Canadians fed US-style copyright legislation? I wish!

(First published on IT World Canada blog)

In an article in p2pnet , Charlie Angus, Digital Spokesperson for the New Democratic Party, said that “Under Stephen Harper, Canadians are being force-fed US-style copyright legislation.” When I read this, all I could think is “I wish”!

While I’ve written about how some aspects of C-61 are lifted near-identical out of the USA’s DMCA, I have not yet put them in context with the rest of their copyright act. Bill C-61, like the DMCA, is a set of changes between the previous Copyright and a new Copyright. US copyright law was more fair before their DMCA than Canadian law is now, and if Canada takes the direction articulated in C-61 we will become that much worse than US law. As bad as this would be, I would be happier to have Canada simply adopt current US law (DMCA and all) than to apply Bill C-61 to current Canadian law.

An important detail to realize with US law is that in their Copyright Act of 1976 codified what they call “Fair Use” as follows (Copyright Act of 1976, 17 U.S.C. section 107):

“TITLE 17 > CHAPTER 1 > section 107

section 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Parody is not specifically mentioned, but it doesn’t have to be since the word “including” is used which suggests the list isn’t intended to be exhaustive. Parody that is critical of the work itself is easily considered criticism. Where there are grey areas and ongoing caselaw is satires which is using a work to poke fun at or comment on something else.

This concept of Fair Use was intended to be retained with recent changes to US copyright law, and the USA DMCA (Bill Number H.R.2281 for the 105th Congress, under Bill Clinton) includes the following statement in “Sec. 1201. Circumvention of copyright protection systems”:

“(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”

It is clear that the USA’s DMCA modified law was intended to retain this ability to be interpreted by courts in a way that is fair according to well understood criteria.

Lets contrast this with Canadian law modified by Bill C-61.

First, Canada does not have a living Fair Use regime. Our section 29 (FairDealings) has a few exceptions to copyright, but they are nowhere near as extensive as the USA’s Fair Use regime.

“Fair dealing for the purpose of research or private study does not infringe copyright.”

“Fair dealing for the purpose of criticism or review does not infringe copyright”, as long as the source is mentioned.

“Fair dealing for the purpose of news reporting does not infringe copyright”, as long as the source is mentioned.

That’s really it, and without any word like “including” it suggests this list is intended to be exhaustive.. Nothing about “comment” , “teaching (including multiple copies for classroom use),” or “scholarship”. There are a number of exceptions that apply to “Educational Institutions” under Canadian law, but given how much learning and teaching happens outside of these closed institutions it is obviously not comparable.

You might then say to me: but the Minister of Industry Jim Prentice and the Secretary to the Minister of Industry Colin Carrie have been saying (YouTube) that the “the educational exceptions”, “the format shifting exemptions” and “the time shifting exemption” are all “made in Canada” and provide important balance for “consumers”.

For those of us who have read the bill (which I’m not convinced includes Mr. Prentice or Mr. Carrie), we notice that these provisions are nowhere near as fair and balanced as US law in those same areas.

Under US law their existing Fair Use regime was used in the case of Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), also known as the “Betamax case”, to confirm that making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement. It is widely believed that shifting content between devices and formats would also be confirmed to be fair use under US law.

Under Bill C-61 the Conservative government clearly stated that the educational, format shifting and time shifting exemptions did not apply if one had to circumvent any type of technological measure in order to do so. This is the opposite statement to the DMCA’s “OTHER RIGHTS, ETC., NOT AFFECTED”. While under the DMCA Fair Use is intended to trump technological measures, under C-61 technological measures are intended to trump our already excessively limited fair dealings.

Definitely “made worse in Canada”.

The so-called educational exceptions are tied to educational institutions (in other words, useless to the majority of us — unlike US law), and most are widely believed by actual educators (rather than uninformed Ministries of Education) to be unnecessary under existing limited fair dealings rules.

If that doesn’t seem bad enough, Bill C-61 makes things even worse.

A contract (read: imposed and not often read or readable End User License Agreement, or EULA) for a download over the Internet can disallow device shifting. Of course, neither the words “download” or “Internet” are adequately defined in the bill to avoid confusion on words that have different meanings for different people. Is the “Internet” any network using TCP/IP (like digital cable services might, and which many LAN’s do), or any network with a publicly routeable IP address, or…what?

A contract for a video-on-demand service can disallow time shifting. The exception also doesn’t apply to streaming over the Internet, only traditional broadcasting (whatever that means, given convergence — is it digital television broadcasting or Internet streaming if the service uses a TCP/IP based network?) I can only keep the the recording as long as necessary to listen to or watch at a more convenient time (and how long is that — too vague for a law that has draconian statutory damages!) The exception specifically does not apply a “network personal video recorder service”, an option that a number of cable/etc companies wanted to offer in Canada.

I could dive into the additional exceptions and limitations to those exceptions that apply to Educational Institutions, but it doesn’t matter given unlike US Fair Use this doesn’t apply to the majority of us.

Election time!

We are about to go into an election (likely to be called on Sunday), and Bill C-61 will die on the order paper. We shouldn’t simply rejoice and think that this battle is over, but recognize the opportunity we have.

No matter who forms government it will be the case that the vast majority of elected politicians will have no clue what the digital copyright debate is about, or why it is so important to Canada’s place in the new economy. This is, of course, unless we do everything we can to be involved in the election and find out who understands the issues, and help them get into government.

I realize I’m repeating myself, but this is an issue where individual Members of Parliament matter more than political parties, as it is really that tiny subset of people who will be in any committee studying the next tabled copyright bill that will have the required influence to allow us to have copyright that is fair.

If you bump into a candidate that really believes that C-61 was fair and balanced, let us all know so we can do our best to boot them out (or simply keep them out).

Not just against C-61, but for something…

One obvious modernization to Canadian law we must be calling for is to adopt a living Fair Use regime, possibly modelled after the US law. As an improvement it could include updates from caselaw (such as the Betamax case) to make very clear that time, device and format shifting are Fair Use, without the embarrassing limitations that we saw in C-61.

While good Copyright law wouldn’t mention technological measures at all (as said elsewhere, these are provincial contract, eCommerce and property law issues), our law could be radically improved by incorporating Fair Use.