First Details on Canadian Bill C-61
Search Engine has posted an official statement about the reform bill tabled today. They are still reviewing the bill itself.
This backgrounder itemizes four principles:
- The rights of those who hold copyright must be balanced with the needs of users to access copyright works.
- The Copyright Act must provide clear, predictable and fair rules to allow Canadians to derive benefits from their creations.
- The Copyright Act should foster innovation in an effort to attract investment and high-paying jobs to Canada.
- Canada must ensure that its copyright framework for the Internet is in line with international standards.
Some of these actually sound pretty good. Of course there may lie a vast gulf between a description of what the bill is meant to accomplish and what it actually contains.
The first principle seems to be a strong win, promising the consumer the right to time and format shift as well as generous consideration for fair dealings. But how that will actually jibe with the last principle, given how the global normalization of copyright has almost uniformly meant increased control by rights holders, remains to be see. I like language that talks about access to information, a strong notion in the description of the first principle. It just seems to be at odds with the intention described by some of the other principles. It is curious to note that in many places where this document talks about access, it only talks about access. Outside of the first principle, there is no further mention of any fair uses, transformative or otherwise.
Read that third principle closely, too–Canadian competition is based on “the ability to use high-quality Internet services to create or access copyright content” (emphasis mine). Create or use. Not re-use, remix or transform. The section goes on to talk about new opportunities but only explicitly mentions distribution. Not new or imaginative derivative uses. Just using the internet as yet another retail channel, essentially.
There is also some language strongly hinting at stiffer statutory penalties:
The government believes that it is important to provide stronger measures that rights holders could decide to use to fully exploit and enforce their rights and combat infringement in an Internet environment.
The reference to an Internet environment is particularly chilling. This says to me that Canada may be the latest to fall prey to the entertainment industry’s push for online filtering as the industry is starting to realize that DRM and litigation are failing to protect its outdated business models.
The last section is the worst. It basically just bows down to what WIPO has done with the WCT and WPPT. It comes right out and states “their approach represents the most developed and coherent response by the international community to these new challenges”. Despite the almost whole sale elimination of fair use or fair dealings in the US’s implementation of these treaties, the much maligned DMCA? Few countries have managed to do better with these treaties, at best carving out meager allowances for consumer rights with very strict and daunting boundaries on the other side of which lay ever increasing threats and penalties.
The second half, the proposed approach, delivers on many the horrible gut churns and skin crawls induced by the introductory half. Those consumer protections under the first principle? Only allowed in as far as the consumer doesn’t circumvent DRM. There is some minimal salve in that they seem to be contemplating a cap on statutory damages if the infringement turns out to have been wholly for personal use. Gee, thanks.
I am not a strong enough IP geek to read the tea leaves of the new creator rights but I have a bad feeling when the discussion turns to distribution rights and moral rights. Coupled with the fact that the same section spends as much time considering DRM as a creator right and I think even without detailed analysis or a strong legal and/or historical framework from which to assess these changes, they will mean very bad things indeed for the typical consumer and do more to benefit the middle men than the actual creators.
A glimmer of hope is offered, though.
The bill also introduces important limitations on TM protections to address potential concerns over their impact on freedom of speech, privacy and “follow-on” innovation.
The exceptions listed include reverse engineering, security research and transformation for the purposes of accessibility. There is also some nebulous language about the government reserving the right to further limit DRM where the public interest may be served. I rather suspect the true depth of these limitations is going to depend on considered analysis by the likes of Geist and Felten.
The proposal for ISPs is a surprise, given my initial sense that it would entail filtering. There is no mention of active filtering, quite the contrary. There is some disturbing language about data retention but what this document seems to be describing is a safe harbor similar to that under the US DMCA, with a similar notice and takedown mechanism.
All told, I am not sure this is a step forwards or a step backwards from the deal we’ve been dealt here in the US by the DMCA. It seems to be quantitatively, not qualitatively, different and only minutely so. No doubt the more interesting and progressive measures will be hotly debated by both sides. At a minimum, we now know what we are dealing with and genuine debate can begin.
