|
 The National Post carries some of my first thoughts on the new copyright Bill. [Update: Here's the version that appeared in print on Monday.] This is what I had to say there: When Canada’s reform copyright Bill C-61 was tabled, Industry Minister
Jim Prentice said it was a “win-win approach” that balanced the needs
of users and creators. Anyone who actually reads the Bill, however,
will quickly realize that claims about balance are simply spin-spin. So
my role as an academic commentator is to cut through the Government’s
poor drafting, public relations gloss and conflicting reports to figure
out what the proposed reforms would actually mean in practice.
Not to be a total nay-sayer, let me start with the good. Believe it
or not, there are some interesting and promising principles buried in
the Bill. The idea of lower damages for non-commercial infringements
compared to commercial piracy is a good one. Likewise, attempting to
add provisions that legalize the everyday activities of ordinary
Canadians is the right way to go. And librarians and educators need
more flexibility to carry out their jobs without violating copyright
law.
But sadly, the potential promise of these ideas is
entirely negated by all of the technical limitations, which render any
ostensible balance effectively meaningless. That’s the bad in the Bill.
Let
me give you a practical example. Want to rip a CD to your iPod? No
problem. But only if you own the original CD and keep it indefinitely
(no garage sales to get rid of that dusty disc collection in the
basement without first wiping your iPod clean). And it has to be your
iPod as well. Technically, you can’t rip songs to your sister’s iPod,
nor can your kids load up your Father’s Day gift with any songs before
they give it to you. If you want to make a backup library of tracks you
downloaded legally from the Web, don’t do it before checking that
contract you “agreed” to (probably with a single click and without
reading the fine print). Your library might be prohibited, though
you’d probably never know that until you got sued. Consumer friendly?
You tell me.
The Bill’s 50-plus pages of fine print are full
of such silly technicalities making any semblance of balance more spin
than substance. But that’s not even the ugly.
The worst of
the Bill is that it makes its balancing provisions irrelevant. The Bill
basically says that technology trumps whatever rights consumers or
competitors might have otherwise had. So the law no longer matters.
People only have whatever rights content owners choose for them.
For
instance, if the CD you’re now allowed to shift to your iPod is
technologically locked down, then, well, you’re completely out of luck.
Try to circumvent the access and copy controls, and the well-publicized
provision to limit damages to $500 for non-commercial infringements no
longer applies. You’re on the hook for up to $20,000 per infringement,
which is actually $60,000 per song by the time you account for the
composer, performer and record label. Multiply that by a dozen or so
and you get a sense of the damage awards really possible if this Bill
becomes law.
There are very few exceptions to the
prohibitions on accessing locked-down content, to protect yourself from
privacy-invasive spyware or to give access to visually impaired
persons, for example. But even those few exceptions are probably useless
because it is forbidden for anyone to create or distribute the tools to
make access or privacy protection possible if they "unduly impair" the technological measure, whatever that means. Who knows how these confusing exceptions for the exceptions would eventually apply.
The provisions
protecting digital locks are not just bad for consumers, educators,
librarians and other ordinary Canadians. They’re bad for businesses
too.
Legal protection for locks could conceivably boost confidence and investment in Canada's online marketplace, but innovative services like online movie rentals are already being rolled out without these laws. Anti-circumvention provisions have a serious downside. In addition to the likelihood of unintended future consequences, digital locks facilitate anti-competitive behaviour
and practices like tied selling. That’s where consumers are locked into
a particular product or service because the content is technologically
incompatible with any other vendors’ offerings. This reduces
competition, consumer choice and creators’ access to new markets.
It’s
no wonder so many content creators — songwriters, performers,
filmmakers, authors and others — have come out against this new
copyright Bill. There’s nothing in it that would actually help most
creators earn the living they deserve.
There are
alternatives. What we need are not convoluted new provisions and
protection for digital locks. We need creative legal strategies to
profit — economically, socially and culturally — from the vast
potential of the networked information economy. The government can help
by streamlining and simplifying copyright licensing instead of making
it even more complex. Let’s hope the government listens to the
overwhelming outcry against Bill C-61 before the proposal becomes law.
|
