Canadian Copyright Modernization Bill Draws Criticism Over Digital Lock Provision

Bill C-32, or “An Act to amend the Copyright Act”, was introduced in the House of Commons by industry minister Tony Clement as a means to amend Canada’s Copyright Act including provisions to deal with the changing, and more online, nature of content.

And while many agree that there is a need for Canadian copyright law to catch up to the realities of the digital media landscape, since its first reading in June 2010, the proposed legislation has drawn much criticism given its far-reaching and varied implications, especially the power it gives to “digital locks” on content.

“Bill C-32 includes new rights and protections to enable creators to prosper in a digital environment and tough tools to help rights holders combat piracy,” said Clement at a December media event in Ottawa. At this event, he positioned Bill C-32 as an alternative to other options such as the so-called “iPod tax”, which would impose fees of as much as $75 to the price of mp3 players and smart phones to compensate rights holders.

In effect Bill C-32, if passed, would have far reaching consequences, including the greater use of copyright material in digital form for businesses, educators and libraries in an effort to help ensure the copyright act’s “technological neutrality”. It would also give photographers greater rights over their work, and allow consumers to copy some legitimately acquired material to, for instance, create backups and copy it to other devices for personal use. It also sets caps on statutory damages for non-commercial infringement, which is significant, given a recent Minneapolis court decision that fined a single mother $1.92 million in damages for downloading 22 songs.

The proposed bill would also specify the role of Internet Service Providers in opposing copyright infringement, and make the act of enabling online copyright infringement itself an infringement of copyright. ISPs would have to abide by a “notice-and-notice” scheme, where they have to forward any notice of infringement receive from copyright owners to the accused subscriber.

An alternative approach, “notice-and-takedown” typically requires that ISPs block access to material upon receiving notice of an alleged copyright infringement. Bloc Québécois MP Carole Lavallée said notice-and-notice “does not appear to be enough, since it assigns no responsibility to the ISPs and places the burden of proof (and investigation) on the creators.” The fear about“notice-and-takedown” regime is that it will give rights holders too much power because no court order is required, leading some to fear that ISPs would remove content without adequate warning or proper evidence, potentially stifling the free expression ensured under the Canadian Charter.

There are also groups concerned over the bill’s addition of “education” as a category to qualify for fair dealing, which already includes research, private study, news reporting, criticism, and review as possible reasons for use. Some Canadian textbook publishers, whose sales account for about a fifth of the books bought in Canada, are concerned that the new rules would allow classrooms to use copyrighted materials without the copyright holder’s permission, nor payment.

Notable University of Ottawa law professor Michael Geist has noted in a recent blog post that this would not be the case because “while Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.” In other words, while education is now a fair dealing category, a court has to decide if the educational use was justified based on a common criteria. Just like any other fair use, the court will examine factors of the use such as its purpose, the intent of those involved, the size and scope, and if there were alternatives to fair dealing.

The new Bill would also, crucially, make it illegal to break so-called “digital locks” on content such as media files legitimately purchased on Apple’s iTunes store and unlocked for use on incompatible devices.

Reactions to the government’s attempt to modernize the Copyright Act had been largely positive from stakeholder organizations, however the digital lock provision has been largely criticized. The Association of Universities and Colleges of Canada was optimistic about the bill except for “the overly strict prohibition against circumventing the technical measures used to protect works in digital format.” The AUCC continued, “We fear that this prohibition will diminish users’ rights that are an integral part of the proper balance in copyright law.”

The Canadian Library Association has also expressed concerns over striking the right balance between protecting content and allowing users to fairly access materials in its report, “Protecting the Public Interest in the Digital World“.  Groups fear that by protecting digital locks, corporations can ensure that users pay for their content – even multiple times – by bypassing the other fair use provisions assured by law.

With Canada’s two previous attempts to modernize the Copyright Act in 2006 and 2008 having died, and the country’s reluctance to ratify the 1996 World Intellectual Property Organization treaties for copyrighted works, there is great pressure for the country to push through an amendment to the Copyright Act.

Given the great amount of debate over copyright reforms, however, it is clearly difficult to find a proper balance between rights holders’ desire to digitally lock their content, with the public’s right to access this work in a fair way. As digital media plays a greater role in our lives, the importance of copyright legislation cannot be overstated. It seems to many stakeholders that for all the good of this bill, the digital lock provisions tread perilous territory that could modernize content in Canada for the worse.