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C-61

Back in… – January was it? – I wrote an e-mail to Heritage Minister Josee Verner concerning the impending introduction of a new Canadian copyright bill. I received a form letter back, and I was hardly the only Canadian to complain. The rumored introduction of the bill never happened and one of my professional tenets is that I don’t discuss rumour. That goes for this blog, too.

This past week, however, that bill, called C-61, did finally make it to the floor of Parliament. My address must have been placed on some sort of mailing list because I found this in my inbox on Thursday:

The Government of Canada has introduced Bill C-61, An Act to Amend the Copyright Act. The proposed legislation is a made-in-Canada approach that balances the needs of Canadian consumers and copyright owners, promoting culture, innovation and competition in the digital age.

What does Bill C-61 mean to Canadians?

Specifically, it includes measures that would:

• expressly allow you to record TV shows for later viewing; copy legally purchased music onto other devices, such as MP3 players or cell phones; make back-up copies of legally purchased books, newspapers, videocassettes and photographs onto devices you own; and limit the “statutory damages” a court could award for all private use copyright infringements;

• implement new rights and protections for copyright holders, tailored to the Internet, to encourage participation in the online economy, as well as stronger legal remedies to address Internet piracy;

• clarify the roles and responsibilities of Internet Service Providers related to the copyright content flowing over their network facilities; and

• provide photographers with the same rights as other creators.

What Bill C-61 does not do:

• it would not empower border agents to seize your iPod or laptop at border crossings, contrary to recent public speculation

What this Bill is not:

• it is not a mirror image of U.S. copyright laws. Our Bill is made-in-Canada with different exceptions for educators, consumers and others and brings us into line with more than 60 countries including Japan, France, Germany and Australia

Bill C-61 was introduced in the Commons on June 12, 2008 by Industry Minister Jim Prentice and Heritage Minister Josée Verner.

For more information, please visit the Copyright Reform Process website at www.ic.gc.ca/epic/site/crp-prda.nsf/en/home

Thank you for sharing your views on this important matter.

The Honourable Jim Prentice, P.C., Q.C., M.P.
Minister of Industry

The Honourable Josée Verner, P.C., M.P.
Minister of Canadian Heritage, Status of Women
and Official Languages and Minister for
La Francophonie

You can read the bill a few links in at the Web site linked above.

This bill is a direct descendant of a ruling the Copyright Board made in 2003 and the subsequent legal rulings that upheld it.

Since the 1970s, consumers in Canada have paid an extra levy built into the price of all blank media. When blank cassette tapes and videocassettes became common, the associations representing the music and entertainment industry cried foul to the government, claiming that they would lose business to people who’d copy music and movies rather than buy them. To compensate them, Canada instituted a fee to be imposed on all blank media, which would be collected and forwarded to the film distributors and music labels.

As part of that legislation, the government protected the right of Canadians to copy music. It has since been legal for canadians to record songs off the radio or copy an album borrowed from a friend.

This fee also applied to blank CDs and DVDs when these media became commonplace. As part of the 2003 ruling, the Copyright Board also slapped that fee on portable media players (but not hard drives).

I bet you thought I’d start slagging Bill C-61 in this paragraph. Let’s instead admire some aspects of it. Firstly, C-61 enshrines some rights Canadians have taken for granted. Time-shifting television, that is recording it for later viewing, has always been taken for granted but C-61 explicitly legalizes the practice. It also affirms the rights of Canadians to make copies of media for personal use, one copy per device. If I own a CD, two computers, and an iPod, I can legally make and use four copies of every song on that CD. I can scan books for use on my computer, too.

Another excellent aspect of C-61 is that it removes ISPs from the chain of copyright responsibility. In the US, ISPs are in essence liable for the content of their customers, in the sense that they must immediately shut down a customer’s content if a complaint is made under the provisions of the DMCA. That has become a point of abuse as companies and individuals make DMCA claims against content they find objectionable whether or not it violates the DMCA – and the ISPs are obligated to block the content without any sort of hearing.

C-61 Encodes a “notice and notice” approach to this problem. Complainants may notify the ISP of suspected infringement, but the ISP is only required to pass that notice on to the content owner. The ISP has no obligation to control the content or access to it in any way. It’s less totalitarian and I like it that way.

Here’s the bad part: if any content is protected against copying in any way, Canadians may not break that copy-protection in order to copy the content. This provision overrides any right to make personal copies, thus rendering those rights moot.

This provision is renders the rest of the bill stillborn. All a company has to do to prevent you or I from copying a CD is to put some cheap outdated copy protection scheme on it, say CSS encryption. It invalidates 30 odd years of paying fees on blank media in order to ensure that right. On top of that, any new encryption will be broken. I promise you that. All this bill does is make throw up obstacles in the path of consumers who will break laws to enjoy what they’ve purchased the way they want to. I promise you that, too.

I suspect C-61 will not change anyone’s practices. Downloaders will keep on downloading, which, while perfectly legal, has always been dubious morally, extra fees or no. Strict followers of the rules will continue to do their thing, too. But what C-61 does is move that line so that more of the people occupying the gray area between those extremes become liable for penalties. It’s a bad act.

For more discussion, see Michael Geist and this article from the CBC.

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