The false link between locks and levies

The Bill C-32 legislative committee meets for the first time tomorrow with hearings likely to begin later this week. The digital lock provisions will undoubtedly be a major focus of discussion with all three opposition parties calling for changes to the current approach. Industry lobby groups will continue their effort to keep the C-32 lock provisions, one of the world's most restrictive implementations of anti-circumvention legislation, unchanged.

While their support has not wavered, the lobby group rationale for supporting the existing digital lock approach continues to evolve. Some have tried to argue that the approach is required by the World Intellectual Property Organization Internet treaties, a position that the legislative history and international practice conclusively demonstrates is wrong. Others have suggested that Bill C-32 is consistent with other countries, only to find that many other countries adopt less restrictive approaches (e.g. New Zealand and Switzerland) with even the U.S. implementing exceptions on DVDs and jailbreaking phones not found in Canada. Those that hoped that ACTA would provide a reason to keep the C-32 digital lock provisions have been also disappointed, as the ACTA text retains international flexibility with the EU's interpretation providing firm evidence that C-32 goes beyond what is required (the same will presumably be true for CETA).

With these lines of argument lost, the industry lobby groups now appear set to argue that the opposition to extending the private copying levy provides a strong rationale for strict anti-circumvention rules.

While it surprised some MPs this past spring that groups like CRIA oppose extending the levy, the same groups now want to argue that if creators are not compensated via the extended levy they oppose, they instead need stronger legal protection for locking down their content.

This argument is wrong again. First, the attempt to link locks and levies provides a useful reminder that Bill C-32 prohibits circumvention even with the existence of the levy. In other words, consumers are asked to pay twice - first for the CD and second for the levy on the blank CD - and yet are labeled infringers if they seek to make the personal copy they've effectively paid for. If CRIA's supporters believe in the link between locks and levies, they surely should be arguing for the right to circumvent where the levy is in place (but don't).

Further, experience demonstrates there is no link between locks and levies. Countries such as New Zealand have adopted flexible anti-circumvention rules and do not have a levy. There is also limited overlap in terms of coverage with restrictive locks applying to everything (CDs, DVDs, e-books, etc.), while the levy only applies to sound recordings. Yet the best rationale for understanding why there is no link came last week from Canadian Heritage Minister James Moore. As I blogged, last week he told the CBC:

When I buy a movie, I've paid for the movie. To ask me to pay for it a second time through another device - and to assume that I'm doing illegal copying, to assume that I'm being a pirate, to assume that I'm thieving from people because I happen to own an MP3 player or a BluRay player or a laptop, I think treats consumers unfairly.

Moore is right - consumers should not be asked to pay twice and the law should not start from the assumption that consumers are violating the law. That is a powerful argument against the levy, but it also applies to anti-circumvention rules that attempt to force consumers to pay multiple times for the same content and start from the presumption that consumers are infringers. The right approach is to adopt anti-circumvention rules that target the infringers, but ensure that consumers are not treaty unfairly by maintaining their rights even with the presence of a digital lock.

Michael Geist is a law professor and the Canada Research Chair in Internet and e-commerce law at the University of Ottawa.