Michael Geist’s 61 Reforms for C-61
p2pnet news P2P:- | Politics:- Ottawa, law professor Michael Geist has taken on an ambitious project.
“Today marks the first day of the House of Commons summer recess, yet there are just 61 weekdays until it is scheduled to resume on September 15th,” he said on Monday, going on:
“There are just 61 weekdays until it is scheduled to resume on September 15″.
So, “In light of that numerical coincidence,” he launched the first of a 61 Reforms for C-61 series which’ll feature a, “new necessary reform to the deeply flawed Canadian DMCA each weekday thoughout the recess”.
Many of the proposed changes, “will unsurprisingly focus on the anti-circumvention provisions,” he said, kicking the series off by emphasising industry minister Jim Prentice, “failed to properly consult the public before introducing C-61″.
The last full copyright consultation occurred in 2001, Geist notes.
Here are the first five posts >>>
61 Reforms to C-61, Day 01: Remedy the Lack of Consultation
There have been several House of Commons committee hearings that touch on copyright, though only one – the 2004 Standing Committee on Canadian Heritage Bulte report – directly focused on copyright reform. In my view, there is something fundamentally wrong about meeting with representatives from foreign governments and a handful of copyright lobbyists, while refusing to make time for education, consumer, and public interest groups. Indeed, many of the flaws in C-61 could have been addressed in advance with a proper consultation.
That said, Bill C-61 is a reality.
My first reform is that the government should remedy the way in which this bill came about by ensuring that all voices are now heard. This will require a commitment to extensive committee consultations, including ample opportunity for Canadians to air their views, cross-country hearings to ensure access for all, and a willingness to take as long as needed to get this bill right. The Standing Committee on Industry is expected to take the lead and there should be significant time allocated toward consultations.
Moreover, given the subject matter, the committee should work to identify methods of participation that extend beyond the (largely inaccessible) committee structure. This could include electronic town halls, online submissions, crowdsourced interviews, and more accessible methods of identifying proposed amendments to the bill.
Too much of Bill C-61 reflects backroom dealings. The time has come to ensure that the future process better reflects Canadian voices and values.
61 Reforms to C-61, Day 2: Format Shifting Limited to Videocassettes
One of Bill C-61’s “consumer-oriented provisions” (as emphasized by Industry Minister Jim Prentice) is the arrival of format shifting. Prentice’s opening remarks focused on how consumers will be able to legally “format shift” music, photographs, and books under the new bill. Yet the format shifting provisions for video are nothing short of bizarre given Prentice’s claim that the bill is designed to “bring us in line with new technologies.”
The bill provides Canadians with the right to copy a video yet limits this right to videocassettes (additional limitations include requirements that user did not borrow or rent the video, owns the medium or device onto which the video is being shifted, doesn’t break a digital lock to make the copy, makes no more than one copy, doesn’t give away the copy, and only uses the copy for private purposes).
Leaving aside the long list of limitations, the very notion of limiting format shifting to analog technologies reinforces the notion that the bill gives Canadian consumers analog rights, while the copyright lobby gets digital rights. Given the ubiquity of DVDs, a format shifting provision in 2008 should surely give Canadians the right to shift their store-bought DVDs to their personal computers or video iPods.
Indeed, it is absurd that the bill leaves far larger potential damage awards for Canadians that format shift their own DVDs than it does for people who download the same content from peer-to-peer networks.
This reform should be a no-brainer – the limitation to videocassettes in Section 29.21 should be expanded to video in analog or digital form.
61 Reforms to C-61, Day 3: Format Shifting Subject to Digital Lock Provision
Yesterday’s reform focused on one key limitation in the format shifting provision, namely the odd limitation of the format shifting provision to videocassettess. Today’s reform picks up on what will be a consistent theme throughout this series – the subordination of any consumer rights to the digital lock. Indeed, virtually all the so-called rights in Bill C-61 come with a big asterisk since the content distributor or creators (typically distributor) gets to determine whether Canadians can actually take advantage of these new rights. If the distributor or creator chooses to impose a digital lock on their song, video, photograph, book, or other content, the consumer rights disappear.
This is in marked contrast to other user rights in the Copyright Act that set limits on what users can do (it is fair dealing, not free dealing), but do not leave absolute control in the hands of the distributor or creator.
Industry Minister Jim Prentice only occassionally acknowledges this limitation. For example, in his recent Kingston Whig-Standard letter to the editor, he noted that
itals Our government is the first to allow Canadians to record their TV and radio shows to enjoy at different times – without infringing copyright. Our reform will also permit consumers to copy music onto devices such as MP3 players, and to copy books, newspapers, videos and photos into different formats.
Yet he failed to admit that these new rights are subject to the core limitation that any circumvention of a digital lock disqualifies the format shifting. He also fails to note that his government is the first to restrict Canadians in such an absolute manner. The necessary reform here is the removal of Section 29.21(c) which may make these new rights largely ineffective in the digital world.
61 Reforms to C-61, Day 4: Format Shifting’s 12 Step Approval Process
My final post on the format shifting exception focuses on the sheer complexity of the provision. The idea behind format shifting makes a great deal of sense – consumers buy books, photos, videos, and other content and want the right to view or enjoy the content on the device or medium of choice. Those rights can be priced into the purchase price and copyright law should facilitate that form of personal use.
Yet even beyond the digital lock limitation, the provision contains so many conditions that it will leave many Canadians unsure as to whether they have complied with the law. Just how complicated? The PDF chart below shows the 12 step process that Canadians must meet in order to comply. This is simply unworkable for all but a handful of lawyers. The government has said it wants to target commercial infringement, yet complicated provisions like this one send a different message.
The law should be amended to keep format shifting, but with a simplified process.
61 Reforms to C-61, Day 5: Time Shifting Provision Subject to the Broadcast Flag
Having discussed the format shifting exception, this series now turns its attention to the time shifting provision (Section 29.23). It should be noted that the legalization of recording television shows is long overdue – I argued for it last year and Canada is more than 25 years behind the United States in this regard. While the inclusion of the time shifting provision is a good thing, this particular implementation suffers from several notable shortcomings that could have been addressed through a more flexible fair dealing provision.
The first is that the provision is really geared toward analog or VHS recording where there are few technical limitations on television recording. As Canadians increasingly use PVRs to record programs in digital format, their ability to record shows becomes more limited. Bill C-61 expressly includes an anti-circumvention provision (Section 29.23(1)(b)). In other words, if there is a digital lock (often referred to as a broadcast flag) included with the broadcast, you can’t legally circumvent it in order to record the program.
Note that the U.S. has established limits http://www.michaelgeist.ca/content/view/2973/135/ on the use of the broadcast flag, but no such limits exist in Canada. As Canada transitions to digital, it is possible that broadcasters will increasingly institute anti-copying notices to stop the very recording rights that C-61 purports to provide.
Industry Minister Jim Prentice has focused on the time shifting provision as one of the foundational consumer rights in Bill C-61 but the bill should be amended to ensure that the right will still stand in a digital world.
Stay tuned.
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