No need for copyright law to be so complex
The more complex it becomes, the less it will be possible for Canadians to understand and respect copyright law.
Published by the Hill Times on November 15, 2010
OTTAWA—In the Nov. 8 issue of The Hill Times, lawyer James Gannon took NDP MP Charlie Angus to task for something said in the House of Commons, “Politicians should read the laws they vote on.” It is important to put these comments into context.
Angus is not a lawyer, and like many non-lawyers will accidentally use the word crime when talking about a non-criminal act that is illegal. I have seen Angus speak many times. He doesn’t read from extensive notes, and gives passionate speeches from the heart.
As a fellow Canadian creator, he is the most active in Parliament in protecting our interests. In this context of public speaking I believe any human should be forgiven for an inappropriate word here and there.
Gannon is one of a narrow set of lobbyists trying to push Canada towards one specific implementation of “digital locks” in copyright law, known in the Bill C-32 as technical protection measures (TPMs). This position was pushed forward and ultimately rejected at WIPO in 1996. A few individuals have been trying to rewrite history as if they won that debate. In Canada, Gannon is joined by McCarthy Tétrault LLP colleague Barry Sookman, and internationally by Mihály Ficsor, assistant director general at WIPO in the early 1990s when the relevant treaties were being negotiated.
Contrary to claims by Gannon and Sookman, the TPM provisions in C-32 are extremely complex and take up over 10 pages of a more than 60-page bill. Many other aspects of the bill also reference the TPM provisions, often revoking those sections in the presence of a TPM. These provisions require both sophisticated technical and legal knowledge to decipher.
The section of Bill C-32 that defines TPMs divides them into two groups: access controls and use controls. It is critical to understand which type of technical measure is being discussed, as it greatly impacts the analysis of whether the activity is infringing or not.
The encryption on DVD movies is a simple real world example of an access control, where the relevant decryption keys are embedded within the hardware/software used to access encrypted DVDs. This access control is used to protect complex contractual arrangements between the manufacturers of DVD videos and the manufacturers/authors of DVD accessing hardware and software. The organization managing this set of contracts and access controls calls itself the DVD Copy Control Association, but calling oneself a copy control association does not define the technology as a copy control or a use control.
In the context of using DVD clips in user-generated content (UGC), Sookman wrote on his personal BLOG that, “Bill C-32 does not prohibit individuals from circumventing copy control TPMs in order to create UGC works, only access control TPMs.”
In other words, he misinterpreted the impact of C-32 in this real world situation by confusing an access control with a copy control TPM. You will read similar things from many other lawyers who do not adequately understand the technology being regulated.
While I believe we should excuse Angus’ usage of a few legal terms in a larger speech, we should be far more critical of those who promote excessively complex law that they are not always able to understand themselves. I believe that the more complex copyright law becomes, the less it will be possible for Canadians to understand and respect it. If the lobbyists promoting these laws get it wrong, how can average Canadians, including our children be expected to always get it right?
Russell McOrmand is a technical consultant and host for BillC32.ca.