Restricting What’s Fair

by  Alan Zisman (c) 2008 First published in Columbia Journal September 2008

In June, Industry Minister Jim Prentice and Heritage Minister Josee Verner introduced Bill C-61, a revision of Canadian copyright legislation, to Parliament. This legislation is the result of pressure from media corporations to bring Canadian copyright law in line with its American counterpart.

Copyright law sets out a balance between the rights of content creators and publishers on the one hand and content consumers on the other. Copyright holders are given the power to limit copying of their content for a period of time, while content consumers are allowed 'fair use'. Defining fair use has kept courts busy-- when videotape recording first became commonplace, courts declared that consumers taping broadcasts to watch them later was fair use, for instance.

Computers and Internet have brought about new ways for users to access, copy, and distribute content: text, images, music, and video, and the like. And the result has been pressure on courts and legislatures to redefine copyright and fair use.

For the past decade, that's been defined differently in the US and Canada. The US has had a restrictive 'Digital Millennium Copyright Act' (DMCA), that makes it illegal for anyone to try to evade digital rights management techniques locking down media files- even if in doing so, a user is simply trying to get what traditionally has been fair use of something they've purchased. For instance-- you buy a commercial DVD disc; you want to copy it onto your iPod so your kids can watch it on a long car trip. Oh, sorry, you may be in violation of the DMCA- at least if you're in the US.

In Canada, meanwhile, the laws are pre-digital, and the courts have been much more liberal in defining fair use. US media corporations have raised concerns that Canadian legislation did not comply with World Intellectual Property Organization treaty obligations.

Prentice and Verner describe Bill C-61 as striking a reasonable balance between the rights of consumers and copyright holders. And apparently, the Bill as tabled is less severe than earlier proposed versions. The bill allows consumers to continue to shifting content from analog to digital formats (digitizing old LPs, cassette, and video tapes, for instance) and to transfer music you own from your computer to your iPod, for instance. But there's a catch.

As in the US DMCA, under C-61, it would be illegal for Canadian consumers to circumvent corporate digital rights management-- whether by 'sharing' copyright music or videos over peer to peer networks, or by making personal use of purchased music or videos on an unauthorized device. In fact, these provisions in C-61 are harsher than their equivalents under the DMCA. Activities that are common- and legal- today, such as watching out-of-region DVDs or unlocking a cellphone, will be illegal if C-61 becomes law. The US legislation allows for a small set of exceptions: people with sight disabilities get special access, for instance, while there is a mandatory review process to identify new exceptions. Under C-61, a Canadian consumer who used the open source Handspring software to convert a DRM-protected DVD they'd purchased into a format viewable on their iPod could be liable to a fine of up to $20,000.

And reading the fine print in C-61, according to Canadian copyright activist Michael Geist, "there are 12 conditions before Canadians can record a television show".

Canadian educators had hoped for an exception; most online content may be restricted, however, making it difficult to use legally. Libraries would be allowed to distribute material electronically- but libraries must ensure that use is limited to 5 days.

As I write this, Parliament is recessed for the summer; it is scheduled to debate C-61 when it resumes sitting in the fall, unless it is dissolved in order to hold an election- in which all pending legislation simply disappears. Many concerned Canadians have begun organizing to oppose C-61; if interested, two Facebook groups are worth checking out:
Stop Bill C-61: Canada's 'Balanced' Approach to Copyright Reform (http://www.facebook.com/group.php?gid=26652070742&ref=nf) and Fair Copyright for Canada (http://www.facebook.com/group.php?gid=6315846683), which claims over 80,000 members. If you're not a Facebook user, Fair Copyright for Canada maintains a website at: http://www.faircopyrightforcanada.ca/