Canada's DMCA, dissected

Michael Geist sez,

As expected, the Canadian government today introduced its own DMCA [ed: the US copyright law that has been in place for 12 years, resulting in tens of thousands of lawsuits against Americans without having any effect on infringement or delivering any new income to artists]. Despite a full national consultation and a public rejection of the old Bill C-61, discouragingly some things have not changed. Canadian Heritage Minister James Moore won the internal fight over Industry Minister Tony Clement for a repeat of C-61's digital lock provisions and against a flexible fair dealing approach and today's bill reflects those policy victories.

However, over the past month, Clement made steady in-roads in trying to restore some balance in the bill and achieved some wins. The bill contains some important extensions of fair dealing, including new exceptions for parody, satire, and (most notably) education. It also contains more sensible time shifting and format shifting provisions that still feature restrictions (they do not apply where there is a digital lock) but are more technology neutral than the C-61 model. There is also a "YouTube exception" that grants Canadians the right to create remixed user generated content for non-commercial purposes under certain circumstances. While still not as good as a flexible fair dealing provision, the compromise is a pretty good one. Throw in notice-and-notice for Internet providers, backup copying, and some important changes to the statutory damages regime for non-commercial infringement and there are some provisions worth fighting to keep.

Yet all the attempts at balance come with a giant caveat that has huge implications for millions of Canadians. The foundational principle of the new bill remains that any time a digital lock is used – whether on books, movies, music, or electronic devices – the lock trumps virtually all other rights. In other words, in the battle between two sets of property rights – those of the intellectual property rights holder and those of the consumer who has purchased the tangible or intangible property – the IP rights holder always wins. This represents market intervention for a particular business model by a government supposedly committed to the free market and it means that the existing fair dealing rights (including research, private study, news reporting, criticism, and review) and the proposed new rights (parody, satire, education, time shifting, format shifting, backup copies) all cease to function effectively so long as the rights holder places a digital lock on their content or device. Moreover, the digital lock approach is not limited to fair dealing – library provisions again include a requirement for digital copies to self-destruct within five days and distance learning teaching provisions require the destruction of materials 30 days after the course concludes.

The digital lock provisions are by far the biggest flaw in the bill, rules that some will argue renders it beyond repair. I disagree. The flaw must be fixed, but there is much to support within the proposal. There will undoubtedly be attacks on the fair dealing reforms and pressure to repeal them, along with the U.S. and the copyright lobby demanding that their digital lock provisions be left untouched. If Canadians stay quiet, both are distinct possibilities. If they speak out, perhaps a fixable bill can be fixed. I'm relaunching Speak Out on Copyright.ca to focus on this bill and encouraging Canadians to join the Fair Copyright for Canada Facebook group(to get active) and the Fair Copyright for Canada Facebook Page (to stay updated).