Michael Geist Blog

Canadian Government Has Consulted on Copyright but Won't Consider How Its Law Will Be Enforced

Michael Geist — Thu, 09 Feb 2012 08:32:52 +0100

The government imposed time allocation yesterday on Bill C-11, a move that will wrap up second reading debate on the copyright reform bill on Friday and send it to the Bill C-11 committee soon thereafter. While the government's overuse of time allocation is certainly a concern, the debate is not over and several well coordinated tweets of support hardly mask the huge public concern with the bill's digital lock rules and proposed SOPA-style amendments proposed by several copyright lobby groups that has generated tens of thousands of emails to MPs in recent days. As described further below, the opposition stems from rules that will have an impact on the legitimate activities of millions, creating barriers to creators, students, journalists, researchers, and the visually impaired.

During yesterday's debate, several Conservative MPs emphasized that the copyright bill is one of the most consulted pieces of legislation in recent memory. For example, Canadian Heritage Minister James Moore stated "this is my 12th year as a member of Parliament and I can tell her that except for the Liberal government's Bill C-2, the response to 9/11, this legislation will have had more consideration at a stand-alone legislative committee and parliamentary and public consideration with all of the tens of thousands of submissions we received from Canadians in person and in writing and the consultations we did across the country before we drafted the bill."

The government is right when it says there has been wide consultation (a recap of the 2009 copyright consultation here). The question is whether it has taken the public comments into account and conducted a full analysis of the implications of its current proposal. There is reason to believe that it has not.

Last month, the Hill Times ran a policy briefing focused on copyright and new media that featured an interview with Industry Minister Christian Paradis on Bill C-11. The interview included a particularly notable exchange on Conservative MP Lee Richardson's comment that Canadians need not be concerned by the digital lock rules since lawsuits are unlikely to follow:

Q. Liberal MP Geoff Regan said during debate of Bill C-11 that “government members have apparently been saying that it would be okay to break the new law and to circumvent digital locks. The member for Calgary Centre wrote: ‘If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a lawsuit against the consumer, due to legal fees and time involved.’ In other words, he is suggesting not to worry about this, that the law can be broken and nothing would happen, that really we are encouraging consumers to break the law. What does that say about the Conservatives’ position, that they are telling Canadians to break this law that they have not passed yet?” What’s your response?

A. “Like any country, Canada has laws that all citizens must respect and obey. Bill C-11 sets out the exclusive rights of creators, including musicians, with respect to their artistic creations. Enforcing these rights in a given instance, however, is a private legal matter on which the government cannot speculate.”

While governments often refrain from commenting on active litigation that is before the courts, they must surely anticipate the likely effects of their legislative proposals. Indeed, that is precisely what the government is doing when it repeatedly claims (as it did yesterday) that the bill "make Canada an attractive location for creators, innovators and investors."

In order to determine whether the digital lock rules found in Bill C-11 strike the right balance the government must speculate - typically described as anticipate or project - how it will be enforced. The overwhelming opposition to the current draft - which includes the opposition parties, business groups, retailers, artists groups, consumers, education associations, and thousands of Canadians - is based on analysis about how the rules as drafted will be enforced. After months of debate, there is no longer any question that the current draft goes far beyond international requirements. There is no question that the 2009 copyright consultation came out strongly against the approach in the current draft and there is no doubt that the majority of what the Bill C-32 committee heard was similarly critical of the digital lock rules. In recent days, the government has heard from over 50,000 Canadians repeating their concern with the proposed approach.

If Paradis and Canadian Heritage Minister James Moore have not speculated on how their digital lock rules could enforced, perhaps it is because they don't need to. They know - or ought to know - that the following scenarios are some of the possible outcomes:

a Canadian documentary film maker wants to use a video clip found in a commercial DVD within their film. The clip would qualify as fair dealing under the law. They circumvent the digital lock on the DVD in order to use the clip. When the film maker seeks to distribute the film or screen it at a film festival, they require insurance against infringement claims. They are unable to obtain the insurance - and therefore unable to distribute or screen their film - because the circumvention of the DVD lock (which include both access and copy controls) violated Canadian law. U.S. documentary film makers do not face the same restriction.
a television journalist wants to use a clip found on a DVD for a news report. The piece is a controversial one and is reviewed by a lawyer. The lawyer refuses to approve the use of the clip since it similarly requires circumvention of a DVD lock. While news reporting is a fair dealing category, the circumvention would still constitute infringement.
a Canadian media researcher plans a major new project that involves using a wide range of media clips. The researcher completes a full grant proposal to support the research. Before submitting the grant, they are required to sign an ethics document confirming that the research does not violate any Canadian laws. The researcher cannot sign the document and cannot apply for the grant since the circumvention would violate the Bill C-11 digital lock rules.
a B.C. school district opts for open source software for all workstations throughout local schools. The school licenses educational DVDs for classroom purposes. The licence includes a provision that the school will comply will all applicable copyright laws. The school cannot use the DVDs on the workstations without circumventing the DVD locks in violation of the law and licence.
a Canadian computer science researcher wants to circumvent digital locks on several computer programs for encryption research purposes. The researcher does not alert the owner of the programs, since the program owner has threatened other researchers who have tried to do the same thing with a lawsuit. The company follows up with a lawsuit against the Canadian researcher, noting that the researcher did not qualify for the encryption research exception in Bill C-11 by failing to provide advance notice of the circumvention.
a Canadian family receives a package of DVDs from relatives in Japan. The DVDs are region coded and will not play on a Canadian DVD player. They try to find a service that will circumvent the digital lock so they can view the movies. No local service will do it since the law prohibits circumvention services.
a non-profit group representing visually impaired Canadians offers services circumventing digital locks on electronic books to improve access for their members. A leading publisher threatens a lawsuit if the service continues, arguing that service unduly impairs the technological protection measure found on the e-book in violation of Bill C-11.
a privacy group is concerned with the surreptitious capture of personal information by consumer electronics companies. The group creates a software program that will circumvent the digital lock on the products to identify whether personal information is being collected. A leading consumer electronics company sues to block distribution of the product, arguing that the privacy exception does not apply where the service unduly impairs the technological protection measure.

These are not mere hypotheticals. A detailed review of the U.S. DMCA provisions - which are very similar to those found in Canada - has identified numerous examples where the law chilled freedom of expression and scientific research, jeopardized fair use, and impeded competition and innovation. Moreover, many involve situations where the user does not have the "choice" to not purchase a digitally-locked product, but rather find that the digital lock, when coupled with the Bill C-11 approach, impedes legitimate, legal activity. These examples are in addition to the many consumer rights - format shifting, time shifting, backup copies, etc. - which are all inapplicable anytime a digital lock is present.

This is precisely the kind of "speculation" that many groups have conducted in reaching the conclusion that the Bill C-11 digital lock rules do not strike the right balance. The proposed solution from virtually all the critics is not to dismiss legal protection for digital locks, but rather link protection to copyright infringement. That approach would solve all of the above scenarios. If enacted in its current form, the law will have an impact on the legitimate activities of millions and attempts to falsely assuage Canadians that these provisions are mostly innocuous is simply inaccurate.

Global News on C-11 and SOPA

Michael Geist — Thu, 09 Feb 2012 08:27:15 +0100

I participated in a Global News question and answer feature together with Howard Knopf on Bill C-11 and how it will affect Canadians.

Bill C-11 has Disgruntled Canadians Taking Action

Michael Geist — Thu, 09 Feb 2012 08:25:41 +0100

Yahoo's The Right Click reports on the mounting protests from Canadians against the prospect of adding SOPA-style amendments to Bill C-11.

Government Imposes Time Allocation on Bill C-11

Michael Geist — Wed, 08 Feb 2012 07:56:34 +0100

Government House Leader Peter Van Loan announced yesterday that the government is imposing time allocation on the second reading debate on Bill C-11. That means debate on the bill should conclude on Friday and the bill will be sent to committee for further hearings and review. While the government's overuse of time allocation is a concern, sending C-11 to committee places the core issues on the table - will it amend the digital lock rules as so many are asking and/or will it cave to copyright lobby pressure and add SOPA-style amendments to the bill? Now is the time to speak out.

"Bill C-11 Is No SOPA": My Response

Michael Geist — Wed, 08 Feb 2012 06:07:28 +0100

Barry Sookman, lawyer and registered lobbyist for the Canadian Recording Industry Association (now Music Canada), the Motion Pictures Association - Canada, and Canadian Publishers Council, has an op-ed in the National Post claiming that concerns that proposed amendments to Bill C-11 could result in SOPA-style rules in Canada are the stuff of wild claims and hysteria.

The short response is that Sookman's column - along with his clients - downplay the dramatic impact of their proposed amendments. Their proposed amendments to C-11 would radically alter the bill by constraining consumer provisions, heaping greater liability risk on Internet companies, and introducing website blocking and Internet termination to Canada. Several of these provisions are very similar in approach to SOPA in the U.S. and the comparison is both apt and accurate. Moreover, the column leaves the false impression that Bill C-11's digital lock rules are standard when they are widely opposed by numerous stakeholders that Sookman would not dare to call anti-copyright.

There is much more to take issue with in the column and I've done so in paragraph-by-paragraph format below. Sookman's column is posted in italics and my response immediately follows:

While hysterical predictions about copyright reform in Canada have been ratcheted up yet again, this time the claims are so outrageous that they can perhaps best be described as having “jumped the shark.” Canadians are being told that Bill C-11, an act to amend Canada’s outdated copyright law, could be used to shut down popular websites such as YouTube, fundamentally change the Internet, sabotage online freedoms and hog-tie innovators.

Further details on how the proposed amendments to Bill C-11 could be used to target YouTube are available here and discussed in greater detail below. As noted in the post, the language in the bill - if combined with amendments supported by Sookman's clients - could be used to target legitimate sites such as YouTube. Those same proposed amendments call for website blocking and ISP policies that could lead to loss of Internet service.

Activist organizations are urging Canadians to protest what they call the impending Bill C-11 “Internet lockdown.” Making wild claims about the bill that have no basis in reality are groups such as OpenMedia and Avaaz and illicit businesses who sell hacking devices for pirated video games, all urging online protests and all relying on the hyperbolic musings from University of Ottawa academic Michael Geist of what might or possibly or could one day happen. To fully ratchet up the frenzy, these groups are claiming attempts are being made to bring U.S.-style legislation to Canada.

I have written in detail about the SOPA-style rules including website blocking and expansion of liability for sites that could even cover legitimate sites here and here. The concerns about an "Internet lockdown" likely stem from the recording industry's demand for ISP provisions that could lead to termination of Internet services.

These warnings are an attempt to exploit the controversy and unpopular anti-copyright sentiments about the much-misunderstood U.S. legislation in Congress called the Stop Online Piracy Act, and to derail parts of Bill C-11 and proposals to amend it. It doesn’t seem to matter that SOPA and Bill C-11 are entirely different pieces of legislation, with different goals and legislative text. Canadians should examine the facts and see the hysteria for what it is.

SOPA and C-11 are different pieces of legislation as I emphasized in an FAQ on the issue. What matters is the substance of the provisions in C-11 and the proposed changes that would add SOPA-style provisions to the bill.

Bill C-11 contains many provisions that would greatly expand the freedoms of Canadians to copy creative products under new exceptions for format shifting, time shifting and creating mash-ups. ISPs and other online service providers would have new wide exceptions when they act as neutral intermediaries. The bill also proposes new exceptions for broadcasters and to support learning and education. With these new exceptions, Canada’s copyright law would become one of the most user-friendly, if not by far the most user-friendly, in the world. An Internet lockdown? Hardly.

Bill C-11 certainly includes some user-friendly provisions. From the day the bill was introduced, I have argued that there are many aspect of the bill that deserve support. In fact, a review of the transcript of my committee appearance shows I was more supportive of the bill than Sookman, who appeared on the same day. The public has become concerned, however, because Sookman's clients are seeking radical amendments that would scale back even the user-focused provisions. The proposed amendments (this is their document, not mine) includes limitations on the format shifting, time shifting, and user generated content provisions, restrictions on the ISP provisions, and elimination of the broadcaster provision. To suggest that the bill is user-friendly while simultaneously seeking to change those provisions amounts to a classic bait and switch.

Bill C-11 also proposes amendments to provide legal protection for technological protection measures (a.k.a. digital locks or TPMs) that safeguard intellectual property products. These amendments would use internationally accepted measures to support new business models and innovation in digital products and services such as online music and movie streaming services.

This is by far the most contentious aspect of the bill with a digital lock approach that is widely opposed by both major opposition parties, business groups, creator associations, consumer groups, and education associations. The issue is not whether to provide legal protection for digital locks, but rather how to do so in a manner that supports businesses and retains the copyright balance. The Canadian approach goes far beyond international requirements and raises legitimate fears about its impact on consumer property rights, free speech, and privacy. More information on the digital lock rules here.

The SOPA rhetoric has led opponents of legal protection for TPMs to mount further opposition to Bill C-11 by trying to link the anti-copyright sentiments about SOPA to the TPM provisions in Bill C-11, arguing, for example, that they are the “Canadian version of SOPA.” They do this even though there is no connection whatsoever between them.

The argument is that some of the proposed amendments to C-11 are the Canadian version of SOPA. Bill C-11 as it stands is better characterized as the Canadian DMCA, since it largely mirrors the digital lock approach found in that legislation. I discussed this point during my appearance on George Stroumboulopoulos Tonight.

Bill C-11 also proposes an amendment intended to make it an infringement of copyright for a person using the Internet to knowingly enable copyright infringement. The poster children for this legislation are BitTorrent sites such as IsoHunt.com that have been found to facilitate the distribution of files, 95% to 99% of which are infringing. Other targets of the enablement provision are sites such as Megaupload.com, a cyber locker site whose principals were just indicted for criminal copyright infringement. The FBI estimates that the founder, Kim Dotcom, personally made $115,000 a day from his network of sites.

In 2008, Sookman sent isoHunt a cease and desist letter that threatened legal action that would seek up to $20,000 per infringement. That letter was based on current Canadian copyright law. In 2010, Sookman's firm filed a lawsuit against isoHunt, citing a long list of copyright infringing activities based on current law. IsoHunt may be the poster child for the enabler provision, but Sookman is the poster child for how current Canadian law can be used to target these same sites.

This provision is currently worded to apply only to sites that are “designed primarily to enable acts of copyright infringement.” Mr. Geist claims that clarifying the wording to expressly cover services that are “primarily operated to enable infringement or induce infringement” could be used to shut down sites such as YouTube and would stifle innovation. These claims are ridiculous, though not surprising given his historical antipathy to laws designed to protect the creative industries from theft.

The amendments proposed by the recording industry are not "clarifications" of the enabler provision. They represent a significant expansion of the provision that would risk being applied to legitimate sites as well. I provide a full analysis of why the expanded provision could be used to target sites such as YouTube here.

To be clear, SOPA was intended to target foreign rogue websites that would already be illegal under U.S. copyright law if those sites were operated from the U.S. Bill C-11 is not about foreign pirate sites: It is Canada’s attempt to establish rules about what is and isn’t legal in Canada. This is long overdue. The fact that Canada has not updated its copyright laws to deal with the Internet environment has led to our reputation as a haven for internet piracy operations both with our trading partners and pirate operators including Megaupload’s Kim Dotcom.

As noted above, Sookman's legal threats and lawsuits make it clear that he thinks these sites are illegal under current Canadian law. Canada's reputation as a piracy haven is due to the hyperbolic claims of Sookman and his clients. The Business Software Alliance’s annual Global Piracy Report shows Canada among the 15 lowest piracy countries in the world with the Canadian piracy rate at an all-time low. The Canadian Motion Pictures Distributors Association has acknowledged that illegal camcording had largely disappeared from the Canadian market. In 2010, the World Economic Forum found that global executives rank Canadian intellectual property protection ahead of the United States, the United Kingdom, Japan, and most of Europe. Canada is a world leader in digital music sales that even the Canadian Recording Industry Association now characterizes as a commercial opportunity.

The current wave of opposition to the amendments appears to be an opportunist effort to turn the tide on effective copyright reform by leveraging anti-SOPA public opinion. The amendments that are being objected to were first tabled before the Parliamentary Committee examining Bill C-32 in March 2011 and were publically disseminated even by Mr. Geist, well before the SOPA ruckus. At that time there was no public opposition to the proposed amendments as going too far.

The Bill C-32 committee solicited comments and proposed amendments from all Canadians. It received dozens of submissions, but none were posted online or made publicly available. I obtained copies of the submissions last summer after Bill C-32 died on the order paper as part of a request from the committee clerk. There was no public opposition to the proposed amendments because few people were actually aware of the specifics. Moreover, by Sookman's standard, there were no objections to the dozens of suggested changes, the majority of which called for reforms to the digital lock rules.

The new argument that amendments would cover sites such as YouTube is spurious. Bill C-11 provides a series of criteria that a court would need to consider in determining if a site primarily enables infringement. The targeted sites are those: promoted to enable acts of infringement; that know they are being used to enable significant infringements; that have no significant uses other than enabling infringement; that benefit from enabling infringement; and that would be economically unviable but for enabling infringement. The types of sites that would be affected are such sites as IsoHunt and Megaupload, the very wealth-destroying “innovators” the bill targets.

I outlined how the specific criteria could applied to YouTube here. To repeat, contrast the Bill C-11 criteria that a court may consider with Viacom's claims against YouTube, as found in its appellate brief:

Bill C-11	Viacom's Claims
whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement	"YouTube’s founders built an integrated media entertainment business, in the district court’s words, by “welcom[ing] copyright-infringing material being placed on their website.” That copyrighted material was “attractive to users” and “enhanced defendants’ income from advertisements,” enabling YouTube’s founders to sell the business to Google for $1.65 billion."
whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement	"Almost immediately after YouTube came online, YouTube became aware of widespread infringement on its site. And it was the copyrighted videos—not home movies—that people flocked to YouTube to see."
whether the service has significant uses other than to enable acts of copyright infringement	"In their written presentation to Google’s board and senior management, Google’s financial advisors stated that 60 percent of YouTube’s views were “premium” —i.e., copyrighted—and only 10 percent of the premium videos were licensed."
the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so	"Dunton similarly put a stop to efforts to implement software that would notify copyright owners when infringing videos were uploaded. Even though a YouTube engineer said that implementing an automated anti-infringement tool to alert copyright owners when suspected infringing content was uploaded “isn’t hard” and would “take another day or [weekend],” Dunton ordered the engineer to “forget about the email alerts stuff” because “we’re just trying to cover our asses so we don’t get sued.”"
any benefits the person received as a result of enabling the acts of copyright infringement	"Unable to compete with YouTube’s pirated content, in late 2006, Google bought YouTube for $1.65 billion."
the economic viability of the provision of the service if it were not used to enable acts of copyright infringement	"As early as June of 2005, YouTube’s Internet service provider complained that YouTube was violating its user agreement by, YouTube founder Steve Chen believed, “hosting copyrighted content.” But Chen resolved that YouTube was “not about to take down content because our ISP is giving us shit.” And, in emails with the other founders, he later remarked “we need to attract traffic. . . . [T]he only reason why our traffic surged was due to a video of this type”—i.e., copyrighted and unauthorized"

The government has acknowledged that technical amendments to Bill C-11 are required. A healthy debate based on facts can be expected as Parliament’s Special Legislative Committee continues to consider it, and thoughtful debate is always helpful in ensuring a proposed law meets its objectives. But let’s not be fooled by Chicken Little claims. Canadians will all be hurt if the debate continues to be marred by political opportunism and misinformation spread for political purposes.

If there has been political opportunism and misinformation, it has been the consistent mischaracterization of Canadian law by groups such as CRIA and their representatives, which sue on the one hand and lobby for reform on the other. The fact that tens of thousands of Canadians have woken up to Bill C-11 and the radical proposed amendments supported by Sookman's clients is a welcome development, one that will help ensure a full debate with politicians from all parties better aware of where Canadians stand on copyright reform.

Will Canada - China Changes Include a Shift on Intellectual Property?

Michael Geist — Tue, 07 Feb 2012 09:11:27 +0100

Prime Minister Stephen Harper arrived in China today for a high profile visit aimed at improving the Canada- China economic ties. Many have noted the change in tone from the Canadian government on China on rights issues, but the intellectual property story is worth noting here as well. Unlike a U.S. visit, which is likely to place IP issues at the very top of the list, the Canadian visit is unlikely to emphasize the issue. Indeed, Canada would do well to consider shifting its approach to China on intellectual property.

While China-based piracy is unquestionable a concern, Canada has too often used the issue to curry favour with the U.S. at the expense of developing the China relationship. In recent years, our support for the Anti-Counterfeiting Trade Agreement (which deliberately excluded China) and now the Trans Pacific Partnership (which also excludes China) does little to help relations. China could be a strategic ally on global IP issues as both countries face significant external pressure for reform. While compliance with international rules should be the starting point for any dialogue, focusing on the flexibility that exists at international law to address domestic concerns is in both our interests.

The biggest Canadian blunder was the decision to join a U.S. complaint against China at the World Trade Organization in 2007 alleging that China’s domestic laws, border measures, and criminal penalties for intellectual property violations did not comply with its international treaty obligations. The case was a big loss. China was required to amend parts of its copyright law but on the big issues - border measures and IP enforcement - almost all of the contested laws were upheld as valid.

More interesting are the background documents that demonstrate that the Canadian government was unable to muster credible evidence of harm among Canadian companies.

Interestingly, the key player in promoting the case in Canada was the Canadian Recording Industry Association, which appears to have worked closely with the U.S. government to pressure Canadian officials to join the case. A Wikileaks cable notes that "CRIA is leading the charge to get the Government of Canada to join the U.S. case." [the same cable also states that the Entertainment Software Association of Canada "expects not to take a position, because not all of their members are in agreement and because their members' IP is not Canada-based anyway."]

I chronicled the background information in a column in 2009 based on documents obtained under the Access to Information Act. The key findings:

Government records reveal that the U.S. began to pressure Canada to join the case as a full party in 2006, months before the case was formally filed with the WTO. In April 2006, officials at the Department of Foreign Affairs asked the Beijing and Shanghai consular offices for information on intellectual property infringement problems, but neither provided much assistance.

Two months later, with the case making little progress (in May, an RCMP official wondered aloud why Canada was even concerned with enforcement in other countries), Foreign Affairs launched a public consultation on intellectual property enforcement abroad. The consultation was not limited to China, as officials decided to keep it open-ended.

The consultation generated 55 responses, but officials hoping to build a solid case against China were left sorely disappointed. According to a government summary (the consultation results have never been disclosed to the public and were obtained under Access to Information), only one-third of the responses specifically referenced China as a problem. In fact, there were more responses that criticized the United States and the consultation itself.

By the end of the summer, the U.S. had provided Canadian officials with its legal arguments, but Canada was without the evidence it needed to demonstrate harm and thereby participate as a co-complainant in the case. Indeed, on the key issue involving criminal enforcement thresholds, a Department of Justice official noted that Justice and RCMP guidelines used similar thresholds for prosecutorial decisions and that the Chinese could effectively make similar claims against Canada.

Given the weak position, Canadian officials could not support becoming a co-complainant, instead recommending that Canada join as a third party. Anticipating an October 2006 complaint, a press release was prepared but was never issued after the U.S. decided to delay launching the case.

With no complaint in sight, the Canadian Recording Industry Association, which had been the most vocal supporter of Canadian participation, met with senior Foreign Affairs officials in January 2007. Documents prepared by department officials in advance of the meeting noted that CRIA's previous efforts to encourage participation had "lacked specifics." The memo concluded that "we remain of the view that we do not have enough information related to specific Canadian experiences and interests to go forward as a co-complainant" and that "there is still no real concrete information however, of Canadian interests that have been harmed in China."

Over the next few months, Canadian officials grappled with several concerns as a U.S. complaint appeared inevitable. For example, with plans for Canada to participate in the intellectual property case against China but not in a second case on market access, officials feared that the Canadian steel industry would voice its objections.

Further, as Canadian officials drafted a formal letter of notification of its participation, a Geneva-based official asked "do we have statistics to mention about intellectual property owned by Canadians sold in China or something like it to explain why we are interested?" Without solid statistics, the formal notification did not reference the issue, instead merely stating Canada's "concern" with Chinese practices.

The U.S. commenced its action on April 9, 2007. Canada filed its notification as a third party participant two weeks later and within hours, CRIA wrote to Foreign Affairs to offer its assistance on the case. Given the weak position, Canadian officials could not support becoming a co-complainant, instead recommending that Canada join as a third party.

Why ACTA Could Be As Bad As SOPA

Michael Geist — Tue, 07 Feb 2012 08:52:11 +0100

Alexander Furnas explains in the Atlantic why the broader implications of ACTA may make it as bad as SOPA. Furnas notes "while many of the alarmists specific claims are inaccurate, ACTA exposes the systemic danger in how international intellectual property regulation has evolved over the last 20 years."

Czech Republic, Slovakia Suspend ACTA Ratification

Michael Geist — Tue, 07 Feb 2012 08:49:46 +0100

The Czech Republic and Slovakia have joined Poland in suspending ratification of the Anti-Counterfeiting Trade Agreement in response to mounting protests over the agreement.

Much Ado About Panic

Michael Geist — Tue, 07 Feb 2012 08:47:53 +0100

Kris Kotarski writes an opinion piece in the Calgary Herald that calls attention to the lobby panic that leads to legislation like SOPA and ACTA.

Copyright bills protect 'old media'

Michael Geist — Tue, 07 Feb 2012 08:45:44 +0100

The National Post featured an op-ed from Jesse Kline over the weekend that notes "the essential question that must be addressed going forward is whether government regulation is needed to protect industries that have failed to innovate." He says the answer is no.

Crafting Copyright Policy to Create a Competitive Advantage

Michael Geist — Mon, 06 Feb 2012 09:30:23 +0100

Last month, the Hill Times ran a special section on copyright and new media. I contributed an op-ed (Hill Times version, homepage version) that linked copyright reform with the government's emphasis on the Canadian economy. The column noted that one metric for assessing the effectiveness of copyright reform is to consider whether the bill uses the flexibility at international law to establish a competitive advantage when compared to our trading partners. The answer with Bill C-11 - even without the SOPA-style amendments sought by copyright lobby groups - is a mixed bag.

The column begins by discussing the public domain. For copyright watchers, New Year's Day has become public domain day, the day when the term of copyright expires on thousands of works. While Europe celebrated the entry of James Joyce and Virginia Woolf into their public domain, Canadians noted that both authors’ copyright expired here in 1991. The term of copyright in Canada is consistent with the international standard of life of the author plus 50 years, which this year meant that the works of Ernest Hemingway and Carl Jung entered into the public domain, twenty years before they are scheduled to do so in Europe or the United States.

The Trans Pacific Partnership Agreement may place the difference in copyright term in jeopardy (a recent leaked draft indicates that it mandates extending the term of copyright), but for the moment it provides Canada with an important competitive advantage. Canadian businesses, creators and educators can rely on a far larger public domain than competitors in the U.S. and Europe, leading to new creative and commercial opportunities as well as increased access for teachers and students.

While the government has framed Bill C-11 as a policy effort to strike the right copyright balance, a crucial question in light of Prime Minister Stephen Harper’s emphasis on the Canadian economy is whether the bill uses the flexibility at international law to establish a competitive advantage when compared to our trading partners.

The answer is a mixed bag. The bill contains several unique Canadian proposals that should create some legal advantages. For example, the approach to Internet provider liability, known as notice-and-notice, strikes a better balance than the U.S. notice-and-takedown system, making Canada an attractive home for hosting Internet content. Similarly, the user generated content provision, which legalizes non-commercial remix videos, provides legal certainty to intermediaries that host content and those that create it. Rights holders have also pointed to the “enabler provision” as a made-in-Canada approach to assist enforcement efforts, though are now seeking a far broader rule.

Bill C-11’s approach to fair dealing leaves Canada in the mushy middle when it comes to copyright exceptions and limitations. The inclusion of three new exceptions – education, parody, and satire - is an improvement, but it does not go as far as trading partners such as the U.S. and Israel, which have both recognized that fair use lies at the heart of many industries that rely upon a flexible copyright system. The absence of fair use creates a competitive disadvantage for innovative Canadian businesses, who may decide to set up shop elsewhere as a result.

The biggest competitive shortcoming in Bill C-11 is also the most heavily criticized – the digital lock rules. While the criticism from consumer, education, and library groups is noteworthy, the lack of support from business and creators groups is particularly telling.

On the business side, the Business Coalition for Balanced Copyright, which includes leading technology, telecom, and Internet companies, has argued for changes to the rules, as has the Retail Council of Canada, which fears that the changes could hurt consumer confidence in the digital environment.

The Bill C-11 digital lock rules will also place some Canadian creators at a competitive disadvantage. For example, documentary filmmakers in the U.S. rely on a specific exception that permits circumvention of digital locks found on DVDs. By contrast, the Canadian approach does not feature a DVD circumvention exception, creating additional costs and legal uncertainty.

Supporters argue that the digital lock rules will create incentives for new media businesses, yet there is little evidence those rules provide a competitive advantage. Without any digital lock rules, Canadian digital music sales have grown faster than those in the U.S. for the past five consecutive years, Canadian entertainment software businesses have thrived, and a steady stream of new digital businesses such as Netflix and Rdio have entered the Canadian market, suggesting that the current law is not holding back new marketplace entrants or commercial success.

Copyright reform may be driven by a desire to meet international standards, but global copyright law provides all countries with considerable flexibility in implementation. Identifying opportunities to create Canadian copyright competitive advantages would bring commercial and creative benefits and though Bill C-11 features several unique provisions, they are undermined by badly missing the mark on the digital lock rules.

"Surrender Sovereignty Over Copyright Law"

Michael Geist — Mon, 06 Feb 2012 09:19:19 +0100

John Ibbitson discusses the implications for Canada of joining the Trans Pacific Partnership, noting it would likely include surrendering Canadian sovereignty over copyright law. A reminder that the government is currently consulting on the TPP. Details on the agreement and participating here, here, and here.

No Internet Lock-Down

Michael Geist — Mon, 06 Feb 2012 08:22:25 +0100

Open Media has launched a new campaign against copyright reforms that threaten digital rights including the prospect of website blocking, Internet termination, and digital locks.

ACTA Protests Escalate Throughout Europe

Michael Geist — Mon, 06 Feb 2012 08:21:00 +0100

AccessNow is maintaining an excellent map of the protests planned across the continent on February 11th, which has been designated an international day of action against ACTA. The issue has attracted mainstream media attention (eg. New York Times) and questions emerge about the likelihood the treaty will receive the necessary approvals for ratification.

Ubisoft Games Won't Work This Week

Michael Geist — Mon, 06 Feb 2012 08:17:57 +0100

Entertainment software giant Ubisoft, who the Ontario government gave $263 million in 2009 to create 80 jobs per year over 10 years (or $328,750 per job), has advised its customers that its games may not work sometime this week due to its reliance on digital locks and the migration of data servers.