Canadian DMCA is Here

Industry Minister Jim Prentice introduced his new copyright legislation today and it is not good.

As expected, the Canadian DMCA is big, complicated, and a close model of the U.S. Digital Millennium Copyright Act (Industry Canada provides a large number of fact sheets here).  I’ll have much more to say once I’ve had a careful read, but these are my five key points to take away:

1.   As expected, Prentice has provided a series of attention-grabbing provisions to consumers including time shifting, private copying of music (transferring a song to your iPod), and format shifting (changing format from analog to digital).  These are good provisions that did not exist in the delayed December bill.  However, check the fine print since the rules are subject to a host of strict limitations and, more importantly, undermined by the digital lock provisions.  The effect of the digital lock provisions is to render these rights virtually meaningless in the digital environment because anything that is locked down (ie. copy-controlled CD, no-copy mandate on a digital television broadcast) cannot be copied. As for every day activities like transferring a DVD to your iPod – those are infringing too. Indeed, the law makes it an infringement to circumvent the locks for these purposes.

2.   The digital lock provisions are worse than the DMCA.  Yes – worse.  The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent.  While Prentice could have adopted a more balanced approach (as New Zealand and Canada’s Bill C-60 did), the effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM’d book, or even unlocking a cellphone.

While that is the similar to the U.S. law, the exceptions are worse.  The Canadian law includes a few limited exceptions for privacy, encryption research, interoperable computer programs, people with sight disabilities, and security, yet Canadians can’t actually use these exceptions since the tools needed to pick the digital lock in order to protect their privacy are banned.  In other words, check the fine print again – you can protect your privacy but the tools to do so are now illegal.  Dig deeper and it gets worse.  Under the U.S. law, there is mandatory review process every three years to identify new exceptions.  Under the Canadian law, its up to the government to introduce new exceptions if it thinks it is needed. Overall, these anti-circumvention provisions go far beyond what is needed to comply with the WIPO Internet treaties and represents an astonishing abdication of the principles of copyright balance that have guided Canadian policy for many years.

3.   The other headline grabber is the $500 fine for private use infringement.  This will be heralded as a reasonable compromise, but check the fine print.  Canadian law already allows a court to order damages below $500 per infringement, so the change may not be as dramatic as expected (though $500 in damages is the maximum for private use infringement).  Moreover, it is already arguably legal to download sound recordings in Canada.  Under the proposal, there are exceptions for uploading or posting music online (ie. making available) and even the suggestion that posting a copyright-protected work to YouTube could result in the larger $20,000 per infringement damage award.

4.   The ISP provisions are precisely as expected with a statutory notice-and-notice system.  However, check the fine print.  The role of the ISP may be undermined by the Anti-Counterfeiting Trade Agreement, which the government trumpets in its press release.

5.   The education community received several provisions that are largely gutted by the fine print.  For example, library materials can be distributed in electronic form, but must not extend beyond five days.  In other words, it turns librarians into locksmiths.  Moreover, there is an Internet exception that educators wanted but it does not apply for any works that are either password protected or include a notification that they cannot be used.  In other words, online materials that are available under a Creative Commons license are fair game (as they are already), but most everything else is still potentially subject to a restriction.  This was precisely what many feared – rather than pursuing the far superior expansion of fair dealing, the education community got a provision that does little to enhance classroom learning.

I’ll have more to say soon, but the takeaway is that the DMCA provisions are worse than the U.S. and the consumer exceptions riddled with limitations as the government promotes a strategy of locking down content and launching lawsuits against Internet users.

Michael Geist – The Canadian DMCA: Check the Fine Print

This legislation must be stopped. There is a new letter to send. This one is sent to your MP, Industry Minister Jim Prentice and Heritage Minister Josée Verner. To send it click here.

Publication?

I have recently been in contact with a member of Dr. Neil Brown’s staff, Rob, in regards to using some of my photos in one of their publications. Who is Dr. Neil Brown you ask. He is the MLA for Calgary-Nose Hill. They contacted me through flickr. If this works out, it would be my first real publication. I have photos in other things, like the Schmap Calgary map thing and other online publications, but this would be the first real printed publication. I’m pretty excited.

I have to phone Rob again tomorrow to work out all the details, but other than that it should be good to go. I’ll keep you guys updated.

Canadian Copyright Reform

It looks like Industry Minister Jim Prentice will introduce his new copyright reform bill tomorrow.

Multiple sources advise that Industry Minister Jim Prentice’s current plan is to introduce the Canadian DMCA this week, likely on Wednesday.  While things could change, it would appear that Prentice’s communication strategy is to do as little communicating as possible. Plans for a possible press conference have apparently been put on hold given concerns that the press might actually ask questions and Prentice has even entertained thoughts of shuffling the bill quickly to a committee for summer hearings so that he would not have to deal with the issue all summer long. The Minister will also head for Japan and South Korea late the following week as part of the OECD Future of the Internet Economy conference, so out-of-sight, out-of-mind.

Michael Geist – The Unoffical Canadian DMCA Background Document

I recommend that you read his post in its entirety. He lists what he expects to be in the bill and things that Mr. Prentice likely won’t talk about. Canada needs balanced copyright reform and adopting a US-style DMCA is not the answer. From what I’ve heard and read about the bill, it is not looking good. We need to act now in order to prevent this bill from becoming law and to give Canada a chance at fair and balanced copyright reform. I urge you to write to your MP, the Prime Minister, Industry Minister Jim Prentice, and Heritage Minister Josée Verner. One way of doing this is to use this pre-written letter and use the form on that page to send it via email. I would also recommend printing it out and mailing it. Letters mailed to Parliament/MPs/Ministers do not require postage. Simply print it off, put it in an envelope, address it and drop it in the mail box.

If you don’t know who your MP is, you can find out by clicking here and entering your postal code. Please send a letter. We were able to stop Mr. Prentice’s bill in December and we can do it again.