internet treaties – are more flexible that is often appreciated.  Compliance with those treaties can be achieved in many ways and following a single model – such as the U.S. DMCA – is not needed to meet the standard.

What to do?

The final three consultation questions really ask the same thing with slightly altered perspectives – what should we do to foster innovation and creativity, competition and investment, and to position the country as a leader in the digital world.  At its heart, each of these questions is asking for comments on proposed reforms that are forward-looking and ensure that the goals of innovation, creativity, and marketplace success are met.  While it is possible to answer each individually, there is considerable overlap.  For example, a more flexible fair dealing provision has benefits for innovation, for creativity, for competition, and for the digital economy. The same is true for anti-circumvention provisions that retain the copyright balance.

In an ideal world, we might start from scratch to create a law that truly makes sense in the current environment.  We are not starting from scratch, however.  The reality is that there is an international context with treaties we have ratified (Berne Convention) and treaties we have signed but not yet implemented ((WIPO Internet treaties). Moreover, there is a domestic context, with Bill C-61 surely used as reference point. 

My response focuses on seven areas of copyright reform.

1.    Flexible Fair Dealing

Expand the fair dealing provision by adding flexibility through the addition of “such as” to the current wording. 

Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent).  Fair use does not mean free use – rather, it means that there is a balance that allows certain uses of works without permission so long as the use is fair.  The Supreme Court of Canada has already ruled that Canada’s fair dealing provision 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.  The ideal remedy to address other categories such as parody, time shifting, and device shifting is to make the current list of categories illustrative rather than exhaustive.  This can be best achieved by adding the words “such as” to the current provision.  This would be a clean, technology-neutral approach.

In the event that specific new fair dealing exceptions are required (either directly within the statute or to provide guidance on the new flexible provision), key exceptions to address include:

1. Parody and Satire
2. Time Shifting
3. Format Shifting
4. Music Shifting
5. Teaching

2.    The Anti-Circumvention Provisions

Anti-circumvention provisions must be directly linked to copyright infringement. 

The anti-circumvention provisions have been by far the most controversial element of recent attempts at Canadian copyright reform.  The experience in the United States, where anti-circumvention provisions effectively trump fair use rights, provides the paradigm example of what not do to.  It should only be a violation of the law to circumvent a technological protection measure (TPM) if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing, private copying, or any other legal purposes.  This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the World Intellectual Property Organization’s Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the DMCA.

The need for the link between anti-circumvention for the purpose of copyright infringement is crucial since to do otherwise goes far beyond what is needed to comply with the WIPO Internet treaties and ultimately has the effect of eviscerating fair dealing in the digital environment. 

Indeed, using a C-61 style approach to anti-circumvention necessitates a myriad of exceptions.  These include exceptions for:

• Circumvention of cell phone locks
• Fair Dealing
• Court cases, laws, and government documents
• Personal uses
• Digital archiving
• Teaching
• Protection of Minors
• Software filtering programs
• Obsolete or broken digital locks
• Non-infringing access
• Research
• Interoperability
• Privacy
• Perceptual disabilities

Many of these exceptions were missing from C-61.  Should the government decide to re-introduce the C-61, exception-based approach to anti-circumvention, these additional exceptions should be included.

No ban on devices that can be used to circumvent a TPM, provided that it has non-infringing uses. 

Canada should not ban devices that can be used to circumvent a TPM.  The reason is obvious – if Canadians cannot access the tools necessary to exercise their user rights under the Copyright Act, those rights are effectively extinguished.  If organizations are permitted to use TPMs to lock down content that threatens fair dealing, Canadians should have the right to access and use technologies that restores the copyright balance.

From a WIPO ratification perspective, there is no requirement for this provision.  Indeed, Bill C-60 provided a model that did not touch devices themselves, choosing instead to target conduct involving circumvention for the purposes of copyright infringement.  By removing the unnecessary ban on devices that can be used to circumvent, there is a greater likelihood that Canadians would have access to programs that could be used to retain their existing rights and protect their privacy.

Create authorized circumventers

The removal of the provisions that target the legality of circumvention devices is one way to help ensure that the law does not eliminate basic copyright user rights.  There are other approaches, however, that can be introduced in tandem with that change. New Zealand's recent copyright law reforms introduced the concept of "qualified circumventers." The law grants special rights to trusted third parties who are permitted to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.  The current list of qualified circumventers includes librarians, archivists, and educational institutions. This approach rightly recognizes that many people will be unable to effectively use the exceptions inserted into the law.  By creating a class of trusted circumventers, the law creates at least one mechanism to ensure that users retain their existing copyright rights.

Establish a Positive Requirement to Unlock for Exceptions/Right of Access

Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights come responsibilities."  In this case, if companies obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world, which often identify courts, tribunals or mediators as the source to ensure that rights holders do not use DRM to eliminate user rights.

3.    The Intermediary Provisions

Establish a legal safe harbour for Internet intermediaries supported by a “notice and notice” takedown system

The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world.  Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats.  Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners.  The ideal Canadian model would be a “notice and notice” system that has been used successfully for many years on an informal basis.

Establish a Useful Provision for ILTs

The inclusion of "Information Location Tool Providers" (ie. search engines) provisions in Bill C-61 was a bit of a surprise. By far the most problematic aspect of the ILT provisions was the creation of a notice-and-takedown system for search engines.  Unlike ISPs – who were subject to the more-balanced notice-and-notice approach – ILTs were effectively subject to a notice-and-takedown system without any of the counter-notification or balancing provisions contained in the U.S. DMCA. Bill C-61 created a parallel notice and takedown system for ILTs since section 41.27(2)(f) limited the availability of the safe harbour to instances where no notification of copyright infringement has been received.  This would have effectively forced ILTs to remove content upon notification since failure to do so risked potential liability. 
While a notice-and-takedown approach for ILTs was bad enough, it was made worse by the absence of any balancing provisions.  For example, the U.S. DMCA includes a "counter-notification" provision that allows for the re-posting of content that has been taken down.  There was no such provision in C-61, meaning that the ILT provisions were ripe for abuse. There are benefits to creating an ILT safe harbour, but they should not incorporate a notice-and-takedown requirement.

Reject A Three-Strikes and You’re Out System

Several countries have begun to consider establishing a “three-strikes and you’re out system” that removes Internet access based on unproven allegations of infringement. Attempts at three-strikes systems have struck out in virtually every country where they have been raised. Internet access is far too important to establish a system that would cut off access based on unproven allegations of infringement.  The proposals raise a host of due process and constitutional concerns and should be rejected as a possible alternative for Canada.

4.    Modernize the Law

Modernize the backup copy provision

As part of a major set of copyright reforms in 1988, Canadian copyright law was amended to allow for the making of backup copies of computer programs. In 1988, backing up digital data meant backing up software programs.  Today, digital data includes CDs, DVDs, and video games.  All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional.  From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment. "Modernizing" copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

Rationalize the Statutory Damages Provision

Canada is one of the only countries in the world to have a statutory damages provision.  It creates the prospect of massive liability – up to $20,000 per infringement – without any evidence of actual loss.  This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for several peer-to-peer file sharing defendants and leaves many with little option but onerous settlement.  Before Canada faces similar developments, we should amend the statutory damages provision by clarifying that it only applies in cases of commercial gain. Moreover, the provision should not apply where the infringer had a good faith belief that the alleged infringement was fair dealing.

5.    Enhance the Public Domain

Do not harm the public domain with copyright term extension

While some countries have extended the term of copyright beyond the Berne Convention requirement of life of the author plus 50 years, there is no compelling reason – either from an economic, creativity, or innovation perspective – to extend the term.  Indeed, there are strong arguments that harming the public domain would have the opposite effect. The government should make a clear commitment not to extend any further.  Moreover, it should identify a presumed public domain date (based on birth date and reasonable life expectancy) to facilitate digitization of Canadian heritage.

Abolish Crown Copyright

Dating back to the 1700s, crown copyright reflects a centuries-old perspective that the government ought to control the public's ability to use official documents.  Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission.  While permission is often granted, it is not automatic. The Canadian approach stands in sharp contrast to the situation in the U.S. where the federal government does not hold copyright over work created by an officer or employee as part of that person's official duties.  Government reports, court cases, and Congressional transcripts can therefore be freely used and published.

The existence of crown copyright affects both the print and audio-visual worlds and is increasingly viewed as a barrier to Canadian film making, political advocacy, and educational publishing. Beyond the policy reasons for abandoning crown copyright, there are financial reasons for reforms.  The federal crown copyright system costs taxpayers hundreds of thousands of dollars.  Documents from Public Works and Government Services Canada, which administers the crown copyright system, reveal that in the 2006-7 fiscal year, crown copyright licensing generated less than $7,000 in revenue, yet the system cost over $200,000 to administer. In most instances, Canadians obtain little return for this investment.  Ninety-five percent of crown copyright requests are approved, with requests ranging from archival photos to copies of the Copyright Act.

Given the significant costs associated with a program that does more harm than good, any new copyright reform should eliminate crown copyright and adopt in its place a presumption that government materials belong to the public domain to be freely used without prior permission or compensation.

6.    Effective Library and Education Provisions

Do Not Implement An Internet Exception for Education

One of the most controversial aspects of Bill C-61 was the inclusion of special educational Internet exception.  The provision split the education community, generating support from some education groups and opposition from others. I do not believe that the exception is either necessary or equitable.  The law already permits many educational uses of Internet materials without compensation. The educational Internet exception should be dropped in favour of a more flexible fair dealing provision discussed above that treats educators, creators, and all Canadians in an equitable manner.

In fact, the Internet exception was more than just unnecessary – it was harmful.  First, rather than improving access, the exception would have encouraged people to take content offline or to erect barriers that limit access (including DRM).  Many website owners who may be entirely comfortable with non-commercial or limited educational use of their materials, may object to a new law that grants the education community unfettered (and uncompensated) usage rights.  Accordingly, many sites may opt out of the exception by making their work unavailable to everyone.  This is obviously a lose-lose scenario that arises directly out of the exception.

Second, the implication of the exception was that using publicly-available Internet materials is not permitted unless one has prior authorization or qualifies for the exception.  This suggests that millions of Canadians outside the education system who use Internet-based materials are somehow violating the law.  This is simply wrong – an enormous amount of online content is intended for public use or qualifies as fair dealing – and to imply otherwise sends the wrong message.  Indeed, many of the concerns expressed by the education community apply equally to other groups who do not qualify for the exception. Third, the exception may have violated international law.  There are doubts that the provision complied with Canada’s existing obligations under the Berne Convention, the world's foremost international copyright treaty.  Given that the exception raised these real harms, it should scrapped by moving toward a flexible fair dealing provision.

Library Provisions Should Rely on Fair Dealing

E-reserves are the electronic equivalent of the traditional library book reserves – books or materials that a professor places on reserve in the library so that it is accessible to the entire class. In the aftermath of the LSUC v. CCH Supreme Court of Canada decision, a growing number of universities began to establish (or consider establishing) e-reserve policies based on fair dealing. Most libraries had traditionally sought licenses for the use of electronic copies of these additional research and reading materials, yet the frustration of lengthy delays and the CCH case spurred many to think about a fair dealing based approach.  For example, the University of Calgary has established an e-reserve policy that links to accessible online content and scans print material that qualifies as fair dealing. The move toward fair dealing based e-reserve policies have been gaining momentum in Canada, yet Bill C-61 tried to steer libraries in a different direction as the bill includes a specific provision that promotes a license-based approach.  New legislation should reverse that course by emphasizing the benefits of a fair dealing model.

7.    Contract and Copyright

The use of contractual terms to effectively void privacy protection or basic copyright user rights has become all too common with cases such as the Sony rootkit providing a classic example of how contractual terms that quash important legal rights are buried beneath the "I agree" button.

Governments are understandably loath to intervene in privately negotiated contracts.  However, not every contract or contractual term is enforceable – there are certain terms (and certain contracts) which run counter to important public policy goals that will often be rendered unenforceable by a sympathetic court.  On this particular issue, we should not wait for the courts to intervene.  Rather, Canada should identify the core protections and policies that underlie the copyright balance and establish rules that prohibit attempts to "contract out" of such terms.

Industry Minister Tony Clement has launched a national digital economy strategy consultation.  There is a consultation paper, online forum, and roundtables planned.  The deadline for comments is July 9, 2010.  Copyright merits a specific section on the consultation website, with a reference to the 2009 consultation.  The consultation document includes a several paragraphs on copyright, with a heavy emphasis on compensation for creators.  It is the 2009 copyright consultation, however, that may leave some skeptical.  As Rob Hyndman quickly tweeted "I wonder if the Tories will pay as much attention to the digital economy consultation as they did to the copyright consultation."  I suspect many would-be participants are wondering the same thing.  I'll post much more on the consultation in the days ahead.

Industry Minister Tony Clement held a press conference on Sunday to announce the first round of Broadband Canada projects to receive funding. The 52 projects will help bring service to 169,000 households.

Yesterday's post on the government's plans for the copyright bill generated widespread coverage both online and in the mainstream media.  There were many notable blog posts from creators (here, here) and other sites (here, here, here, here, here, here). The media picked up on the story:

• Globe and Mail: Pending copyright bill to mimic U.S.: Geist
• CBC: 'Anti-consumer' copyright bill on way: expert
• Canwest: Consumers won't like conservative copyright bill: expert
• Financial Post: Conservatives preparing new copyright bill for June, expert
• Wire Report: Tories poised to repeat Bill C-61 copyright legislation, Geist says
• GigaOm: Canadian Government Planning Strict New Copyright Law?
• Exclaim: New, Harsher Canadian Copyright Bill Reportedly Heading Our Way 
• Fast Forward Weekly:  Harper Conservatives set to ram through copyright bill  

The articles themselves are home to hundreds of comments, with the CBC article alone featuring more than 700 comments in less than 24 hours.  The Wire Report includes a comment from Barry Sookman, CRIA's lawyer, arguing that leaking information was inappropriate and that the post is trying to "put pressure on the government to change a decision that is already made."

While Canadian Heritage Minister James Moore and the Prime Minister's Office were unsurprisingly mum on the contents of the bill, Liberal MP Justin Trudeau didn't mince words in this tweet: "Forget the hockey spat; DMCA is where @mpjamesmoore and I REALLY disagree."

Update: It was brought to my attention that the CBC report says I that said that the bill will end fair dealing. I said no such thing. I did not speak to CBC before the publication of that article and the post on which it is based clearly refers to flexible fair dealing reform, not the elimination of fair dealing.

Months of public debate over the future of Canadian copyright law were quietly decided earlier this week, when sources say the Prime Minister's Office reached a verdict over the direction of the next copyright bill.  The PMO was forced to make the call after Canadian Heritage Minister James Moore and Industry Minister Tony Clement were unable to reach consensus on the broad framework of a new bill.  As I reported last week, Moore has argued for a virtual repeat of Bill C-61, with strong digital locks provisions similar to those found in the U.S. Digital Millennium Copyright Act and a rejection of a flexible fair dealing approach. Consistent with earlier comments on the need for a forward-looking, flexible approach, Clement argued for changes from C-61.

With mounting pressure from the U.S. – there have repeated meetings with senior U.S. officials in recent weeks – the PMO sided squarely with Moore's vision of a U.S.-style copyright law.  The detailed provisions will be negotiated over the coming weeks by the respective departments, but they now have their marching orders of completing a bill that will satisfy the U.S. that comes complete with tough anti-circumvention rules and no flexible fair dealing provision. 

The bill is not expected until June, but it will have dramatic repercussions 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.

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.

In addition to my Hill Times op-ed this week on the transformation of Canadian Heritage Minister James Moore from iPod minister to iPadlock minister, the paper includes a second article with some predictions for copyright reform.  The opening of the article includes a quote from Canadian Heritage Parliamentary Secretary Dean Del Mastro on the reform process:

"It would be naïve of me to say that we could introduce a bill on copyright that would be loved on all sides."

Del Mastro's comment is consistent with the conventional wisdom on copyright reform, namely that it is a contentious issue pitting users against creators that is difficult to reconcile.  Yet the conventional wisdom here may be wrong.  It is true that a copyright bill is unlikely to be loved by all sides. In fact, a bill loved by any side is probably a bill that does not strike the right balance (that is one of the reasons Moore's shift to strong support for C-61 digital lock rules is so problematic – one group loves it, some tolerate it, many hate it).  Far better, is a bill that is acceptable to all sides.  That means there will be compromises for all with the goal of crafting a bill that meets the most stakeholder needs and maintains the copyright balance.

Is that possible?  I think so.  The key elements in such a bill would include:


1.   Anti-Circumvention Rules

The rules on digital locks are easily the most controversial aspect of the forthcoming bill.  Yet there is more agreement here than disagreement.  At this stage, the majority of stakeholders accept that Canada should implement the WIPO Internet treaties and with it introduce anti-circumvention rules into Canadian copyright law. The fact that we move forward on WIPO should please the U.S. and many copyright lobby groups. 

I – along with many others – have argued that it should only be a violation of the law to circumvent a technological protection measure if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing, private copying, or any other legal purposes.  This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the WIPO Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the DMCA.  It is also the approach that was recently adopted in India and bears some similarity to both New Zealand and Japan.  While some would not love this – some would want more, others less – it is likely an acceptable compromise to most.

2.   Fair Dealing

The other highly controversial issue is fair dealing. We should start by noting that everyone agrees that some reform is needed. The minimum additions that enjoy fairly broad support include parody, satire, time shifting, format shifting, and device shifting.  These additions were either found in C-61 or have strong support from creator groups.  In other words, the government could add all of these without much, if any, opposition.

The bigger question is whether to adopt a more flexible approach by making the fair dealing list illustrative rather than exhaustive.  There are benefits to this approach (greater flexibility, technology neutral, reduces future lobbying and reforms) and – opponents argue – some downsides (uncertainty).  I side strongly with the flexible approach as I believe the concerns are vastly overstated, similar provisions are found in other countries (including the United States), and any changes would be built upon years of Canadian jurisprudence. 

However, it is important to recognize that the issue is even more complicated than an either/or choice.  Bill C-61 included exceptions for education along with provisions targeting libraries and teachers.  The value of flexible fair dealing is that addresses all of these exceptions as well, ensuring that many stakeholders don't get everything they want, but may get enough to find the compromise acceptable.

3  .   Intermediary Liability

This should be easy. Both Bill C-60 and C-61 implemented notice-and-notice and the system has been used informally in Canada for years.  Sticking with a provision that is generally viewed as acceptable by all stakeholders makes sense.

4.   Other Provisions

Bill C-61 was a complicated piece of legislation with many other provisions addressing performers rights, photographers rights, statutory damages, and more.  Many of these are not particularly controversial.  It is not that everyone loves these provisions, but most seemingly can live with them in order to strike a deal on copyright.

5.   Private Copying

Private copying has been in the spotlight with the Angus private members bill and the Canadian Heritage motion that passed in the House of Commons.  The Conservatives have been vocal opponents of extending the levy and there is no hope that it will appear in the forthcoming bill.  However, with support from opposition parties and artists groups, a middle ground is needed.  There are multiple proposals on the table for extending the levy (ACTRA, Songwriters Association of Canada) and multiple concerns voiced about how the levy currently functions and the implications of applying it to other media. A commitment to study the levy – what works, what doesn't, and what alternate compensation systems are possible – offers some forward progress in a manner that may again be acceptable to many stakeholders.

With a new copyright bill that may look much like Bill C-61 likely within a matter of weeks, I've launched a new Fair Copyright for Canada Facebook page (distinct from the group) that can be used to keep current and learn more about what can be done as events unfold.  Join today.

Since his appointment as Canadian Heritage minister in 2008, James Moore has carefully crafted an image as "Canada's iPod Minister." Young, bilingual, and tech-savvy, Moore has expressed regular support for the benefits of the Internet and is always ready with a quick "tweet" for his many followers.  Yet as my op-ed in the Hill Times notes (HT version (sub required), homepage version), according to the scuttlebutt throughout the copyright community, Moore may be less iPod and more iPadlock. As the government readies its much-anticipated copyright package, Moore is said to be pressing for a virtual repeat of Bill C-61, the most anti-consumer copyright proposal in Canadian history.

Moore's about-face on copyright will come as a surprise to those who have heard his enthusiasm for new technology and the Internet.  In June 2009, Moore told Industry Minister Tony Clement's Digital Economy conference that "the old way of doing things is over.  These things are all now one. And it's great. And it's never been better. And we need to be enthusiastic and embrace this things."

Those comments were quickly followed by the national copyright consultation that generated thousands of responses, the majority of which called on the government to abandon the C-61 approach in favour of copyright rules that struck a better balance between the interests of creators and consumers.

In recent months, Moore seemed to support a more consumer friendly approach.  When NDP MP Charlie Angus introduced a private member's bill last month to extend the private copying levy to devices such as iPods, Moore was quick to lambaste the proposal as the iTax.  Heralded as an "iPod Freedom Fighter," Moore proclaimed the bill a serious threat to consumers.

Days later, Moore reserved judgment on the Canadian Radio-television and Telecommunications broadcast policy decision that opened the door to a new fee-for-carriage system for local broadcast signals.  Once again, Moore adopted a pro-consumer position, indicating that his view on the decision would depend upon its consumer impact.

Moore's posturing won him few friends in the Canadian cultural community, with some suggesting that the Canadian Heritage minister should spend less time focusing on his iPod and more on Canadian artists.

The copyright bill may still be several weeks away, but reintroducing Bill C-61 with only minor tweaks – a bit more flexibility for recording television shows or transferring content from one format to another – would leave in place the core provisions of the bill that generated widespread discontent.  These include U.S.-style legal protection for digital locks known as anti-circumvention legislation and a rejection of the flexible fair dealing approach that attracted considerable support during the copyright consultation as a balanced, technology-neutral solution.

What is most surprising with this path is that there are solutions that would toughen Canadian copyright law and provide the flexibility that business, consumers, and creators say they need.

For example, virtually everyone agrees that Canada should implement the World Intellectual Property Organization's Internet treaties. Yet there is considerable flexibility in how those treaties are implemented. Indeed, just last week India, home to a thriving movie and technology market, tabled legislation designed to bring it into conformity with those treaties. The Indian approach – much like the earlier Canadian Bill C-60 – sought to maintain the copyright balance that exists offline in the online world.

Similarly, a growing number of countries – led by the United States – have adopted flexible fair dealing or fair use provisions that benefit creators, business, and consumers.  Flexible fair dealing based on existing Canadian jurisprudence would ensure a fair-for-all, not a free-for-all.

Last week, the Standing Committee on Canadian Heritage heard about the need to target bad actors.  Canadian law has many tools to do so, with major record labels having pressured some peer-to-peer sites offline (such as QuebecTorrent) and gearing up to challenge others in Canadian courts (isoHunt).

Recent experience indicates that the copyright bill isn't final until tabled, but after spending the summer of 2008 fighting Bill C-61 and the summer of 2009 revisiting copyright reform as part of the national consultation, copyright is unquestionably on the public radar screen.  Canadians had been promised a forward-looking, technology neutral approach, but they may soon find that someone has hit the delete button on those promises.  I'll be posting more in the coming days about what people can do – in the short term, I've launched a new Fair Copyright for Canada Facebook page (distinct from the group) that can be used to keep current and learn more about what can be done as events unfold.