Bill C61 - An Act to amend the Copyright Act (updated July 29)

Back in December I wrote to my MP, Randy Kamp, about the rumored new copyright act amendments. The bill has now been presented to the House of Commons as Bill C-61(PDF). Its first reading was June 12, 2008.

I'm a bit late into the fray with this comment, but my lateness allows me to reference some of the comments from others whose opinions I value highly.

In a nutshell, this bill completely unbalances Copyright in favour of "big business" interests, most of which are headquartered in the US. It codifies the use (and abuse) of Digital Rights Management (DRM) technologies in ways that allow so called "rights holders" to completely bypass the balancing aspects of copyright such as Fair Dealing, and imposes draconian fines and criminal penalties for "circumventing" such DRM even if what is actually done with the media so "released" is otherwise within the scope of the "rights" of the public that are supposed to balance the act of copyright in the first place - things like format shifting and time shifting - which have been held to be reasonable and necessary - and LEGAL.

Read on for some specific instances of what you have to date been able to do - and what will be denied you if this bill passes...  

Update: You might also give a read to Ray Beckerman's article to the American Bar Association's "Judges Journal" detailing some of the travesties of the Recording Industry Association of America (RIAA)'s huge number of civil suits against alleged "file sharers" for an insight into what we may end up with here in Canada if this bill passes.

First, I am not a lawyer (IANAL) so the following is my interpretation and in some cases relies upon my reading of others' similar interpretations - but you should get the gist of the changes and how they may affect you.

• We have all, at one time or another, taken advantage of the ability to record a TV program onto tape - and more recently onto a hard disk in our Personal Video Recorder (PVR) which may be part of our cable set-top-box. This is called "Time Shifting" and while I can't find a Canadian reference to it, you'll be interested in the Sony vs. Universal City Studios case from US case law. I have a bunch of such tapes here in my office - mostly watched once some time after they were recorded, and of things that have since been re-broadcast at times and which I've again watched "live" from the TV.

With the new bill - you'll still be able to do this - but the copy must be erased after 5 days. But see the next item on whether you can record or not in the first place. There is no obvious "grandfathering" of tape archives such as what I have - I guess we'll all be stuck with a bunch of erased tapes soon if we want to stick to the letter of the law. The fine for hold such recordings longer than the 5 days is $500 for any/all instances.

• The current (prior to C-61) Copyright act allows us to "format shift" anything we have legitimately purchased under one or both of the "Fair Dealing" part of the act and the "Private Copying" portion where the Blank Media Levy "pays the artist" through a levy on blank CDs and tapes, etc. In fact, the Fair Dealing specifies "computer programs" but convention has it that this includes making such things as a MP3 from a CD track so you can listen to the songs from a CD you own on your MP3 player. Again, I can't find a specific court case or Board ruling but I'll keep looking. The topic certainly came up in the proceedings I attended in Ottawa regarding the Blank Media Levy.

With the new bill - you'll still be able to format shift as long as you don't break DRM/TPM to do it. This means that if you pay someone (Apple for example) for a song you download online, and that song is protected by copy protection - no matter how trivial - you may NOT change the format of that song to fit your player. This applies even if at some point in the future the player you MUST use is no longer available and yours can't be fixed for some reason. You lose the songs. Fine is $20,000 for EACH INSTANCE (song) you break the TPM on.
In effect, you no longer "buy" such songs, you rent them. It is also possible that such songs may simply stop playing at some point in similar fashion to what happened to "purchasers" of DRM'd videos of baseball so can no longer watch what they've paid for, and Microsoft Music customers who purchase a new PC - can't play their paid-for music anymore.

So we're not talking about something that might happen in the future, we're talking about things that have already happened to people just like you and me.

• The new copyright act enshrines Technical Protection Measures (TPM) as a legitimate part of Copyright as opposed to its being a licensing issue separate from copyright - where copyright itself still provides some balance to the issue.

In effect this will mean that almost no product issued by big publishers will be free of TPM - and it is possible that this will mean a complete loss of access for the future generations to much of what should be our rightful heritage - because if an item is NEVER issued without TPM, and anti-TPM circumvention is policed 100% ($20,000 fine for each transgression is a LOT) then even at the expiry of the copyright period we will not be able to access the works - especially if the encryption key is "turned off" or lost. This "BIT ROT" will put our civilization at peril of not being able to learn from its history.
In addition, this means that any time you purchase music with DRM/TPM, you are locked into using the software that the DRM company created and sold to the music publisher to "protect" the music. This one thing should send you screaming to your MP since it has already had the effect of putting really nasty software onto unsuspecting computer owners' PCs - and no less than SONY did this.

The Sony debacle is not the only one - just the highest profile instance. Other DRM companies have included invasive (as in personal information being sent to central systems on your purchasing and listening habits) software that not only violate your rights, but also leave your PC open to being invaded by other nasty surprises because of either inadvertent screw ups, or planned future "updates"

And of course not only do you have no way of turning off such invasive software (except by not purchasing the music in the first place) but you are locked into using only the computer platforms it supports - and this means for the most part Microsoft's latest operating system, Vista. Yes, Vista - the 100% sop to the big media companies that spends so much time trying to make sure that you, the owner of the hardware on which it runs, are not subverting the system to do anything the big media companies don't want you to do that the system needs far more computer power than previous such systems did, and breaks at the slightest hint that you might have something that has not been blessed by Microsoft on it. And again, this has already bitten people who legitimately have purchased DRM'd video - and then run afoul of Microsoft's "policies" that don't recognize the real rights, only their own interpretation of what is right.

Summary

The bottom line is that nobody should be subject to having their bought and paid for personal computer subverted in any way just to be able to play music. This new copyright act will allow companies to do just that, and if you catch the company at it, you have no right to remove the software or otherwise disable it just so you can listen to music you have paid for the right to listen.

In effect, this proposed change to the copyright act attempts to turn back the clock on the business model of creator-publisher-consumer to continue to include the big publishing companies in the middle, subverting what has been happening where creators (the musicians) self publish because they can - and get ever closer to their audience through the incredible tool called the internet. Only by continuing to push BIG, costly "solutions" to the "problem" of copying can these publishers justify their interposition between creator and consumer. They (the publishers) want you, the consumer, to only purchase from them, not circumvent them and purchase or receive freely from the creators themselves.

The changes in large part simply stifle competition and the evolution of the market.

But don't take just my word for this - read some of the following:

• http://www.digital-copyright.ca/billc61 - a good place to start - and voice your opinions
• http://www.thehilltimes.ca/html/index.php?display=story&full_path=2008/june/23/lobbying/&c=2
• http://hughmcguire.net/2008/06/23/open-letter-to-ministers-re-bill-c-61/
• http://www.nationalpost.com/todays_paper/story.html?id=602856
• http://bowjamesbow.ca/2008/06/20/an-open-letter-8.shtml