This Thursday, Minister Prentice tabled Bill C-61, otherwise known as “Canadian DMCA”. This move was widely expected as well as the contents of the bill. Though there have been provisions added for some “fair use”, the details reveal DMCA-style rules that may leave consumers in legal limbo when it comes to making personal copies. In fact, these rules are even more stringent than the US DMCA, and for a bill that’s been paraded as “Made in Canada”, there’s been a frighteningly small amount of feedback that the Federal Government has taken from its citizens. Add to this the rumours that Prentice met with “U.S. trade representatives and entertainment industry lobbyists to discuss the legislation,” and you have to wonder just who wrote this bill.

The biggest offenders in the bill include severe penalties for tampering with “digital locks”, such as DRM. (Digital Rights Management, or as some like to put it, Digital Restrictions Management) These are the restrictions put on certain media/content that you’ve purchased that may limit you to listening/viewing the media on only one device/computer. Though Bill C-61 fully allows private copying among multiple devices – as it should – the point is rendered moot because of the provisions banning the circumvention of digital locks. So, though you are technically allowed to copy music you own to your MP3 player/iPod, the actions that you may have to take to accomplish this perfectly legal action may themselves be illegal. For example, if you want to rip a DVD you own for watching on your iPod, you would be breaking the law because you’d have to use tools to circumvent the copy protection on the DVD.

This effectively puts you at the mercy of the content distributor, who may choose to limit your listening options. If you’ve purchased any content that can only play on one device because of DRM, there is effectively no legal way to copy it to other devices you own because breaking the DRM to accomplish this benign goal is against the law in and of itself. It’s like being told it’s “okay to eat cookies,” but then locking all of them in a box and adding, “so as long as you don’t touch any locks.”

There are some exemptions for uses like research but it remains to be seen how these exemptions will hold up in court should the bill pass, especially since it’s expressedly forbidden to use or produce the tools that circumvent digital locks. (You cannot distribute these tools, or else you face the possibility of a steep fine) The big worry here is that the laws against digital lock circumvention will be used to stifle research; such ideas are not far-fetched as the US DMCA has already had a chilling effect on research.

Besides the absurdity of the law, DMCA-style laws have also been used by certain companies to in an attempt to implement anti-competitive practices. In that case, Lexmark, a printer manufacturer, attempted to sue a third-party manufacturer for making replacement ink cartridges for its printers. Sounds ludicrous, right? Well, not under DMCA. Lexmark, noting that circumvention of digital locks was prohibited by the DMCA, attempted to put microcontrollers (digital chips) in all of their ink cartridges so that only these “authorized” units would work in their printers. When the third-party manfacturer duplicated these chips so that their cartridges would work in Lexmark printers, Lexmark sued, thinking they had a clear DMCA violation. Thankfully, the courts ruled against Lexmark, but the case still highlights the kinds of bad practices some companies might try to implement while hiding behind and abusing DMCA laws.

Furthermore, I’ve read that the blank media levy will be expanded to cover a wider range of devices. Currently, the purchase blank media such as recordable CDs and DVDs in Canada incur a surcharge that effectively goes to compensate artists/content producers for the lost revenue that is assumed with copying on to blank media. This bill may expand that to cover MP3 players like iPods, so the price of those devices is expected to rise. All of this just doesn’t make sense. The blank media levy assumes a loss that comes from sharing and copying content such as music – the very same actions that are also strictly prohibited by this bill. So, does this bill now assume that all Canadians are breaking the law? Let’s hope that companies making MP3 players and other devices will protest strongly against this, and Bill C-61 in general.

Let’s hope that this bill doesn’t pass before summer recess and that it’ll be left to die or that proper input from Canadians will be taken before it’s put to the House again. Let’s make this “Made in Canada”, not just with words, but in content as well.

Update

This was an e-mail I received from Minister Prentice’s office. I had written to him a few weeks ago to voice my opposition to the bill.

The Government of Canada has introduced Bill C-61, An Act to Amend the Copyright Act. The proposed legislation is a made-in-Canada approach that balances the needs of Canadian consumers and copyright owners, promoting culture, innovation and competition in the digital age.

What does Bill C-61 mean to Canadians?

Specifically, it includes measures that would:

* expressly allow you to record TV shows for later viewing; copy legally purchased music onto other devices, such as MP3 players or cell phones; make back-up copies of legally purchased books, newspapers, videocassettes and photographs onto devices you own; and limit the “statutory damages” a court could award for all private use copyright infringements;

* implement new rights and protections for copyright holders, tailored to the Internet, to encourage participation in the online economy, as well as stronger legal remedies to address Internet piracy;

* clarify the roles and responsibilities of Internet Service Providers related to the copyright content flowing over their network facilities; and

* provide photographers with the same rights as other creators.

What Bill C-61 does not do:

* it would not empower border agents to seize your iPod or laptop at border crossings, contrary to recent public speculation

What this Bill is not:

* it is not a mirror image of U.S. copyright laws. Our Bill is made-in-Canada with different exceptions for educators, consumers and others and brings us into line with more than 60 countries including Japan, France, Germany and Australia

Bill C-61 was introduced in the Commons on June 12, 2008 by Industry Minister Jim Prentice and Heritage Minister Josée Verner.

For more information, please visit the Copyright Reform Process website at www.ic.gc.ca/epic/site/crp-prda.nsf/en/home

Thank you for sharing your views on this important matter.

The Honourable Jim Prentice, P.C., Q.C., M.P.
Minister of Industry

The Honourable Josée Verner, P.C., M.P.
Minister of Canadian Heritage, Status of Women
and Official Languages and Minister for
La Francophonie

Even their own spin on the provisions of the bill make no sense. We’re allowed to make backups of “books, newspapers, videocassettes and photographs”. I don’t know of anyone who backs up books or newspapers and how are videocassettes still relevant? Furthermore, this e-mail seems to indicate that making copies of DVDs is not permitted – but hey, maybe I should just be buying the VHS version instead. So much for bringing Canada up-to-date and into the future.