Canadian copyright bill: Good and bad

Six months after it was first scheduled to hit the legislature, the government’s proposed copyright law was tabled in the House this morning, giving critics a first look at the law that they have been rallying against for the better part of two years. Although Industry Minister Jim Prentice is trying to rally support for the bill by calling it a “made-in-Canada” solution, prominent opponents such as law professor Michael Geist have made it clear they believe most of the new law’s features have been dictated by outside interests — including the global record industry, U.S. movie studios and other foreign content industries — and have called it “a carbon copy of the DMCA.”

The truth is that the proposed legislation is somewhere in between — in good and bad ways. There are areas in which the Canadian law differs dramatically from the U.S. DMCA — most notably, the use of a so-called “notice and notice” approach when it comes to the liability of Internet service providers for copyright-infringing content, as opposed to the U.S. “notice and takedown” approach. The U.S. law has been criticized by many for effectively forcing services such as YouTube to remove content even when it’s not clear whether it actually infringes copyright, such as when it could fall under the “fair use” exception in the law (Canada has a similar, but more restrictive, concept called “fair dealing”).

Another element of the proposed Canadian law is that the personal (or “non-commercial”) liability for infringement has been reduced from $20,000 per infringement to just $500 — and that’s for each case brought by a copyright holder, even if it involves multiple offences; the existing legislation provides for damages of $20,000 per file. It’s important to note, however, that the reduction doesn’t apply if the person doing the infringing has cracked, broken or otherwise gotten around any digital-rights management controls on the content. Those cases would still be open to the $20,000 per infringement damages that are in the current law.

These “anti-circumvention” provisions are one of the most criticized elements in the new legislation, since some technology advocates argue that they will effectively criminalize behaviour that is essentially harmless, such as a user transferring songs from Apple’s iTunes software (which uses the company’s proprietary DRM technology) to some other format that makes them easier to play on a different device. Red Hat founder Bob Young has also criticized these kinds of restrictions because they could turn hackers and other technology experimenters into criminals, and potentially retard the development of new software in Canada.

In a post on his blog, Michael Geist says that the anti-circumvention rules in Canada’s law are actually worse than in the DMCA. “The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent,” he says. “The effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM’d book, or even unlocking a cellphone.”

One of the biggest sticking points in the legislation, as Geist notes on his blog, is the part that applies to personal infringment. According to past rulings by the Federal Court and statements by the federal Copyright Board, downloading music — even copyrighted music from peer-to-peer networks — appears to be legal, in part because the Canadian Private Copying Levy allows Canadians to make copies for their own personal use, regardless of where the original comes from. In order to launch a lawsuit against an individual, the copyright holder or their agent also has to identify the person doing the downloading by getting their ISP to reveal personal information about them. Past attempts by the Canadian Recording Industry Association to get ISPs to do this have failed.

It’s also worth noting that this copyright legislation is just one of the fronts the government is working on when it comes to protecting the interests of U.S. content companies: there’s also the secretive Anti-Counterfeiting Trade Agreement (ACTA), which is a multi-country effort to create laws that would extend the powers of border guards — allowing them to seize devices that are suspected of containing copyright infringing materials, for example — and would also force ISPs to reveal the identities of even suspected infringers without requiring a court order.

To say that the response to the proposed legislation has been mixed would be an understatement: while the Business Software Alliance put out a statement praising the new law, saying it would help to create jobs and stimulate the economy, the Canadian Music Creators Coalition has dismissed the effort as lame and backward-looking.

“As we feared, this bill represents an American-style approach to copyright. It’s all locks and lawsuits,” said Safwan Javed, the drummer for the band Wide Mouth Mason and a member of the CMCC. “Rather than building a made-in-Canada proposal to help musicians get paid, the government has chosen to import American-style legislation that says the solution to the music industry’s problems is suing our fans. Suing fans won’t make it 1992 again. It’s a new world for the music business and this is an old approach.”

“Who gains from this bill?” asked CMCC member Brendan Canning, co-founder of Broken Social Scene, in a statement released by the coalition. “It’s not musicians. Musicians don’t need lawsuits, we don’t need DRM protection. These aren’t the things that help us or our careers. What we do need is a government that is willing to sit down with all the stakeholders and craft a balanced copyright policy for Canada that will not repeat the mistakes made in the United States.”

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