For the London Free Press – June 23, 2008

Read this on Canoe

On June 12, the federal government introduced Bill C-61, an Act to Amend the Copyright Act. A hailstorm of critical comment followed within hours.

This bill amends the Copyright Act in various ways. The government states that it is a “balanced approach to truly benefit Canadians . . . (that) will bring it into line with advances in technology and current international standards.”

But the bill is flawed and should not be passed in its current state.

It purports to grant user rights for things like time-shifting and format-shifting of audio and video for consumers. Those provisions contain so many caveats that one has to question their effectiveness. They may, in fact, take away from rights we have under the current Copyright Act, as interpreted by the Supreme Court of Canada.

It also makes it illegal to break “digital locks” that control how we can use music and video. Digital locks are also sometimes referred to as TPM (technological protection measures) or DRM (digital rights management). Ottawa claims an international treaty requires us to pass such a provision, but many people disagree.

The provisions regarding digital locks are based on provisions of the American Digital Millennium Copyright Act (DMCA). This act hasn’t worked well, giving rise to innovation chill and frivolous lawsuits. Indeed, the Canadian bill has been criticized by U.S. sources, who say it’s a mistake to follow the DMCA.

The digital lock provisions will trump user rights for time- and format-shifting. That, in essence, lets creators draft their own copyright law that takes away any user rights we have been given by legislation or the courts.

The bill’s language is quite confusing, which does not lead to clarity of interpretation. That is not good in any statute, but especially in a statute that needs to bring clarity to what ordinary Canadians can do on a daily basis.

Ottawa is right that copyright laws need to balance the needs and interests of both creators and users. The proposed legislation does not, in my view, strike the right balance or reflect the reality of technology and consumer behavior in the 21st century.

Canada had an opportunity to set an example for what 21st-century copyright should be but, instead, has subscribed to the traditional views of certain entertainment industry proponents.

But even the entertainment industry is not unanimous in its viewpoints. Many different groups and organizations have publicly opposed the type of provisions found in this bill.

This bill also should be considered in the context of the recent revelation that Canada is about to become part of a proposed anti-counterfeiting trade agreement (ACTA) with several other countries.

ACTA has troubling provisions, including those that would allow border guards to search mp3 players and laptops and impose sanctions for what they believe is unauthorized copyrighted material.

In my view, neither Bill C-61 nor the ACTA should become law as they now exist. What is needed is a truly unbiased review of the various issues and interests in the context of the modern world.

For more information, look at the articles under Copyright in the tag cloud of my blog at www.canton. elegal.ca.

For further detailed criticism, analysis and links to various commentaries, see Prof. Michael Geist’s blog at www.michaelgeist.ca.