Canada's DMCA, dissected

Michael Geist sez,
As expected, the Canadian government today introduced its own DMCA [ed: the US copyright law that has been in place for 12 years, resulting in tens of thousands of lawsuits against Americans without having any effect on infringement or delivering any new income to artists]. Despite a full national consultation and a public rejection of the old Bill C-61, discouragingly some things have not changed. Canadian Heritage Minister James Moore won the internal fight over Industry Minister Tony Clement for a repeat of C-61's digital lock provisions and against a flexible fair dealing approach and today's bill reflects those policy victories.

However, over the past month, Clement made steady in-roads in trying to restore some balance in the bill and achieved some wins. The bill contains some important extensions of fair dealing, including new exceptions for parody, satire, and (most notably) education. It also contains more sensible time shifting and format shifting provisions that still feature restrictions (they do not apply where there is a digital lock) but are more technology neutral than the C-61 model. There is also a "YouTube exception" that grants Canadians the right to create remixed user generated content for non-commercial purposes under certain circumstances. While still not as good as a flexible fair dealing provision, the compromise is a pretty good one. Throw in notice-and-notice for Internet providers, backup copying, and some important changes to the statutory damages regime for non-commercial infringement and there are some provisions worth fighting to keep.

Yet all the attempts at balance come with a giant caveat that has huge implications for millions of Canadians. The foundational principle of the new bill remains that any time a digital lock is used - whether on books, movies, music, or electronic devices - the lock trumps virtually all other rights. In other words, in the battle between two sets of property rights - those of the intellectual property rights holder and those of the consumer who has purchased the tangible or intangible property - the IP rights holder always wins. This represents market intervention for a particular business model by a government supposedly committed to the free market and it means that the existing fair dealing rights (including research, private study, news reporting, criticism, and review) and the proposed new rights (parody, satire, education, time shifting, format shifting, backup copies) all cease to function effectively so long as the rights holder places a digital lock on their content or device. Moreover, the digital lock approach is not limited to fair dealing - library provisions again include a requirement for digital copies to self-destruct within five days and distance learning teaching provisions require the destruction of materials 30 days after the course concludes.

The digital lock provisions are by far the biggest flaw in the bill, rules that some will argue renders it beyond repair. I disagree. The flaw must be fixed, but there is much to support within the proposal. There will undoubtedly be attacks on the fair dealing reforms and pressure to repeal them, along with the U.S. and the copyright lobby demanding that their digital lock provisions be left untouched. If Canadians stay quiet, both are distinct possibilities. If they speak out, perhaps a fixable bill can be fixed. I'm relaunching Speak Out on to focus on this bill and encouraging Canadians to join the Fair Copyright for Canada Facebook group(to get active) and the Fair Copyright for Canada Facebook Page (to stay updated).

The Canadian Copyright Bill: Flawed But Fixable


  1. ed (presumably Cory since its not in the original article) says “the US copyright law that has been in place for 12 years, resulting in tens of thousands of lawsuits against Americans without having any effect on infringement or delivering any new income to artists”

    So given that a) they have been doing this for 12 years in the US and b) they are pushing to be allowed to do this elsewhere (or to remove the friction) is it correct to assume that this is a good revenue stream for the Media companies? – and that they aren’t actually interested in either of the things that you mention – it is just the money they are after.

    On the point of money for artists. Robert Fripp writes of his on going battle to get UMG to pay money they owe him:

    If the media companies are not even accounting for and paying money from sales directly attributable to artists what hope have artists got to try and match piracy income against their own.

  2. It makes me wonder a few things…

    If iTunes sells music DRM-free, how could anyone pressing music on CD (who are already having a hard time of it, I imagine) think that putting these so-called locks on their product is a good idea?

    Furthermore, is it going to be clearly marked which media are crippled by this BS and which isn’t? I feel like it’d have to be; something akin to list of ingredients/nutritional information on food. (**Caution: reasonable use of this digital media product may cost you thousands of dollars.**) Maybe that way, people who are often so lax on the activism front (lord knows I am) can at least show their dissent with their wallets.

  3. One thing I wonder about this ‘digital locks trump all other rights’, or for that matter the US DMCA, is whether digital locks can be used as legal protection to content that would otherwise be public domain.

    CTEA extended copyright in 1998, but we’re more than halfway through until content flows into the public domain again. If it is illegal to break digital locks, and the content companies spent 20 years adding digital locks to their content, have the created a perpetual copyright?

  4. The digital lock, WHICH TRUMPS EVERYTHING, does not only apply to digital media.
    It can apply to your car, or your refrigerator, or your air conditioner, or your furnace, or just about anything else with a computer system in it.
    Today, that almost covers just about every electrical powered item we use.

    If the warranty is expired on your car but you want to talk to the computer to fix it, the digital lock may stop that and you will be forced to go back to the dealer for a very expensive repair.

    If they somehow discover how to put digital locks in hand tools, we are doomed.

  5. @aml: That’s the fear. Certainly copyright holders in the US have tried to use DRM to protect works that can’t be protected by copyright–for example, software programs that were so tiny and so purely functional it’d be like trying to copyright “Dear [name].” If you believe the interpretations put forward by a number of copyright scholars, or just accept the statute as is (without the mitigating interpretations put onto it by courts in recent years), then yes, breaking the DRM placed on a public domain work would be a violation.

  6. Stricter caps on monetary compensation for charges of software piracy should also be made. Make it more in line with what the corporations actually lose on infringements. Less than a hundred dollars per infringement, instead of thousands, and reserve larger caps for piracy operations where the culprit is actually making cashola.

    This keeps these procedurally generated lawyer task forces from spamming subpoenas at a guaranteed profit, while leaving actual pirates in a place where they can’t benefit.

    1. It would be wonderful if “monetary compensation for charges of software piracy…” were actually “in line with what the corporations actually lose on infringements” particularly as I have yet to hear any credible figures for media losses caused by non-commercial infringement.

      They should not be able to pull unsubstantiated figures out of the air and claim them as fact. That smacks of fraud.

      1. “They should not be able to pull unsubstantiated figures out of the air and claim them as fact. That smacks of fraud.”

        Oh, no. It’s only fraud when a living human being does it. When it’s a corporation doing it, it’s called “leveraging economies of scale”.

        To paraphrase another topical corporate greed-bag weasel: ” I want my justice back!”

  7. The digital locks provision trumping all is a deal-breaker. Remove that and I can live with the rest.

  8. “The digital lock provisions are by far the biggest flaw in the bill, rules that some will argue renders it beyond repair. I disagree. The flaw must be fixed…”

    Seriously? The “flaw” is the whole point of the bill. If everything else was scaled back to make detractors happy, the “flaw” would be the core that was left in the bill.

    As has been previously noted on boingboing, the only criteria it has to meet is that it placates the US. And what the US wants is judicial enforcement of “digital locks”, regardless of how trivial they are to bypass. It will save **AA a ton of R&D costs trying to put together truly unassailable digital locks when even a token effort will be backed by law enforcement.

  9. I recently left Facebook due to concerns over their Privacy Policies. Could a better option be provided for people who wish to be involved but not use Facebook?

  10. This post rubs me the wrong way. It excerpts a large proportion of Geist’s original work, making reading his own site more-or-less unnecessary.

    The Atlantic has a nice article this month on this topic.

    Perhaps BB has some kind of meta- thing going on, making a comment-within-a-comment on the nature of information. Perhaps.

    Or perhaps BB is trying to keep trafficon their own site (with ads) and discourage traffic to Geist’s site (ad free). This is, from what I gather in The Atlantic, quite poor form, if somewhat commonly done. It deprives authors of revenue (or, in this case, traffic) while following the letter, if not the spirit, of the law.

    1. Michael sent the text above for publication on BB. It does not represent anything like the entirety of the linked post, which goes into much more detail.

  11. Does the bill consider using the “analog hole” to be breaking the digital lock? I.e. if it’s legal to transcode video to put it on my iPod, but illegal to break the trivial DRM on a DVD, will it be legal to point a high-quality camera at my DVD-player to make the iPod video?

  12. As a member of Canada’s creative community I find this legislation deeply concerning. I’ve sent a letter to my MP, the PM, Clement and Moore. What else can I do to proactively try to stop this from going forward?

  13. “Does the bill consider using the “analog hole” to be breaking the digital lock?”

    Yes, rather clearly. If a digital lock is placed, avoiding or bypassing said lock counts as circumvention (and this is the definition of “circumvention” that rules out fair use). Emphasis mine:

    ““circumvent” means,

    (a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner;

    It’s notable that you cannot make backup copies of any DRMed work (even bad quality using the Analog Hole), as:

    “29.24 (1) It is not an infringement of copyright in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter (in this section referred to as the “source copy”) to reproduce the source copy if

    (c) the person, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection meas- ure, as defined in that section, or cause one to be circumvented;”

    I assume Fair Use has the same caveats with regard to circumvention (no time to check, it’s not as clearly labeled as the backup copy section).

    It’s clear that the “flaw” Geist cites as fixable is the core of the legislation, and as such has no chance of being changed. This is all about being able to slap a shoddy digital lock on anything they don’t want copied, with the full force of law behind the lock instead of something that would actually cost **IA any money to develop and secure. They’re outsourcing their rights protection to the government, where they do not have to pay a dime for it and can get rubberstamped verdicts for obscene “damages”.

  14. after this, are the Canadians still gonna be charged the “blank recordable media” tax?

  15. Michael Geist was on CBC last night talking about the issue. It seems to have finally hit mainstream, in that it was reported multiple times yesterday about the bill on CBC.

    Two things. One I didn’t think Geist did a good enough job really explaining what this really means in terms that people can understand, though he did have a limited amount of time to work with. The second was I found it really hard to watch as the floating heads, who have no idea, kept making comments that had no factual basis, and went uncorrected. It is this sort of FUD that reinforces the BS out there. That said, at least it is seeing the light of day.

    Tony Clement also was on the CBC beating his drum and spouting all kinds of nonsense. The fact that no one corrects these weasels is the problem. Geist and Doctorow I see as experts in this field, and should be taking politicians to task whenever given a chance. I also saw Doctorow two pieces on TVO and the Agenda and thought they were really well done, however I would love to see him across a panel from Tony Clement or any of the rest.

    I mean one of Tony Clement’s arguments for digital locks is that they don’t work and that companies like apple have gotten rid of them? Really? The reason they don’t work, is that the DRM is broken in about 5 seconds, so it is pointless much like any DRM. However if you make a freaking law, that basically says if you break the DRM you are breaking the law, and are subject to crazy fines and jail, then my bet is they will be effective, and EVERY media company will start using it for EVERYTHING, to control every single facet of your experience to eak out every last dime out of you. And if you should try to circumvent that, they will sue the bejesus out of you.

    They also went out about the US “model” of suing their customers just hasn’t worked. Past tense, like it wasn’t happening anymore. Never mind the thousands of people that got sued by the RIAA or the 5000 or so that are getting sued by the Hurt Locker folks… Ya because none of that is actually happening in their fairy dust, my little pony world view.

    Anyway unless people wake the hell up, this thing is going to go through, and in a couple of years, people are going to look around at the media landscape and ask “what the hell just happened”, when they have zero control over any media they might happen to buy.

  16. About that: are there “statu-Tory” damages specifically quantified in the Draft? If so, in what amount(s)?

    Is it the US DMCA scale of damages, only to be adjusted for the Exchange Rate from time to time?

    Oh I hate to put a song into others’ mouths, but here’s one the RIAA (and others too) may want to adopt as a theme:

    (Although I think that perhaps Mr. Brown, like Mr. Byrne, might (have) object(ed) to their use of it.)

    And some of us hardly need more reasons not to vote Reform…errr, I mean Conservative.

  17. I suspect once this law, like the UK Digital Economy Bill and the US DMCA before it, is in place, and ACTA is signed and put into effect there will no longer be ANY digital media or any digital device manufactured anywhere in the world WITHOUT drm or tpm or digital locks…

    calling the thing by many different names just makes it easier to keep the public confused.

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