A Canadian author's perspective on "radical extremism" and copyright

As the Canadian Heritage Minister James Moore has declared war on copyright reformers who object to his plan to bring US-style "digital locks" rules to Canada, I think it's worth spelling out what my objections, as a Canadian author, are to his plan (my books are distributed across Canada by the excellent HB Fenn; last year I won the Ontario White Pine Award for best book; as I write this, my novel For the Win is on the Canadian bestseller lists).

Minister Moore has proposed a law that would give near-absolute protection to "digital locks" that control use, access and copying of works stored on a computer, mobile device, set-top box, etc. This is nearly the same policy that the US has had since 1998, when it brought down the Digital Millennium Copyright Act (actually, the American version is slightly better, since they've built in a regular review of the policy). In the intervening 12 years, we've learned two things about digital locks:

1. They don't work. Even the most sophisticated digital locks are usually broken in a matter of hours or days. And where they're not broken, it's mainly because you can get the same works by another means -- rather than breaking the iTunes lock, you break the easier Zune lock (or vice-versa), because you can get the same songs either way.

So digital locks don't stop piracy. All they do is weaken the case for buying music, movies and books instead of ripping them off -- after all, no one woke up this morning wishing there was a way to do less with her music. So how could adding a digital lock make a paid product more attractive than the free version?

2. They transfer power to technology firms at the expense of copyright holders. The proposed Canadian rules on digital locks mirror the US version in that they ban breaking a digital lock for virtually any reason. So even if you're trying to do something legal (say, ripping a CD to put it on your MP3 player), you're still on the wrong side of the law if you break a digital lock to do it.

Here's what that means for creators: if Apple, or Microsoft, or Google, or TiVo, or any other tech company happens to sell my works with a digital lock, only they can give you permission to take the digital lock off. The person who created the work and the company that published it have no say in the matter.

So if you buy $1,000 worth of digitally locked books for your Kindle or iPad, the author and the publisher can't give you the right to move those to another device. That means that not only are you locked into the Kindle -- so is the copyright holder. Authors and publishers who decide to stop selling via a digitally locked platform have to take the risk that their readers will abandon their investment in proprietary books in order to follow them to the next device.

So that's Minister Moore's version of "author's rights" -- any tech company that happens to load my books on their device or in their software ends up usurping my copyrights. I may have written the book, sweated over it, poured my heart into it -- but all my rights are as nothing alongside the rights that Apple, Microsoft, Sony and the other DRM tech-giants get merely by assembling some electronics in a Chinese sweatshop.

That's the "creativity" that the new Canadian copyright law rewards: writing an ebook reader, designing a tablet, building a phone. Those "creators" get more say in the destiny of Canadian artists' copyrights than the artists themselves.

It doesn't have to be this way. If Minister Moore is serious about protecting actual creators -- the Canadians who write books, who design games, who perform music, who produce films and TV shows -- then all he has to do is insert a simple exception to his digital locks rule:

A copyright proprietor may authorize the public to remove a digital lock in order to gain access and to use of his copyrighted works
Get that? People who create stuff should have the right to let their audiences move copyrighted works to other platforms.

I challenge Minister Moore to climb down from his nasty smears about copyright reformers and address this and other legitimate concerns over digital locks rules. Thousands and thousands of Canadians spoke out against this kind of rule in the Canadian copyright proceedings. James Moore has tabled a bill that ignores the results of his own consultation, and then had the bad grace to smear the creators and audiences who, in good faith, came forward to participate in the debate over the future of Canadian copyright.

He owes us an apology. And an explanation.


  1. Logic, common sense, and the good of humanity vs. the financial interests of corporations and governments.

    Kind of sums up the state of the world right now.

  2. A copyright proprietor may authorize the public to remove a digital lock in order to gain access and to use of his copyrighted works

    I don’t think that’s enough… then the Gatekeepers will just say to the artists, “If you exercise this right, you’ll never get a deal with us again.”

  3. Or, just re-write the section on Technological Protection Measures such that it’s only a violation of the law to circumvent them for the purposes of copyright infringement. Take away the crap about not allowing devices that can circumvent TPMs. Nice and technology neutral, supports the existing copyright fair dealings exceptions, and fulfills Canada’s obligations under the WIPO Internet Treaties.

    1. Which is in essence what Michael Geist propose, but he is also considered as a “radical extremist”.

  4. Canada has become a travesty of democracy. And I think we can blame in part Canadians because they elected the current junta (I know I live here too, and I was hurt by a lot of disgust when I saw Harper re-elected) – and for a large apathy in general.

    I really hope people get a wake up call now.

    1. Not correct, sorry. The current junta is a minority government, which means that most Canadians did NOT vote for Harper’s government. There are enough seats in opposition to bring down the Conservatives, but the disparate interests of the minority parties prevents this from happening.

      What is really going on is that the minority party leaders are more interested in saving their jobs than leading the country, so the Cons get to pretty much have their way.

      Cut the ties that bind Canadian Conservatives to American Republicans is a better place to start. It’s bad enough that Iraq has a puppet government; we don’t need our government to become one as well.

  5. @dmatos: You have a point, but if you’re going there, you might as well chuck the whole bill. It’s like those laws against committing crimes using the postal service. No change to the laws, just higher penalties for committing a crime in a particular way.

  6. Given the paranoia about terrorism, etc, I would say that being labeled a “radical extremist” is verging on defamation (or is it slander, I can never remember…) and perhaps Cory and others should sue in Canadian courts.

  7. Cory,

    I don’t think your suggested amendment does it. What the vast majority of these technologies are protecting is e-commerce and contracts, not copyright. By putting legal protection for TPMs in federal Copyright law, rather than in provincial e-commerce and contract law, we will always have unintended consequences that harm creators and the public in general.

    If a copyright holder doesn’t know a TPM is protecting a contract, how can they possibly protect their rights in that contract?

    I invite you to check out the letter I wrote to my provincial representatives.

    I believe it is possible to have changes to federal copyright law that complies with the 1996 WIPO treaties, but doesn’t add a new “access” right to copyright, or inappropriately protect non-copyright related technical measures.

  8. @dhasenan: I disagree. The rest of the bill besides the TPM provisions are things I would argue that we should keep. Explicit exemptions for education, updated codification of photographers’ works… there’s some good stuff in there.

    But you still make a good point: if we simply make what’s illegal ‘more’ illegal, there’s really no point to it; so we might as well scrap the whole TPM nonsense instead of removing its teeth this way.

    (( Anyone else find it interesting that wording the TPM provisions in the way we’re being sold that the Act would be used (i.e., only to prosecute those who would do this for infringement) would render the provisions logically worthless? ))

  9. I take some exception to talking about digital locks with regards to iTunes music. They actually did what we wanted, and removed their terrible DRM from their library. I think they should be acknowledged for that. Now if you wanted to bang on them for locks on videos, go right ahead! But let’s recognize progress when it’s made.

  10. I’m not sure what the magic bullet is, but every time we use technology to make a product less convenient and desirable than its’ illegal counterpart, I can’t help but think that the market is essentially flawed. So much of the entertainment industry seems obsessed with removing value from their products and forcing you to buy the inferior item these days. There was a time when music, books, and movies simply couldn’t exist without the useful services provided by publishers. I’m just not convinced that that is the case any more. Even if it is true, there is incontrovertibly a lot more “anti-value” injected by these entities.

  11. Someone mentionned that the add-on to the bill would only create a situation where the backing company of the creator stands in the way of that persons wishes to ignore the block – but many musicians especially have started setting up their own distribution networks and companies. Even mainstream musicians so the step wouldn’t be too big for there to be a similar movement within other areas of the arts?

  12. the explanation is simple – Moore is owned by the media companies. He is the man that has been the driver behind the entire process to bring in the US DMCA. I really do not understand how the heritage minister has ended up playing the major heavy in this whole thing over the industry minister.

    Also, as we all know, Harper is in love with the US, or rather the US as portrayed by the christian right wingnuts, and is doing his best to steer Canada in that direction, of which this copyright bill is only a part of.

  13. Extremism in the defence of liberty is no vice!

    (Two can play at this “let’s ape the USA” game, ya know!)

  14. @Cory,
    I don’t think your amendment is sufficient. Digital locks can prevent fair use, so we need at least a statement that it is not a violation of the law to circumvent digital locks for the purpose of fair use. But I think dmatos’s idea is even better.

  15. Sorry to hear Cory – as James Baldwin once said to me over a smart cocktail in downtown Manhattan in 1956: “I may be black and gay but at least I’m not Canadian eh…”

  16. I agree with Anon above that the amendment isn’t quite sufficient to cover everything wrong with C-32 (especially fair use), but the amendment would make the bill actually support content creators as MP James Moore claims it does.

    More is needed to protect personal copying and format shifting from digital locks.

  17. As a creator, I have to wonder what DRM/TPM has to do with copyright?

    It is not just consumers that DRM messes with, it is creators. Digital locks can also prevent creators from using the devices, software and media that they have purchased in order to create, because DRM/TPM can prevents the devices, software and media from working the way it is supposed to.

    But then as a creator I wonder why corporations who are clearly not themselves creators are allowed to be rights holders. Must be a radical.

  18. What is really going on is that the minority party leaders are more interested in saving their jobs than leading the country, so the Cons get to pretty much have their way.

    I’m not sure if that’s the problem, either. They were after all considering forming a coalition right before the proroguing started.

  19. Digital lockpicking is about a lot more than just author’s rights. I’m a professional security researcher and I can’t count the number of times I’ve had to stop and ask the question “sure, it’s just math- but is it illegal math?”. That should NEVER be the case.

  20. Actually DRM makes sense in some applications, such as limited distribution (expensive) software. But it doesn’t make sense for mass-market media of any kind.

    In my own letter of concern to MPs I suggested that the bill should include a provision that states unlocking requests for use permitted under the copyright law should not be reasonably refused. This should be backed up by legal action and substantial fines if they are.

    So if I am within my rights, I should be able to request an unlock, which cannot be reasonably refused. If it refused I should be able to take the company to court to enforce my rights (as with other statutory guarantees).

    This way the administrative burden would be so great as to have distributors like Apple, Ingram or Amazon think twice about implementing DRM.

    I do agree with Cory that unlock permissions should default to the copyright owner, but I’m afraid that most publishers would have you sign that right away in your publishing agreement. However as the principal licensor, publishers (as the entity you trust to commercialize your work), and not distributors should have the final say.

  21. If Canadian voters don’t like being ignored/insulted/silenced by their government they should request his dismissal. That’s not why we pay taxes.

  22. (I am also an author)

    Personally, I am against the idea of e-book publishing for for-profit publishing houses. As soon as you release anything in e-format, it then effectively becomes open domain. No way to stop it, don’t bother trying.

    E-books are great for Moby Dick or any other post-copyright work, but the only way the industry can hope to make a profit is in old-fashioned ink-and-paper books.

    1. It only takes a few hours and some inexpensive equipment to digitize a book. Books not sold in e-formats can still be found online, illegally. It would still be legal for libraries to make digital backup copies of their books, and once that happens copying really can’t be prevented.

      Your proposal delays, but does not stop, the problem.

  23. “A copyright proprietor may authorize the public to remove a digital lock in order to gain access and to use of his copyrighted works”

    Cory, unfortunately you are incorrect to claim that this amendment would do what you say. I understand why you believe it would work, but the sad reality is that it would work only for a very tiny segment of the population.

    Suppose Moore included your clause. Suppose Bill C32 passes with it included. Then suppose you decide to exercise your right to grant the public permission to remove “digital locks”. What happens?

    Answer: The public is *still* not allowed to remove the lock.

    Why? Section 41.1 of Bill C-32 forbids anyone from exercising the permission you granted, by banning the tools necessary to remove the lock. How can anyone remove a lock if they’re forbidden from possessing the tools necessary to do it?

    The only people who could take advantage of such a permission grant would be those who are skilled at reverse engineering and software development, and Bill C-32 would prevent them from making something that the average person could use.

  24. If I ever sell something digital that I created, I do not plan to lock it. If ANYONE else has put a digital lock on it, I will help you SMASH that lock and then find those responsible and cut them off at the knees.

    I will not sign a deal with a publisher or distributor who demands authority to lock something I create. The money is not worth it. (And I say this as a working-class dog.) If every author does the same, eventually, publishers won’t have anything to publish.

    Vote out any legislator in any nation who tries to get DRM codified into law. Only buy unlocked content. Speak out against ANYONE who favors DRM on any content. Smash digital locks.

  25. Amen to that!

    I’m an American, and it’s this DMCA foolery that led me to piracy in the first place.

    Of course, any time I pirate anything it’s usually a game with some sort of ridiculous DRM. I used to pirate music and movies, but now that I can afford to, I generally buy physical copies.

    Sorry to say, I don’t buy very many books at all. The local public library has me covered on that front.

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