Copyright bill stirs the pot of intellectual property controversy

A new copyright legislation is set to hit the House of Commons as soon as next week.

The new bill will be tabled soon as confirmed by the government. It will aim to provide a much-needed update to Canadian copyright for the digital age, but Heritage Minister James Moore has been tight-lipped on what the bill will contain. However, leaks have indicated that it will put forward tough anti-circumvention provisions – rules that will prevent people from breaking the digital locks placed on electronic devices and content.

You probably know these locks as digital rights management (DRM), or possibly technology protection measures (TPM). Debate over these locks has been heated since 2005, when the previous Liberal government attempted to overhaul the copyright with Bill C-60. That bill died following the dissolution of Parliament in the fall of 2005, but kicked off criticism that the government was favouring copyright holders over consumers by making it illegal to crack DRM.

In 2008, the Conservative government proposed Bill C-61 (which also died when Parliament was prorogued). It reignited the argument by proposing similar provisions. Critics said the anti-circumvention rules would criminalize the ordinary behaviour of millions of Canadians, by rendering the copying a CD onto an iPod illegal, or even recording a television program for later viewing.

Russell McOrmond, policy co-ordinator for the Canadian Association for Open Source, is firmly against the bill. In a recent opinion piece in IT World, he wrote, “It is obvious that if I own something..  it is me and not someone else that maintains the keys for any locks applied to what I own. Non-owner locks on technology are based on the idea that the manufacturer of the device, not the owner, should control who has keys to the locks they have applied.”

But it’s a matter of ownership versus renting – and when it comes to intellectual property, it’s not quite so simple.

“It’s a bargain [between the buyer and seller]. It’s saying, ‘I’ll give it to you to use in all of these ways, but I’m not giving it to you to start using in other ways because there is a detrimental economic effect,'” says Barry Sookman, an IP lawyer at McCarthy Tétrault in Toronto. “It’s hard for people to say their property rights are being violated when the property they’re buying has those exact set of characteristics.”

 David Kent, an IP lawyer at McMillan in Toronto, says that while technically every copy made of a piece of digital content is potentially a lost sale for the copyright holder, in reality there must be some leeway. “There is an argument to be made that part of the commercial deal between the public and the originators is that you can make a second copy for yourself so long as you’re not doing the originator out of a sale,” he says. “There you’re probably not screwing up the economics of the business.”

A comparable compromise was executed through a private copying levy, a small tax on blank media (CDs, DVDs) in 1997. It effectively legalized copying and has worked well, but it needs updating, Kent says. In March, NDP MP Charlie Angus proposed that the levy be extended to devices such as iPods and computers. The government immediately dismissed the idea while copyright experts said it could create new problems.  “The economics are horrible on [Angus’s plan],” Kent says.

Others believe more than updating is required, however – in fact, they think things are actually getting worse. McOrmond says of Apple’s recently released iPad, which gives the company tight control over what consumers can and can’t put on it, “The general public doesn’t think of the iPad as a device where someone other than the owner has the keys to it. They haven’t thought, ‘Why is this allowed?’ They just think, ‘Oh, it’s a cool device.'” He believes it should be illegal.

Seth Schoen, a senior staff technologist with the Electronic Frontier Foundation in San Francisco, expressed concern for the amount of control device makers such as Amazon and Apple are inserting into their products through DRM. For example, in 2009, Amazon remotely deleted several e-books (ironically including George Orwell’s 1984) from the Kindle devices of customers who had bought them. Amazon stated it deleted the books because someone who did not have the rights had uploaded them to its store, but customers were angry nonetheless.

DRM critics fear that anti-circumvention rules will lead to a dystopian future. They imagine a system where the device manufacturers get to decide which content does and doesn’t work on their devices. 

Time will tell.