Digital lock rules in Canadian copyright bill go too far, critics say
Among the card catalogues at the City of Vancouver Archives, manager Heather Gordon and digital archivist Glenn Dingwall are figuring out what the future of their expansive collection will look like under the federal government’s latest copyright legislation.
“In a lot of ways, it is not a terrible bill,” Dingwall told the Georgia Straight at the archives of the proposed Copyright Modernization Act. “It makes things more difficult for us to manage [our holdings].”
Vancouver’s archives house 1.5 million photographs; 2,100 linear metres of textual records; 36,000 maps, plans, and architectural drawings; and tens of thousands of digital records.
Nearly every item in the city archives’ holdings is subject to the Copyright Act. So, changes to Canada’s copyright laws will affect how the materials are managed, preserved, and accessed by the public.
Under the proposed rules, pieces of the archives’ collection can’t be made available online, according to Gordon.
“It’s a digital world, and there is an expectation that people have when creating electronic records: why can’t they see them electronically?” Gordon said.
Dingwall noted the legislation has been crafted from a “risk-management perspective”.
“It is saying to commercial infringers, ‘It is very risky for you to continue with that activity.’ It’s saying to private citizens, ‘What you are doing is wrong,’ ” Dingwall said. “We get stuck in the middle. What we are doing isn’t necessarily wrong but it is under the letter of the law considered illegal, because we don’t have the rights to distribute a lot of the stuff that we have here because it doesn’t fall under the fair-dealing processes.”
In September 2011, Industry Minister Christian Paradis and Heritage Minister James Moore announced the reintroduction of the Copyright Modernization Act as Bill C-11. Updating Canada’s copyright laws for the digital age has been in the works since 2005, but each time Parliament has been dissolved before legislation could receive the approval of MPs.
Bill C-11 mirrors the copyright legislation, called Bill C-32, previously introduced by the Conservative government in 2010. Among other things, it offers companies the ability to protect their content through digital locks, also known as technological protection measures.
A digital lock allows a copyright holder to encrypt files to stop unwanted copying, or limit the amount of times the file is moved to prevent piracy.
Under Bill C-11, breaking that lock would be a crime. So, circumventing a lock on a CD to make a another copy or transferring a movie with a lock to a portable device like an iPad would hold a penalty of $100 to $5,000.
Moore, the Conservative MP for Port Moody–Westwood–Port Coquitlam, was unavailable for an interview. However, Sébastien Gariépy, a spokesperson for the heritage minister, issued a written statement saying that copyright holders have the “option” of using digital locks and consumers have the “choice” of buying products.
“We are stepping backwards right now,” Charlie Angus, the NDP’s copyright and digital issues critic, told the Straight by phone from his riding of Timmins–James Bay in Ontario.
Angus thinks Canada needs to update its copyright legislation but says language in Bill C-11 needs to be clearer.
“It is possible to have legal protection for digital locks so that video games aren’t ripped off and traded but that doesn’t mean criminalizing a student who breaks the lock so they can access educational works on their e-reader easier,” Angus said.
“There is a balance we can strike here, but the government doesn’t seem to be listening to both sides.”
Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, called Bill C-11 “flawed but fixable”.
“The one remaining stumbling block are these digital-lock rules,” the law professor told the Straight over the phone from the national capital. “They undermine many of the provisions that are otherwise quite good.
“The argument over whether we should implement digital-lock rules, well, that ship has sailed; it is clear that is going to happen,” Geist added. “The question is what are those rules going to look like.”
It’s unclear when Bill C-11 will be voted on in the House of Commons. But Geist notes, if the current form of the copyright bill becomes law, it could be subject to a constitutional challenge.
“Under the Constitution, the federal government is responsible for copyright, but the provinces are responsible for property and civil rights,” Geist said.In December 2011, the Supreme Court of Canada ruled the federal government’s plan to create a single securities regulator is unconstitutional. It concluded the federal
proposal reached too far into provincial jurisdiction. Geist believes Bill C-11 will encounter similar problems.
“If you have rules like you do right now, someone can infringe the law without actually infringing copyright,” Geist said.
“The prospect of a constitutional challenge if the digital-lock rules remain unchanged is certainly there if the government maintains that current approach.”