Fight Diary: Round One.

By Riva G.

Bill C-11: Worth Fighting, but still not SOPA

By Josh Stark

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By Jason Rogers

01

Feb

Bill C-11: Worth Fighting Against. But Still Not SOPA.

By jjmstark

A few days ago you may have seen this blog post being circulated around facebook and twitter. It warns that the Harper government is set to pass Bill C-11, which (the author claims) would introduce SOPA-like copyright controls into Canada. 

Is this true? Not really. Bill C-11 is the latest attempt at copyright reform in Canada, and shares a lot in common with previous proposed legislation like last year’s Bill C-32. Bill C-11 is a great improvement over the last attempt, but still has some major problems. The biggest problem is that it would make it illegal to circumvent any digital locks or DRM software on digital content. However, C-11 does not include “SOPA style” provisions currently, and the only evidence that they *might* be added later is largely unproven rumour.

What are digital locks, and why do I care?

A digital lock is a piece of software that restricts how digital content can be used. These sort of restrictions are often referred to collectively as “Digital Rights Management” (DRM) software. For example, sometimes when you purchase music from a digital provider, that music will only be playable on certain devices. Some sellers of eBooks package the product with software that prevents people from copying and pasting text out of that book into, say, microsoft word.

Whether digital locks should exist or not is one issue. If consumers really hate them, they can purchase products from those who sell their content without these restrictions. The problem here is that C-11 would enforce these restrictions by law. In practice, what it does is allow any copyright owner to sue someone who circumvents a digital lock on their work, even if they have not actually done anything with that work like pirate it or make unauthorized copies.

This means that digital content distributors - record labels, music studios, book publishers - can not only try and determine how you use your purchase, they can also rely on the justice system to punish people who don’t play by their rules. 

It’s unclear why we need to create legal restrictions on behaviour that might have absolutely no connection whatsoever to copyright infringement. There are many legitimate reasons to circumvent digital locks - fair use such as remixing or creating mashup music, copying text for educational purposes, or just trying to watch the movie you bought on the device of your choosing. The digital lock provisions would also make it illegal to copy and paste text from art in the public domain - you could be sued for copying text out of the bible, if you had to circumvent a digital lock to do it. The analogy isn’t perfect, but this is a little bit like making it illegal to unscrew the back of your camera because you might use the flash to build a homemade tazer, and then taze someone. Surely it is enough to make actual piracy illegal?

Secondly, there are some obvious harms. While C-11 is admirable for providing many protections for those who want to use copyrighted materials in art, education, satire, etc., those protections are moot if the content is protected by a digital lock. Documentary filmmakers, for instance, rely on being able to circumvent digital locks on DVDs in order to take clips and use them in their own work. Under C-11 the use of the content would be legal, but breaking the lock to get at it would not. Educators who reproduce content for their students would be thrown into legal limbo. Mashup artists would be breaking the law every time they tried to use a 30 second clip of a song, if using that clip required them to break a digital lock.

We shouldn’t be lending the law to enforce the arbitrary restrictions decided upon by music labels and other content distributors. It isn’t even clear that digital locks and other DRM software are necessary or useful, as Steve Jobs argued in this 2007 letter. In 2009, Apple dropped all of the DRM on music sold through iTunes. They seem to be doing ok.

Lastly, don’t just take my word for it. Michael Geist has a long list of groups opposed to the digital lock provision here.

Is C-11 just like SOPA?

The only honest answer to that question is a resounding “No.” The blog post I linked to in the first paragraph, as well as many others along the same lines, claim that secret changes are being made to C-11 by American lobbyists. If this is happening, I haven’t been able to find any evidence of it.

All of the articles and blog posts I could find on introducing SOPA-like elements to C-11 track back to this blog post by Michael Geist. The only evidence he provides is a music industry document (pdf) from a year ago, listing some of the changes that a particular group would like to have been made to Bill C-32, the previous attempt at copyright law reform. Maybe Michael Geist knows things we don’t, and has evidence he hasn’t posted on his blog that actually shows similar suggestions being made to the current bill - you’ll have to take his word on it. And if not, he’s guilty at least of using rather misleading language in that post.

This document doesn’t prove that these changes are being considered now, and it certainly doesn’t prove that the government would accept them and include them in their amendments. The fact is, C-11 doesn’t currently include these SOPA style provisions. It would be better if criticism of the bill focused on the actual problems with it, rather than try to rely on unsubstantiated rumour and the infamy of that particular acronym. If the government does not propose any SOPA style amendments to C-11, those who ranted and railed about american influence and evil lobbyists are going to look awfully silly, and the rightful criticism of the actual problems in C-11 will have been undermined.

This is much bigger than C-11

Even if there is little proof that American lobbyists are currently pursuing specific changes to C-11, it is nonetheless disturbing that our government is willing to work so closely with foreign interests in ways that are directly opposed to the interests of Canadian consumers.

A 2009 cable released by Wikileaks has Tony Clement’s former director of policy suggesting a “bad cop, good cop” routine to try and manage Canadian public opinion. She told US officials that if they added Canada to their official “watch list’ of nations that are lax on copyright enforcement, it might create pressure in Canada for copyright reform. A few days later, Canada was added to that very list. In a 2006 wikileaks cable then-Industry minister Maxime Bernier told US officials that they would have a chance to see any new copyright legislation before it shown to parliament, presumably to ensure that it was acceptable to them. As the ambassador states in that 2006 cable, creating stricter IP enforcement is one of the US’s greatest priorities in Canada. It’s certainly likely that the same pressures are today influencing our government’s deliberations over C-11, although we have yet to see any specific amendments. 

Other than as a way to placate our southern neighbours, it isn’t clear why Canada needs stricter copyright enforcement rules like digital lock enforcement. Despite being a relatively small nation, we are the 6th largest market for music in the world. A third of all music sales in Canada are digital, and digital sales grew 14% in 2010 and 13% in 2009. It certainly appears that Canadian consumers are more than willing to pay for music online. It is simply false to say that piracy is killing the music industry.

Beyond Canada, it’s also unclear that piracy is the massive problem it is made out to be. The number of movies, albums, books and videogames produced today is greater than ever before. Many artists and authors are now, through the internet, able to self publish and retain more of their own profits. Entertainment spending as a percentage of income has risen, and employment in the entertainment industry has risen as well. There’s a good comprehensive look at the data on all of this here. There is also evidence that filesharing has had little impact on the sale of music, but has helped create demand for other goods produced by artists (e.g. concerts, merchandise, etc)

What can you do about it?

Talk to your friends about it! Circulate this blog post, even.

Then, you might want to contact your MP about it. You may also want to write the members of the C-11 legislative committee, who are:

  • Tyrone Benskin (Jeanne-Le Ber, Que.)
  • Andrew Cash (Davenport, Ont.)
  • Pierre Nantel (Longueuil-Pierre-Boucher, Que.)
  • Scott Armstrong (Cumberland-Colchester-Musquodoboit Valley, N.S.)
  • Peter Braid (Kitchener-Waterloo, Ont.)
  • Paul Calandra (Oak Ridges-Markham, Ont.)
  • Dean Del Mastro (Peterborough, Ont.)
  • Mike Lake (Edmonton-Mill Woods-Beaumont, Alta.)
  • Phil McColeman (Brant, Ont.), Rob Moore (Fundy Royal, N.B.)
  • Geoff Regan (Halifax West, N.S.
  • Charlie Angus (Timmins-James Bay, Ont.)

And then, because I could be wrong about all of this, read what other people have to say:

Michael Geist’s general introduction to C-11

National Post article on Digital Locks

Canadian Bar Association report on C-11 (pdf)

C-11 itself