Earlier this year the Canadian government took an important step toward the modernization of Canada’s copyright regime by introducing Bill C-32. Although the proposed legislation is more flexible than previous attempts at copyright reform, the bill is flawed at its core by the inclusion of strict anti-circumvention provisions. It is precisely this broad protection for digital locks that voids consumer rights, stifles potential innovation, and unfairly tips the balance of Canadian copyright law that should have Canadians concerned.
Under Bill C-32, everyday consumer activities such as making a backup copy of digital media, unlocking a cellphone, and using a PVR to record a television show would be explicitly permitted. Permitted and accepted only if a digital lock is not circumvented in the process. Imagine you purchased a DVD movie and you wanted to transfer it to your Apple iPad to watch on your flight to Ottawa next week. Sounds reasonable doesn’t it? However, the reality is that under Bill C-32 transferring the DVD you legally own to another device for later viewing would be illegal, as every commercially available DVD employs a digital lock. This is just one example of many consumer activities that, under Bill C-32, would expose Canadians to penalties of up to $5,000.
In the summer of 2009, the government of Canada held public consultations on copyright and Canadians engaged in these consultations at an unprecedented level. However, contrary to the substance of Bill C-32, Canadians overwhelmingly opposed the inclusion of strict protection for digital locks. In fact, of the 8,306 submissions to the consultations, nearly 80 percent (6,641 submissions) urged the government to limit the protection for digital locks and DRM while only 0.05 percent (46 submissions) of the total submissions supported broad protection for digital locks and DRM. Clearly the proposed legislation does not strike its intended balance nor represent the will of Canadians as long as the anti-circumvention provisions exist in their current form.
A more effective approach to the anti-circumvention provisions that inevitably seem to criminalize consumer activities and expose citizens to severe statutory penalties would be to link the act of circumvention to infringement. This approach not only meets our international obligations but it integrates a greater deal of flexibility into Canada’s copyright regime, allowing it to adapt easily to emerging forms of technology and modes of business. Such an approach would prevent consumer activities from being criminalized if the underlying purpose is not infringement, all the while ensuring that creators are fairly compensated for their work and thusly providing incentives for future innovation.
Bill C-32 is now set to make its way through the parliamentary process and be referred to a committee where it will be reviewed line by line and where hopefully the public can be heard from in a fair and representative way. Industry Minister Tony Clement has made statements in the media indicating there exists an openness to amending Bill C-32 to ensure balance for all stakeholders including Canadian consumers and these committee hearings are the venue.
If Canadians remain silent there is a real possibility that Bill C-32 will become the law of the land in its current flawed form, which would undermine the reasonable rights of all Canadians with its draconian protection for digital locks. However, if Canadians take the time to engage themselves in this important issue and speak out, Bill C-32 can be fixed, thus achieving a proper balance in Canada’s copyright regime, established in a responsible and sovereign manner.
Jason Crocker is the chair of the Canadian Coalition for Electronic Rights.