Caving to Washington? "Canadian DMCA" expected to pass

By Matthew Lasar

Once more into the breach goes the government of Canadian Prime Minister Stephen Harper, resubmitting its sweeping revision of Canadian digital copyright law for Parliament's consideration.

"Our Government received a strong mandate from Canadians to put in place measures to ensure Canada's digital economy remains strong," declared James Moore, Minister of Canadian Heritage and Official Languages as he introduced the announcement of law C-11—The Copyright Modernization Act. "This bill delivers a common-sense balance between the interests of consumers and the rights of the creative community."

News accounts say that C-11 is an exact duplicate of Bill C-32, which croaked when the 2010 Parliament dissolved without passing the bill. Now, as then, one of the biggest points of contention will be the provisions regarding "digital locks." These add up to a Canadian version of the United States' Digital Millennium Copyright Act, with its DRM anti-circumvention provisions that make a variety of fair dealing (or fair use) activities untenable.

But critics of that portion of the legislation, such as Canadian law professor Michael Geist, suggest that this time around, the government will get its way.

"After years of false starts, it is clear that this copyright bill will pass, likely before the end of the year" Geist writes. "While there is much to like in the bill, the unwillingness to stand up for Canadians on digital locks represents a huge failure. Moreover, it sends the message that when pressed, Canada will cave."

The pressure to give in comes in part from the White House, revealed by a WikiLeaks cable to have been quite actively lobbying Canada to get on the IP enforcement bandwagon for years. Around 2007, the Canadian Prime Minister's office went so far as to share with the US the mandate letters it sent to two key ministers on copyright, according to the dispatch.

Designed to hack

Here are some of the highlights of digital lockdown section of the proposed law. C-11 makes unlawful the "manufacture, sale and distribution of devices that are primarily designed to hack digital locks." No circumventing or bypassing technologies allowed, and no offering services that do this bypassing either, with civil and criminal penalties for offenders. Even if the resulting use of the material would be legal, digital locks trump user rights.

Digital locks can only be hacked under the following conditions:

• law enforcement and national security activities;
• reverse engineering for software compatibility;
• security testing of systems;
• encryption research;
• personal information protection;
• temporary recordings made by broadcast undertakings;
• access for persons with perceptual disabilities; and
• unlocking a wireless device.

As that last bullet point indicates, the bill allows consumers to unlock their mobiles to switch carrier services. "However, this will not override any contractual or other agreement that may exist between consumers and their service providers," the announcement adds.

As for flexibility in the digital lock provisions? The notice says that the government "will also retain the ability, through regulatory power, to provide new exceptions to the digital lock prohibition to ensure access where the public interest might be served or where anti-competitive behaviour arises." So presumably the issue will be thrown to various Ministries to consider, following C-11's passage.

Notice and notice

The proposed law also ups the pressure on ISPs regarding accusations of copyright infringement by subscribers:

Because ISPs are often the only parties that can identify and warn subscribers when they are being accused of infringing copyright, the new provisions will compel all ISPs to participate in the "notice and notice" regime. In other words, when an ISP receives notice from a copyright owner that one of its subscribers is allegedly hosting or sharing infringing material, the ISP will be required to forward the notice to the subscriber and to keep a record of such relevant information as the identity of the alleged infringer. ISPs that fail to retain such records or to forward notices would be liable for civil damages.

But there are also measures friendly to journalists, artists, librarians, and educators:

• Wider fair dealing exemptions: Parody and satire are added to the list.
• Half a century: The bill sets performer/production copyright protection for sound recordings at "50 years from the time of publication of a musical performance. "
• Internet mashups: They're ok as long as done for non-commercial purposes, the material was "legitimately acquired," and "the work they create is not a substitute for the original material, and does not have a substantial negative impact on the markets for the original material, or on the creator's reputation. "
• Online classrooms: Copyrighted material used in lessons conducted over the 'Net permitted for teachers and students. The summary offers examples: "This allows music students—both those in the classroom and those who are participating from a remote location—to perform a copyright-protected song together as part of a lesson. "
• Current events: Schools won't have to pay royalties to record a broadcast of a news or public affairs program for educational purposes. Big exception—this doesn't count for documentaries.
• Libraries: The law lets librarians digitize content and electronically send it to patrons via interlibrary loan. "The requesting client could either view the material on a computer or print one copy." Also, libraries, archives, and museums will be able to duplicate copyright material in an "alternative" format "if there is a concern that the original is in a format that is in danger of becoming obsolete. "

Geist takes solace in these more positive aspects of the legislation. But, his post concludes, "if global intellectual property developments over the past two decades teach anything, it is that efforts to reduce foreign pressures invariably lead to a brief respite before escalating demands and political pressures. The failure of C-11 is that the government isn't relieving the copyright pressure. It is asking for more."