In recent days there has been massive new interest in Canadian
copyright reform as thousands of people write to their MPs to express
concern about the prospect of adding SOPA-style rules to Bill C-11
(there are even plans for
public protests
beginning to emerge). The interest has resulted in some
completely unacceptable threats
and confusion -
some claiming that the Canadian bill will be passed within 14 days (not
true) and others stating that proposed SOPA-style changes are nothing
more than technical changes to the bill (also not true). Even the
mainstream media is getting into the mix, with the Financial Post's
Terrance Corcoran
offering
his "expert" legal opinion that CRIA's lawyers are likely to lose their
lawsuit
against isoHunt.
Given the
importance of Canadians speaking out accurately on Bill C-11, ACTA, and
the TPP, I've posted ten key questions and answers to sort through the
claims. The first eight questions address the links between Bill C-11
and SOPA as well as proposed changes to the current copyright law. The
final two question focus on ACTA and the TPP.
1. What, if
anything, are the links between current Bill C-11 and SOPA?
Bill C-11, the Canadian copyright reform bill, is the latest iteration
of several attempts at Canadian copyright reform. There is a lot to
like about the bill: it includes an expansion of the fair dealing
provision, new consumer rights for format shifting, time shifting, and
backup copies, a provision facilitating user generated content, a new
distinction between commercial and non-commercial infringement, as well
as a fair and effective approach to Internet provider liability. Some
of these provisions are not perfect (flexible fair dealing would be
better than the C-11 model, eliminating statutory damages for
non-commercial infringement is needed), but the bill is far better than
prior Conservative copyright bills.
As I have stated since its introduction, Bill C-11 is
flawed but
fixable.
The major problem with the bill remains the
digital
lock provisions,
which eviscerate many of the new consumer rights and undermine fair
dealing. The approach has been
widely
criticized
by dozens of groups representing business, creators, consumers,
educators, and librarians. The proponents of the digital lock rules are
chiefly U.S.-backed lobby groups, the same groups that were behind SOPA
in the U.S. In fact, there is
considerable
evidence
that the Canadian approach is a direct result of ongoing U.S. pressure
on the issue. Had SOPA passed, it included a provision requiring
further linkages between U.S. trade pressure and intellectual property
policy.
2. Could Bill C-11
become more like SOPA?
Yes. Last week, I noted that music and entertainment software lobby
groups have
proposed
SOPA-style changes to C-11.
For example, the industry wants language to similar to that found in
SOPA on blocking access to websites, demanding new provisions that
would "permit a court to make an order blocking a pirate site such as
The Pirate Bay to protect the Canadian marketplace from foreign pirate
sites." Section 102 of SOPA also envisioned blocking of websites.
Several lobby groups also want language similar to that found in the
infamous Section 103 of SOPA. That provision, which spoke of sites
"primarily designed or operated for the purpose of...offering goods or
services in a manner that engages in, enables, or facilitates"
infringement, raised fears that it could be used to shut down
mainstream sites such as Youtube.
According to a
music
industry document,
Bill C-11's "enabler provision" should be expanded to include "services
that are primarily operated to enable infringement or which induce
infringement." Those demands are echoed by the Entertainment Software
Association of Canada, which called on the government to "amend the
enabling provision to ensure that it applies to services that are
"designed or operated" primarily to enable acts of infringement." Both
groups also want statutory damages added to the enabler provision so
that liability can run into the millions of dollars for a target
website.
Bill C-11 committee member Dean Del Mastro, a Conservative MP,
specifically referenced the enabler provision in a
recent
interview
about potential changes and there are rumours that the U.S. government
is pushing the Canadian government to toughen the enabler provision
(while keeping the digital lock rules unchanged).
3. Are there plans
to add "three strikes and you're out" Internet termination rules to
Bill C-11?
The government has indicated that it does not want to add Internet
termination (often called graduated response) to the bill.
However,
the music industry is demanding that Internet providers be required to
adopt a termination policy for subscribers that are alleged to be
repeat infringers. According to the music industry document:
To incent service providers to
cooperate in stemming piracy by requiring them to adopt and reasonably
implement a policy to prevent the use of their services by repeat
infringers and by conditioning the availability of service provider
exceptions on this being done.
This demand would move Canada toward the graduated response policy that
could result in loss of Internet service for Internet users. There is
no indication in the music industry document of due process or even
proof of infringement.
4. Are these
SOPA-style changes simply technical amendments?
No. The expansion of the enabler provision to include SOPA-style rules
could create new legal risk for legitimate websites. For example,
last
week I illustrated
how the rules
could be used to target online video sites such as Youtube.
If those proposed changes are adopted, it could create a huge chill in
the investment and technology community in Canada. Online video sites,
cloud computing sites, and other online services may look at the Bill
C-11 and fear that even a lawsuit could create massive costs, scare
away investors, and stifle new innovation.
5. Can Bill C-11 be
fixed?
I believe the answer is yes. First, the SOPA-style demands,
including website blocking, Internet termination, and expanded
liability, must be rejected. Second, the digital lock provisions
must
be fixed by linking circumvention of digital locks to copyright
infringement. Such an approach enjoys broad support as it would provide
legal protection for
digital locks, be consistent with the WIPO Internet treaties, and
follow the model of trading partners such as New Zealand and
Switzerland.
6. Aren't these
digital lock rules needed to help the music industry?
No. As the industry itself now
promotes,
Canada is a leader when it comes to online music sales. Canada is the
6th largest market for recorded music in the world, ranking 6th for
digital sales and 7th for physical sales. Digital sales have grown
faster in Canada than the U.S. for the past five consecutive years.
There are wide range of online music services in Canada, all created
without restrictive digital lock rules. I delivered a full
talk on the issue titled
Why Copyright
Reform Is Not the Cure for What Ails the Music Industry last year
at the Nova Scotia Music Week conference (
talk sources).
7. Aren't these
digital lock rules needed to help the entertainment software industry?
No. The Entertainment Software Association of Canada has been one of
the most outspoken proponents of restrictive digital lock rules. Yet
its own evidence demonstrates why balanced digital lock rules
do not put
the industry at risk. In 2007, it released a report called
Entertainment
Software: The Industry in Canada,
which estimated that there were approximately 9,000 video game jobs in
Canada. Four years later, the industry has grown to 16,000 jobs, yet
Canada has had no digital lock legislation during that period. In other
words, without any changes to Canadian copyright law, the industry has
emerged as a major success story.
Not only is the claim unsupported by years of experience, but when the
industry was recently asked about perceived risks, copyright concerns
fell well down on the list. Last year, the ESAC commissioned a
study
by SECOR Consulting
that surveyed the industry and asked for the top three risks faced by
the Canadian video game industry over the next two to five years.
Copyright ranked far behind many other concerns.
8. Aren't these digital
lock rules needed to be compliant with international law?
No. While digital lock rules are needed to comply with the WIPO
Internet treaties (which Canada has signed but not ratified), the
treaties offer
considerable
flexibility in their implementation. I addressed the issue in great
detail in a
peer-reviewed
article on the topic. The article is part of a larger book on Bill
C-32 (the predecessor to C-11) called
From
"Radical Extremism" to "Balanced Copyright": Canadian Copyright and the
Digital Agenda. It is available as a Creative Commons licensed
download.
9. Where does Canada
stand on the Anti-Counterfeiting Trade Agreement (ACTA)?
Canada
signed
ACTA
in October of last year. At the moment, ratification of ACTA will
require legislative change in Canada. Some of those changes are
contained in Bill C-11, but not all. A second intellectual property
enforcement bill is expected to be introduced in Canada later this year
that will provide new powers to customs officials as well as other
measures. The Department of Foreign Affairs is presently conducting an
open
consultation on ACTA.
Email your comments
to the department or write Consultations and Liaison Division (BSL),
Anti-Counterfeiting Trade Agreement (ACTA), Foreign Affairs and
International Trade Canada, Lester B. Pearson Building, 125 Sussex
Drive, Ottawa, Ontario, K1A 0G2.
10. Where does
Canada stand on the Trans Pacific Partnership Agreement (TPP)?
The Canadian government filed
notice
of a public consultation
on December 31, 2011 on the possible Canadian entry into the Trans
Pacific Partnership negotiations, trade talks that could result in an
extension in the term of copyright that would mean nothing new would
enter the Canadian public domain until 2032 or beyond. The TPP covers a
wide range of issues, but its intellectual property rules as
contemplated by leaked U.S. drafts would extend the term of copyright,
require even stricter digital lock rules, restrict trade in parallel
imports, and increase various infringement penalties. I've written
about the effect in Canada
here,
here, and
here.
The major intellectual property lobby groups want to keep Canada out of
the deal until we cave to the current U.S. copyright demands. The IIPA,
which represents the major movie, music, and software lobby
associations, points to copyright reform and new border measures as
evidence of the need for Canadian reforms and states "we urge the U.S.
government to use Canadaâs expression of interest in the TPP
negotiations as an opportunity to resolve these longstanding concerns
about IPR standards and enforcement." These are the same groups that
supported SOPA in the U.S.
The consultation is open until February 14, 2012. All it takes a single
email with your name, address, and comments on the issue. The email can
be sent to consultations@ international.gc.ca. Alternatively,
submissions can be sent by fax (613-944-3489) or mail (Trade
Negotiations Consultations (TPP), Foreign Affairs and International
Trade Canada, Trade Policy and Negotiations Division II (TPW), Lester
B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario K1A 0G2).