@TonyClement_MP @mpjamesmoore To preserve C32’s fair dealing gains, protect circumventing DRM when for lawful uses #fixC32
Speakoutoncopyright.ca now includes a concise, Unofficial User’s Guide to the Copyright Modernization Act, a.k.a. Bill C32. It also includes a handy guide for Taking Action.
That guide encourages you not to e-mail a form letter, but to mail your own comments to the cabinet ministers and MPs concerned (the guide helpfully summarizes each party’s approach, too).
What’s interesting in this latest bill is its glimmer of support for fair dealing. There’s a “Youtube” clause to permit noncommercial media remixing as fair dealing; there’s a $5K cap on damages for individual infringement (which is actually a win, given how the RIAA and MPAA have gone after individuals like Jammie Thomas in the US). Maybe Canadians are actually being heard on this issue: isn’t it pretty to think so?1 As Michael Geist told the Congress of Learned Societies in Montreal on Monday, this is a bill to fix, not one to kill. New protections for noncommercial copying and other forms of fair dealing are a good start. But the bill’s strong protection for “digital locks” like DRM would trump fair dealing when it comes to almost any DRM-protected content or hardware (they’ve made an exception for phones). For example, you couldn’t make your newly authorized Youtube video legally if it meant working around a DVD’s DRM to rip a clip. Digital lock provisions would always trump fair dealing provisions.
Yet the best overall fix may turn out to be dead simple.
Protect digital-lock circumvention when it’s done for lawful purposes. According to Geist, what Bill C32 needs most is just a single provision confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes (that is, for private, non-commercial uses). This provision, Geist says, “would allow Canada to implement the World Intellectual Property Organization’s Internet treaties, provide legal protection for digital locks, and preserve the copyright balance.”2
Here are three other points I think worth bringing to the C32 debate. (Any other tweet- or postcard-size points you might make to #fixC32 would be welcome comment on this post.)
Make the fair dealing provisions broader and more flexible. Under Bill C32, they are still restrictive for educators, and they still fall short of US fair use norms (and that’s after over a decade with the DMCA). Given the polarized digital trends in higher educationtowards open access on one hand, and device-tethered e-books, on the otherBill C32’s “blanket provision against all circumvention … will lock down a vast amount of digital material, effectively preventing its use for research, education and innovation and curtailing the user rights of Canadians,” as the Canadian Association of University Teachers states in its response to the bill.
Extend the private copying levy to digital devices. If you want to get radical, support Charlie Angus’ proposal (from his now-dead private member’s bill) for extending the private copying levy already placed on blank storage media to digital devices (like iPods and laptops), which would address the concerns of creator organizations like ACTRA that C32 is insufficiently attentive to creators’ compensation.
Get Canada out of ACTA. No, not ACTRA: “ACTA,” or the Anti-Counterfeiting Trade Agreement, is a global agreement being secretively negotiated by several countries, but led by the US Trade Department and US Big Media lobbies. ACTA isn’t really about trade or counterfeiting, it’s about copyright, and it would effectively impose a punitive DMCA model of copyright enforcement on all participating nations. At least not all nations are participating. But Canada is. And by agreeing to ACTA, Canada would forfeit many of the important gains and compromises already in Bill C32. And even if Bill C32 is amended to permit digital lock-picking when lawful, if that were to be prohibited by ACTA (and all reports show it would be) then any such amendment would be moot. So Canada needs either to insist on provisions for lawful DRM circumvention under ACTA, or walk away from it.
So take a coffee break to read up on what’s at stake, then find another five minutes to send a short letter to the government, lauding what’s likeable in Bill C32, and suggesting how you’d fix it. Keep it short, clear, and hand-written.3
And while you’re at it, maybe tack on a P.S. that Canada should not only get out of ACTA, but also CETA as well …
1. Note to Hemingway’s estate: call off your lawyers. I’m claiming satirical fair dealing.
2. One close reading of C32 argues that “lawful DRM-breaking” may already be protected: “Section 41.1(3) of the revised Act provides that statutory damages are not available to an owner who sues an individual for ‘breaking’ a digital lock when that breaking was done only for private purposes.” But reducing damages for private digital lock-breaking is not the same as prohibiting damages for it, and the numerous research- and teaching-related reasons that would justify circumvention by educational institutions remain criminalized. According to Geist, interpreting C32 like this cultivates a disrespect for copyright (and, I’d add, the law in general), whereas “making a sensible law” (i.e. one with clear personal and pedagogical provisions for lawful DRM circumvention) would build respect for copyright in law and in principle. (It’s worth reiterating that the principle of copyright has never been in question on this blog, only the increasingly exploitative character of its regulation. Thanks to Prof. Geist for making time to correspond on this question.)
3. Anyone remember handwriting? Now there was a DRM-free medium!