Michael Geist Blog

What the Govt Rejected in the C-11 Amendments: Access for the Blind, Cloud-Based Services & More

Michael Geist — Wed, 16 May 2012 08:08:09 +0100

Bill C-11, the copyright reform bill, passed the report stage yesterday, leaving only a third reading debate and vote before the bill heads to the House of Commons. While many good elements in the bill remain intact, it is worth noting what the Conservatives voted against by opposing every amendment proposed by the NDP, Liberals, Green Party, and Bloc at committee and at report stage. Proposed amendments that were defeated included:

link circumvention to copyright infringement so that Canadians could continue to exercise their fair dealing rights in the digital environment
address a flaw in digital lock exception on perceptual disabilities that may restrict the ability of blind to circumvent a digital lock to access a work
create a new notice requirement for the inclusion of digital locks
create a new qualified circumventer system, similar to that found in New Zealand, so that those Canadians without the technical ability to circuvent a digital lock in permitted circumstances can do so
add a new digital lock exception to protect minors
remove the digital lock restrictions for time shifting and backup copies
create a system to allow the Copyright Board to create new digital lock exceptions
amend the network services provision so that providers can offer network-based PVRs and other cloud computing services. As it currently stands, the bill may create legal risks for such cloud-based storage services.
change the restriction on digital interlibrary loans by requiring a notification of restrictions (including an ability to use a work for more than five business days) rather than the need to take measures to stop restricted activity
remove the 30 day destruction requirement on lessons for teachers and students that use that new exception

None of these amendments were radical or undermined the goals of the legislation. There is much to like in Bill C-11 but the defeat of provisions designed to improve access for the blind, preserve fair dealing, enhance education, and open the door to innovative services hardly seems like something to celebrate.

UBC Will Not Sign the AUCC - Access Copyright Deal

Michael Geist — Wed, 16 May 2012 08:05:33 +0100

UBC, one of Canada's largest universities, has announced that it will not sign the Access Copyright model licence. The decision is particularly notable since UBC President Stephen Toope is also the chair of AUCC, which negotiated the model licence. UBC says it is "taking the bolder, more principled and sustainable option" and points to three main reasons for the decision:

UBC has existing license agreements with over 950 publishers providing access to online resources. UBC’s decision positions us towards a sustainable future and full adoption of digital learning and teaching technologies.
UBC remains concerned about the affordability of higher education, which is borne in part by taxpayers and in part by students. The measures taken by UBC since its 2011 decision have positioned it well and enable UBC’s students and faculty to access teaching and research materials more cost-effectively than if UBC were to enter into a license based on the model.
The AUCC model license only permits copying of up to 10% of a work (20% in case of course packs) and only with respect to a narrow repertoire that is almost exclusively print-based. Therefore, the license would not be cost-effective for UBC and does not absolve faculty members and students from the need to respect the legal rights of copyright owners.

UBC deserves great credit for taking a principled stand at a time when the AUCC has abdicated its leadership on the copyright issue and many other universities seem likely to sign the agreement since the costs can simply be pased along to students. While there are obviously risks, there is also the opportunity for great rewards as UBC may position itself as a national leader at a time that other universities are content to take a major step backward.

More Opposition to the Access Copyright Model Licence

Michael Geist — Wed, 16 May 2012 07:52:20 +0100

In addition to the UBC decision to not sign the Access Copyright model licence, the Manitoba Library Association has added its voice in opposition to the agreement. Moreover, the Trent University Senate has adopted a motion stating "that the Senate, in solidarity with the CAUT, the CFS and dozens of other constituent and governing bodies, reject this unfair and unreasonable AUCC-Access Copyright 'model license' and instead affirm and abide by 'the right to fair and reasonable access to copyrighted works for educational purposes.'"

Is Lawful Access Dead? Not Yet.

Michael Geist — Wed, 16 May 2012 07:48:52 +0100

The Globe's John Ibbitson has a column that confirms much of the private speculation about lawful access, namely that the bill is going nowhere so long as Vic Toews remains public safety minister. This is consistent with the prevailing view that Toews is so closely associated with the worst of the bill - warrantless disclosure of subscriber information, new surveillance technologies, and divisive us vs. them framing - that a change will be needed for the bill to come back. Ibbitson focuses on the likelihood of Parliament proroging before the bill is revamped and returns, yet speculating on those issues is always difficult. What is certain is that lawful access will return at some point, meaning Canadians will need to remain vigilant to ensure that any future bill addresses the myriad of concerns associated with Bill C-30.

Del Mastro on Format Shifting

Michael Geist — Wed, 16 May 2012 07:46:09 +0100

Conservative MP Dean Del Mastro offers up one of the oddest copyright analogies during the C-11 debate, likening format shifting to socks and shoes.

Wall Street Journal's MarketWatch on Canada's Penske File

Michael Geist — Wed, 16 May 2012 07:43:28 +0100

The Wall Streeet Journal's MarketWatch picks up on Canada's missing digital economy strategy, using the Penske File framing to discuss the failure of Industry Minister Christian Paradis to lead on the file.

Government To Impose Time Allocation on Copyright Debate

Michael Geist — Tue, 15 May 2012 08:01:52 +0100

The government yesterday gave notice of time allocation on the Bill C-11 debate, which will cut short the debate over the copyright bill. The move does not come as a surprise, given the willingness to use time allocation for other bills and the Conservatives' consistent position that it will not further amend the bill. As I've stated repeatedly, there is much to like in Bill C-11 including expanded fair dealing, new consumer exceptions, new rights for user generated content, the notice-and-notice approach for ISPs, and the a cap on non-commercial statutory damages (this came up during the House of Commons debate as Conservative MP Chris Alexander quoted my comment on some of the balanced provisions but omitted the criticism on digital locks). Moreover, the decision to reject demands for website blocking, notice-and-takedown, an iPod tax, and disclosure of subscriber information suggest that the bill could have been considerably worse.

However, the decision to leave the digital lock rules unchanged remains the bill's biggest flaw and given the widespread opposition to the approach makes a mockery of Canadian Heritage Minister James Moore's insistence that the bill reflects the public support. Yesterday, Moore defended the approach:

With regard to digital locks, the legislation would maintain fidelity within the spirit and intent of the WIPO treaties, which is that the government does not impose digital locks or TPMs on anything. We are respecting the rights of those who wish to protect their own creations with digital measures if they choose to. This is about empowering citizens, creators, those who invest in software, video games, movies and television shows. This is about protecting their right to protect themselves from those who would steal from them. This is not about the government imposing anything. This is about respecting international law, respecting WIPO and respecting those who wish to protect themselves from those who would steal from them. It is a pretty simple concept.

Meanwhile, Conservative MP Robert Goguen argued that "if we do not have locks, it will wipe out the industry."

Both comments demand a response. As Moore surely knows, the Bill C-11 approach on digital locks goes far beyond the requirements needed to respect international law or comply with WIPO. There are dozens of countries that have implemented digital lock rules with more flexibility than the Canadian approach. Further, a review of the creation of the WIPO Internet treaties demonstrates that a more flexible approach is wholly consistent with their spirit and intent. As for claims that no locks will wipe out the industry, note that Canadian digital music sales have now grown faster than U.S. sales for the past six consecutive years, all without digital lock legislation.

The reality is that the digital lock rules were overwhelmingly opposed as part of the 2009 national copyright consultation and generated strong opposition from opposition political parties, business groups, creator associations, consumer groups, and education representatives. During the committee process both the NDP and Liberals proposed numerous amendments to the digital lock rules, all of which were defeated. Yesterday, the Green Party's Elizabeth May proposed further amendments (May cited me in a tweet on the proposed amendments, but my help on the digital lock rules was largely limited to pointing to my public submission to the Bill C-32 committee). Those amendments are also likely to be defeated, creating yet one more lost opportunity to amend a bill that seems destined to pass in much the same form as when it was introduced in June 2010.

The Canadian Perspective on the GSU Fair Use Case

Michael Geist — Tue, 15 May 2012 07:57:47 +0100

Ariel Katz has an exhaustive, 4,000 word must-read post on the Georgia State University fair use decision and some of the implications for Canadian copyright and the university licensing. Every Canadian university that signs the Access Copyright letter of intent today should read this post first.

Queen's To Sign Non-Binding Access Copyright Letter of Intent

Michael Geist — Tue, 15 May 2012 07:55:25 +0100

Queen's University has announced it will sign a non-binding letter of intent to accept the Access Copyright - AUCC deal. The University said the non-binding letter of intent "will allow the university more time to consider whether to accept the model licence." Look for many universities to follow suit today as May 15th is the Access Copyright's imposed deadline for an indication of support.

Bill C-11 Enters Final House Debate With Green Party & Bloc Amendments

Michael Geist — Mon, 14 May 2012 05:41:59 +0100

Bill C-11, the copyright reform bill, is scheduled for debate today, with a long list of proposed amendments from the Green Party's Elizabeth May and from Bloc MP André Bellavance. Given the government's previous rejection of NDP and Liberal amendments, there is little reason to believe any of these proposals with garner support. That said, May's proposals offer sensible changes to many of the most criticized elements of the bill, particularly the digital lock rules. Her proposals include:

linking circumvention to copyright infringement
creating a new notice requirement for the inclusion of digital locks
creating a new qualified circumventer system, similar to that found in New Zealand
adding a new digital lock exception to protect minors
removing the digital lock restrictions for time shifting and backup copies
adding a system to allow the Copyright Board to create new digital lock exceptions
removing the requirement that students destroy lesson materials under a new exception within 30 days of the course concludes
removing the requirement for schools to use digital locks to stop further communication of lessons subject to a new exception
removing the requirement that libraries take measures to ensure digital inter-library loans cannot be used for more than five business days

A previous May proposal to create new limits to education fair dealing has been dropped, though she is proposing giving the Governor in Council the power to create regulations to define "education" for the purposes of fair dealing.

Opposition Mounts to AUCC - Access Copyright Deal

Michael Geist — Mon, 14 May 2012 05:33:23 +0100

Access Copyright will likely promote many universities signing its agreement with AUCC tomorrow, but opposition to the deal continues to mount across the country:

the Queen's University Senate will consider a motion opposing the AUCC - Access Copyright agreement later this month.
Carleton University's Graduate Students' Association have posted a public letter opposing the deal
the B.C. Library Association passed a resolution urging universities and colleges "not to capitulate to Access Copyright's unfair and unreasonable demands"

U.S. Court Issues Major Fair Use Decision

Michael Geist — Mon, 14 May 2012 05:30:19 +0100

A U.S. court has released its decision in a major fair use case involving the Georgia State University e-reserves. Discussion of the 355 page decision here, here, and here.

The Yes Men Crash the TPP Party

Michael Geist — Mon, 14 May 2012 05:27:22 +0100

The Yes Men crashed the Trans Pacific Partnership negotiations on Friday, awarding a fake 2012 Corporate Power Tool Award to the negotiators and distributing hundreds of rolls of TPP toilet paper.

Isn't There a Better Way to Spend $750 Million?

Michael Geist — Fri, 11 May 2012 08:30:16 +0100

As is the case with all mergers involving Canadian broadcast companies, the proposed Bell Media purchase of television and radio giant Astral immediately generated interest in the Canadian television production community, who anticipated yet another huge payday that follows from each of these deals. The Canadian Radio-television and Telecommunications Commission, which must approve the transaction, requires purchasers to "make clear and unequivocal commitments to provide tangible benefits representing 10 percent of the value of a transaction" (the percentage for television assets is typically 10 percent and 6 percent for radio assets).

Given the rapid pace of consolidation in the Canadian broadcasting industry, the size of these tangible benefits packages, which often provide funding for new Canadian productions, has grown dramatically in recent years. In 2007, Astral’s purchase of Standard Radio led to a $12 million benefits package, Rogers acquisition of five CITY-TV stations resulted in a $37.5 million benefits package, and CTVglobemedia’s purchase of CHUM netted over $100 million. In 2010, Shaw’s purchase of Canwest Global generated a $180 million benefits package. The Bell purchase of CTVglobemedia in 2011 topped that with a $239 million benefits package and now the Bell Media - Astral deal could be even bigger.

With over $750 million from these deals alone, the benefits policy has clearly succeeded in generating new capital for the creation of Canadian programming. Yet with so much at stake, my weekly technology law column (Ottawa Citizen version, homepage version) asks whether the current approach optimizes what has emerged as one of the largest sources of media funding in Canada.

The benefits system typically involves a two-stage process. First, the purchaser starts by arguing that its contribution should be lower than the CRTC’s 10 percent standard. For example, Shaw argued that it faced additional uncertainties since it was purchasing Canwest Global out of bankruptcy protection. The CRTC agreed and used a lower figure for a portion of the transaction.

Once the CRTC settles on the value of the transaction and the percentage of benefits, the second stage involves a battle over how to allocate the money. The purchaser invariably wants to direct funding toward its own projects. In 2010, the CRTC allowed Shaw to allocate $23 million toward new digital transmitters, while Bell’s 2011 benefits package included $60 million for its satellite service and $30 million for its newly acquired A Channel stations.

Meanwhile, producers simply want millions allocated toward new programming and other groups are happy to scoop up whatever is left. In the 2011 Bell deal, $3 million was marked for a new Canadian Broadcast Participation Fund, which will allow public interest groups to intervene in broadcasting cases before the CRTC.

While the beneficiaries welcome the benefits payments, the entire system leads to questionable expenditures and conflicted policy. Groups that might otherwise raise concerns about unprecedented marketplace consolidation mute their criticisms for fear of being shut out of the benefits payday. The purchasers build the ten percent contribution into their transaction cost, direct much of the money to projects that further their own self-interest, and use the system to deflect broader policy concerns.

The CRTC is ultimately called upon to adjudicate this mess, yet it has no real expertise in determining how to spend $750 million. A far better approach would be to separate stage one (the size of the transaction and the amount of the benefits package) from the stage two specific allocations. The CRTC could determine the total size of the package during its review of the transaction, but could take the specifics of how to spend the money out of the hands of purchasers and producers by shifting toward a more conventional peer-reviewed granting process.

While no one wants to rock the boat, the current system leads to dubious proposals and primarily benefits established players who know how to navigate the system. If Canada wants to encourage new media and new entrants, a new system is needed.

Copyright Bill Back on the Agenda Next Week

Michael Geist — Fri, 11 May 2012 08:23:41 +0100

The government has announced that Bill C-11, the copyright reform bill, will be back on the legislative agenda next week with the report stage and third reading set for Monday and Tuesday.