Canadian copyright insanity

This is not one of my usual topics to blog about here, but it’s related in a number of ways (to design, authorship, and education) so I’m using this space to share my opinions and ask some questions.

The Canadian government has just tabled a new bill which would revise the Copyright Act. I’m actually reading the darn thing – the full legalese, not just the Coles Notes version they’ve provided online. You can read the critical summary at Michael Geist’s blog and his description of why this is essentially a betrayal to Canadians. More of my thoughts and questions after the break.

First, I’ll just add that it’s fascinating trying to work through how one bill modifies an existing act. It’s like a giant legal version of a diff, for those with coding background. For that matter, I found myself wishing that they would’ve simply published a page with the existing Copyright Act on one side and the modified version alongside it, the same way code diff tools work. Anyway, onto the actual content.

It adds some nice sounding provisions for Canadian consumers (timeshifting, personal copying) but overshadowing all of this is the fact that it makes it flatly illegal to circumvent any kind of digital copy protection. This means that they can say you have the right to copy a CD onto your iPod, but if that CD has copy protection then it’s illegal for you to bypass that lock required to actually make a copy.

There are even weirder provisions for educators. The bill tries to allow educators who are including (under already legal fair use) pieces of copyrighted works in their lessons, the right to broadcast or share those lessons – as would be required if you were, say, teaching via a webcast or some other videoconferencing method. But it requires these “lessons” as defined to be destroyed within 30 days of the end of the class. No exception given – suddenly teachers aren’t allowed to archive their own lessons if there is any fair-use copied work included. Not only that, but teachers must include some “reasonable” measures to prevent students from archiving or copying these lessons themselves – oh great, now any telecast classroom has to include DRM measures. This is a technological headache at best, nightmare at worst.

Libraries can sign out digital copies of works – but only if they are loaded down with DRM and set to self-destruct in five business days. Yes, now your DRM needs to know when your stat holidays take place.

I still have some open questions after reading through the bill. What’s the deal with the new bits making it an offense to transfer ownership of a “tangible copy” of a work until the copyright holder has transferred ownership once? I’m not even sure how this would happen short of someone (physically) stealing someone’s work and then selling it, but that should already be pretty obviously a crime. And why only a “tangible copy”, which seems to exclude digital downloads?

There are a lot of good changes in here – a lot of stuff in here made me happy. Too bad it’s largely undermined by the DRM / Technical Measures section which will put an effective stranglehold on whatever other fair use and private copying rights are given.

Here’s my notes dump I typed while reading through the Bill. Halfway through I start giving a quick summary of each point in the Technical Measures section.

1.(1) What is the effect of redefining "moral rights" here?

2. Are there instances of ownership of "tangible objects" being transferred
which are legal prior to this amendment but illegal afterwards?  were people
allowed to sell copies of things they didn't produce before? how does this
affect digital download purchases?

4. Old photography clause (section 10) is repealed. Is it replaced with a new
one?  Or is this removing an exception that made photos behave differently re:
corporate copyright vs original photographer copyright?

7.(1) only notable addition I can see here is more "tangible object" stuff.
why aren't they just using the "fixation" terminology? are they excluding
ownership of digital fixations?

8. Why are they duplicating the original moral rights clauses here, but only
for sound?  was there something unclear about the moral rights of sound works
earlier?  does this change anything?

17. Ok, so here is where we're "allowed" to privately copy video, print, books,
music ... unless it has DRM locks.  Also, existing allowances for recording
audio onto audio media is untouched - so copying CDs and tapes is exempt from
this clause entirely (anything already being hit by the copying tariff).

Why are internet-only broadcasts excluded from the timeshifting clause?
Why are "network personal video recorder services" excluded?  Unsure on
terminology here - is this excluding timeshifting of pay-per-view or some
specific form of digital TV?

18. Oh, man. So any "lesson" that includes any bit of copyrighted work must
be *FREAKING DESTROYED* within a month of the course ending?  So teachers
aren't allowed to archive their lessons?  This is ridiculous.  I don't even
see any exception for the teacher's own private use.

This gives otherwise fair-use copying a viral effect of forcing you to destroy
and lock down the entire "lesson".  The emphasis here seems to be on livecast
classrooms, but what about sharing notes and slides that include some fair-use
copied images?

in new 30.04 - sounds like teachers aren't allowed to print off resources from
online encyclopedias that are subscriber-only. if the encyclopedia company
themselves give educators permission, then this doesn't matter - but do they
generally do so? this is iffy.  and again, DRM trumps all in this law.

19. yay, better wording for archiving old media. something good in here

20. the '5 days only' digital clause for libraries. why the heck do they get
to decide how long a library can sign something out? why '5 business days'?
how the heck is DRM going to manage knowing a library's business days?  lame

21. Ok, ISPs and webhosts aren't infringing simply by transmitting and storing
data for others.  This is good.
... unless the ISP/host is told by a court that their client is infringing.
this is ... well, we'll see if the ISP giants like this or not.

22. It's not illegal to copy a photograph that someone made specifically for
you. Okay.

29. Why are sections 36 and 37 being repealed? was it redundant?

30.(1) Here's the infamous $500 fine - but that fine was already in place.
This is losing me a bit - falling back on the 'coles notes' version.
looks like they're actually *reducing* the fines that someone could already
sue for - unless you broke DRM, in which case, screw you, full old-school fines.

Thank goodness, they excluded schools from being sued for statutory damages.

31. The new "Technical Measures" section. This is going to hurt.
Let's sum it up as we go:

41.1(1)
(a) No breaking TMs.
(b) No offering services that break TMs, or that are "not
commercially significant" for anything other than breaking TMs.  Don't market
that you're breaking TMs.
(c) No selling or distributing anything which primarily breaks TMs, or are not
"commercially significant" for anything other than breaking TMs. Also don't
market that your product breaks TMs.

(2) The copyright owner can sue for infringement of copyright when someone
violates a TM on their work.

(3) But they can't elect for statutory damages if someone broke a TM for
private use only.

(4) But those who make TM-breaking services or tools available can have the
pants sued off of them, including statutory damages galore.

41.11
(1) Law enforcement is allowed to break TMs whenever they need to.
(2) Law enforcement is allowed to provide TM-breaking services for the purposes
of busting any suckers who use them.  (Seriously, if I find out our police are
wasting their time on TM-breaking sting operations, I will cry for our nation.)
(3) You're allowed to sell TM-breaking stuff to law enforcement.

41.12
(1) You're allowed to break TM on software if you're solely doing so to make
that program "interoperable" with other software.  Unsure what this does and
doesn't apply to.
(2) You're allowed to offer TM-breaking services for the purposes of making
software interoperable.  The clarification on the gov't notes leads me to
believe these are their reverse engineering clauses.
(3) - (7) You can share this knowledge, etc, but all of it falls apart if you
violate copyright or break any other law.

41.13
(1) - (3) You can break TMs for encryption research, but you have to obtain
the work legally and you have to notify the owner of the copyright that you're
trying to hack their DRM.

41.14
!!!! Yes, some signs of smarts!  You're allowed to break TMs to find out if
they invade your privacy, and if so to stop them from doing so.  Applies unless
the company notified you of the invasion and gives you an opt-out.
Downside: only applies to collection and transmission of personal information.
Doesn't apply to, say, rootkit DRM or other tech nightmares.
Also, you're allowed to distribute tools or offer services to clean up spyware
TMs.

41.15
You're allowed to break TMs for the purpose of assessing the vulnerability of a
computer, system or network or to correct security flaws.  Screw you, rootkit
DRM!  This is good to see.  In fact this is better than the "security testing"
summary on the govt site - you can both test AND secure your system.

You're allowed to offer TM-breaking products and services for said purpose.

You're not allowed to violate copyright while securing your system.  (However,
if you want to make personal copies or other fair-use copies of something
that's 'protected' by a rootkit or other security-hole TM, that isn't
infringement, so I guess it's okay?  Weirdly, this might mean you can legally
get past TMs for fair-use if the TMs go too far and screw up your system.)

41.16

You can break TMs for the purpose of better accessing it with perceptual
disabilities.  You can make tools / services available to do so.

41.17

You can break TMs to broadcast ephemeral reproductions (eg. radio) of a work,
unless the copyright holder makes the work available to you without a TM.

41.18 - you may get off easy if you were clueless. maybe.

41.19

Educators/libraries who convince a judge they were clueless get off scot-free.
But only if they convince the judge, after the headache and expense of a
lawsuit.

What the heck, people - why does this section not simply say that they are
allowed to break TMs for fair-use copying relating to education?  We just gave
exceptions to police, the disabled, security, reverse-engineering.  Why can't
we do the same for fair-use copying in general?  I'll write the friggin'
section myself, it wouldn't be hard.

41.2

The Governor in Council may make further exceptions to the above after
considering a bunch of stuff, such as the obvious problems I've already stated.
This is specificially even mentioning the restrictions TMs place on educators,
libraries, news reporting, criticism, etc.

So there's an open door for sanity to come in at a later time - if someone gets
around to it.  This really doesn't cut it.  This is like saying, "Okay, we see
a huge load of problems, but we'd rather offload those concerns to someone
else while we make the U.S. and our well-funded recording and movie industry
lobbyists happy."

41.21

No stripping of DRM data.  Which I guess is not quite the same as breaking a
TM or copy protection scheme.

Okay, that's it for the TM section.

Skimming past the "notice-and-notice" ISP stuff. As far as I understand it, I
have no real problem with this.  Better than "notice-and-takedown", anyway.

(back to C-61 numbers, for those wondering how I jumped from 41 to 31)
32. Libraries and educators are exempted from being criminally guilty for
breaking TMs as described in the new section 41.1.  So educators can break TMs
too, then, but no one's allowed to make tools and services available to them?
What the heck, people.
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