Bill C-61 & Copyright Law in Canada

Putting the Internet Genie back in bottle?

Discussion host: Russell McOrmond Involved in Free Software movement since 1992 Self-employed consultant since 1995 Canada-DMCA-Opponents started in summer 2001 Host for Digital Copyright Canada Co-coordinator for GOSLING: Getting Open Source

Logic Into Governments Policy coordinator for CLUE: Canada's Association

for Open Source

Summary

A little bit of Copyright history What recently changed? What would a good response look like? What was the response? Election 2008 Open discussion – the real point of the evening!

Standard Disclaimers

IANAL (I Am Not A Lawyer) TINLA (This Is Not Legal Advise) While my passion is law and public policy, my

formal background is in technology If I use acronyms which aren't clear, please

interrupt and force me to clarify

Tiny bit of Copyright History

Copyright was invented after the advent of the printing press (Johann Gutenberg in ca. 1439)

Charles II of England passed the Licensing Act of 1662

British Statute of Anne (1710) suggested rights of the author

Berne Convention accepted in Berne, Switzerland in 1886. Became WIPO treaty #1 when WIPO founded in 1967

Canada's first Copyright act in 1921, was UK

New technology: sound recording In a submission to a congressional hearing in

1906, composer John Philip Sousa argued:

“These talking machines are going to ruin the artistic development of music in this country. When I was a boy...in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

Government response to sound recordings?

Since most composers were not willing to give permission to record, many governments stepped in with a “compulsory licensing” system

Under compulsory licensing a composition could be recorded without permission, as long as a government set royalty rate was paid to composer

Note: Canada had such a system in the past, but it is no longer needed as composers license their works

Compulsory licenses in Canada

Compulsory license for performers and makers of sound recordings for public performance and communication by telecommunications (s.19)

Retransmission (cable television, but not “new media”) (s.31)

Private Copying of sound recordings (s.79 - s.88)

New technology brings new exclusive rights

Performers and sound recording makers given new “neighbouring rights”

Recorded music has 3 classes of copyright holders: composers, performers and “makers”

Broadcasters given copyright in their broadcasts, layered above the copyright holder of the underlying content

New technology: VCR

Jack Joseph Valenti, president of the MPAA, told a congressional panel in 1982:

"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

Court response?

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) clarified that time shifting is Fair Use

USA's Fair Use

Copyright Act of 1976, 17 U.S.C. Section 107

“fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Criteria: (non)commercial, nature of work, amount used, market effect

Canada's Fair Dealings

“Fair dealing for the purpose of research or private study does not infringe copyright.”

“criticism or review” and “news reporting” (w/ attribution)

Does not use phrase “such as” or “including” No motive of gain (commercial) Institutional exceptions for educational

institutions are outdated as education is not confined to specific institutions.

New technology: personal communications devices

Cost of communications technology dropped such that average citizens can own

Copyright law set up for a time when capital costs meant that the only people who could infringe copyright were commercial entities

Incumbent copyright holder most often refusing to license socially beneficial uses of existing work. We have all heard the references to the word “theft” to talk about everything from music P2P to YouTube

A historically consistent response?

Use compulsory licensing and/or clarifying Fair Dealings (expanding to fair use) to enable socially beneficial uses Adopt living Fair Use, and further clarify that private

time, device, and format shifting are fair, including “truly private” copying of multimedia

Adopt compulsory licensing for public on-demand and P2P (Songwriters proposal), mashups, user enhanced content (YouTube), etc

Actual Government proposals thus far

C-61 carved performers and makers out of s.19 compulsory licensing for on-demand communication (permission now clearly required, and permission not often granted)

Legal protection added to “technological measures” which lock down content and devices against interests of citizens

Add clarity to Fair Dealings that technological measures and contracts trump fair dealings in many cases (opposite to US DMCA which clarified that TMs do no remove Fair Use)

Understanding“technological measures”

There are 4 things in my hand: tool for understanding technical measuresAll 4 have owners, all 4 can have “technical measures” applied to them

3) Hardware: CD/DVD players, TV, phones, computers, cameras, ...

4) Software

1) Medium: CD's, DVD's, sometimes nothing (downloads)

2) Content: music, movies, text,software, ...

Medium/Content

Content is passive, and can not make decisions on its own Content can be manipulated in various ways to accomplish

various goals Cryptography: convert ordinary content (plaintext) to

gibberish (cyphertext). Used for confidentiality, integrity, authentication, signatures

Watermarking: embed information in other data. May be visible/invisible, used to identify data, confidential message

At the other end of a “download” is a (hopefully) secured computer/network

Hardware/Software

Hardware simply follows instructions in the form of software, and is where any “decisions” or other activity happens. Who chooses software controls hardware!

Computer security is all about ensuring that only authorized software runs, or that only authorized persons are able to run software

Authentication: Something you have (ID card, key), something you know (password), something you are (biometrics)

Data stored within hardware (disk drives, flash memory) can be secured as with any other content

How did we get where we are?

1994/1995 US National Information Infrastructure, Working Group on Intellectual Property Rights

NII Copyright Protection Act of 1995 1996 WIPO treaties: WIPO Copyright Treaty

(WCT), WIPO Performances and Phonograms Treaty (WPPT)

1998 USA DMCA 2005 C-60, 2008 C-61

Where are we going wrong?

Consultations leading to NII, WIPO treaties, DMCA and C-60/C-61 included only (or was dominated by) incumbent stakeholders

Incumbent stakeholders not concerned about good public policy or interests of creators/citizens, but about protecting their existing businesses from change/competition

Recent changes in technology created entirely new stakeholders who are not adequately represented in policy discussions. Governments largely “representing” industry, not citizens.

Election 2008 Individuals important, not parties NDP is best example

From 2001 to 2004 the critic responsible for copyright from the NDP was journalist, playwright, and writer Wendy Lill.

author, broadcaster, editor, journalist, musician, negotiator, and singer Charlie Angus elected in 2004

Party flipped from being lock-step with incumbent industry to being best ally in parliament

We need at least one Charlie Angus in every party!

Questions of candidates

Asked Candidates in: Kitchener – Conestoga, Kitchener – Waterloo, Kitchener Centre

“Imagine a bill which said that car owners who wish to use public roads are no longer allowed to drive themselves, or choose their own drivers...Do you believe that this is an appropriate response to copyright infringement, or any other unlawful uses of information technology?”

Your CandidatesKitchener Centre Kitchener – Conestoga Kitchener – Waterloo

Conservative Harold Albrecht Peter Braid

Green

Liberal

NDP Rod McNeil

CAP

Communist

Libertarian

Independent

Stephen WoodworthJohn Bithell Jamie Kropf Cathy MacLellan

Karen Redman Orlando Da Silva Andrew Telegdi

Oz Cole-Arnal Cindy JacobsenKyle James Huntingdon

Martin Suter Ramon Portillo

Jason CousineauAmanda Lamka Mark Corbiere

Responses?

(silence is deafening)

Did you hear from them?

What will your response be?

Links http://digitalcopyright.ca http://www.faircopyrightforcanada.ca/

Includes Kitchener-Waterloo Chapter http://www.onlinerights.ca/ http://www.musiccreators.ca

http://www.appropriationart.ca http://www.cippic.ca http://michaelgeist.ca