Canada's New Copyright Modernization Act (or Bill C-32) Otherwise know as DCMA

Well it's here and it's not as bad as I thought it would be I have to admit I was expecting a lot worse. On Wed. June 2nd the government introduced the Copyright Modernization Act (or Bill C-32) Otherwise know as DCMA. So here is the Good, and The Bad, and what we consumers need to do.

The Good:

new performers rights as demanded by ACTRA new photographers rights as long demanded by photographer groups new exception that addresses potential concerns temporary copies for technological processes new BitTorrent provision which establishes infringement for providing services via the Internet that a person knows or should have known is designed primarily to enable acts of copyright infringement new ephemeral exception as lobbied for by Canadian broadcasters new library provisions to allow for digital distribution (subject to digital locks) new distance learning teaching exceptions that encompass podcasts (subject to digital locks) Internet exception for education "YouTube" remix exception for user generated content that permits non-commercial use of works under certain circumstances new technology-neutral format and time shifting provisions legalizing common consumer activities such as recording television shows and shifting CDs to iPods (subject to digital locks) new backup copy provision (subject to digital locks) expansion of the exception for the visually impaired

Fair Dealing.  The government rejected a made-in-Canada flexible fair dealing provision as Mr James Moore looks like the anti-exception Minister.  Despite that there are many exceptions that address creators (parody and satire), education (education exception, education Internet exception), consumers (time shifting, format shifting, backup copies), and user generated content (USG exception).  This leaves innovative businesses without the benefit of flexible fair dealing.

Intermediary Liability.  The government has opted for a notice-and-notice system for Internet providers (ISPs).  The system is costly for Internet providers, but has proven successful in discouraging infringement.  It is also far more balanced than the U.S.notice-and-takedown approach or the three-strikes model that would result in terminating subscriber access (Which the US has been pushing for and is currently in ACTA).

Statutory Damages.  The new rules reduce statutory damages for non-commercial cases to as low as $100 along with a maximum of $5000.  The current fines are up to a $20,000 maximum.  There are still tough potential damages but the law distinguishes between commercial and non-commercial infringement.  The bill also provides the prospect of targeting sites that facilitate infringement with aggressive new penalties.

The Bad:

The digital lock provisions. The prioritization of digital locks is the choice of the U.S. DMCA and is now the choice of the Canadian DCMA.  In my opinion the Canadian digital lock provisions are worse than those found in the U.S., with fewer exceptions greater difficulty to "bend" the rules.  The Canadian DCMA provisions are virtually identical to the U.S. with a few exceptions, a ban on the distribution and marketing of devices (ie. software like Mac The Ripper and DVD Decrypter) that can be used to circumvent, and a presumption that any circumvention is an infringement (So all consumers are thieves).  The only significant difference between this bill and C-61 is the exception for unlocking cell phones.  So in otherwords all the good stuff gets nullified by the bad stuff like the backup copy provision would be illegal if you wanted to backup a DVD movie.  A DVD had copyright protection to keep you from making copies of the DVD you purchased.  A Norwegian programmer named Jon Lech Johansen cracked the DVD encryption so he could watch his DVD's on linux.  To have a look at a comparison of the New Bill (C-32) and the Old Bill (C-61) click here

What you can do!

Write your MP! Below is a Letter Template

Honourable {Your MP Name Here}
House of Commons,
Ottawa, ON, K1A 0A6

CC: Honourable Tony Clement, MP, Minister of Indistry
CC: Honourable James Moore, MP, Minister of Canadian Heritage
CC: Honourable Charlie Angus, MP NDP Digital Affairs Critic
CC: Honourable Marc Garneau, MP, Liberal Industry critic
CC: Honourable Pablo Rodriguez, MP, Liberal Heritage critic;
CC: Right Honourable Jack Layton, MP, Leader of the NDP
CC: Right Honourable Gilles Duceppe, MP, Leader of the Bloc Québécois
CC: Right Honourable Michael Ignatieff, MP, Leader of the Opposition
CC: Right Honourable Stephen Harper, MP, Primer Minister

Date June {day} 2010
RE: Bill C-32 – An Act to amend the Copyright Act

Dear {Your MP Name Here}

This Bill was introduced in the House of Commons on 2 June. I am pleased with some of its clauses; making iPods and TV show recording legal for the first time in Canadian history, and allowing for parody as fair dealings.

However I am particularly troubled by the absolute legal protection for digital locks. Please explain why it should be OK for me to copy my CD to my iPad, but not also my DVD. Effectively what this sort of blanket protection for Digital Restrictions Management does, is allow copyright owners to completely disregard every user right granted and acknowledged in this Bill. So users have expanded fair dealing rights. Except when copyright holders say they don't.

One step forward and two steps back, in regards to real copyright reform.

This does not find a balance between copyright owners and users rights. It completely emaciates users rights in favour of copyright holders. In recent years music publishers have been moving away from DRM technology in acknowledgement of its failings. This Bill however, will encourage them to re-embrace DRM so they can take advantage of the wide breadth of new rights this Bill offers them. If music, software, and book publishers all do so (as the movie producers already have with Blu-Ray and DVD) then there will effectively be no such thing as fair dealings any more in Canada.

I implore you to change the act so that it is NOT illegal to circumvent digital locks when done to enable acts that would otherwise be legal. Unless you do this, there is no point in even having something called fair dealings.

There are many other areas of the act that could be improved, as well as other timely reforms that should be implemented such as crown copyright, but this one is by far the most egregious, and should reasonably be considered a deal breaker by all MPs. I would be pleased to discuss this and other issues with the Act whenever you may have time to do so over the summer.

Kind Regards,

For more information you can follow me @trevortye on twitter, and @michaelgeist on twitter.

For more information about Copyright and The ACTA (which will affect copyright) visit http://www.michaelgeist.ca/

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