moore

Canadian Heritage Minister James Moore has told the Canadian Press that the government plans to reintroduce Bill C-32 in "exactly the same form" as the legislation that died on the order paper with the election call earlier this year.  Moore suggested that the government plans to pick up where it left off with the same bill and a legislative committee that will not call groups that appeared during the last round of hearings. That suggests the bill will be on the fast track as the committee heard from dozens of groups on Bill C-32 over several months in late 2010 and early 2011.

Moore was also asked about the Wikileaks cables and the revelations of Canada caving to U.S. pressure on digital lock rules.  He argued that elements of the bill run contrary to what the U.S. prefers. While that is true with respect to ISP liability, that issue is seen as secondary by the U.S., which is far more focused on digital locks.  On digital locks, Bill C-32 was precisely what the U.S. was looking for and contrary to what the government heard during its national copyright consultation.

Since the introduction of Bill C-32, I have consistently argued that the digital lock provisions are far more restrictive than what is required under the WIPO Internet treaties.  Now two recent developments in the U.S. demonstrate that the Canadian proposal is also considerably more restrictive than what is found in the U.S.

First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an "access control" (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought.  With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.

In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner.  This is very similar to what many groups have been arguing for in the context of Canadian legal reform.

NDP MP Charlie Angus has issued a lengthy letter to Canadian Heritage Minister James Moore and Industry Minister Tony Clement that challenges them on the digital lock provisions in Bill C-32. In a release on the letter, Angus states "the digital lock provisions will subject Canadians to arbitrary limitations on their legal rights of access. The government is trying to create the impression that this unbalanced approach to digital locks is necessary in order to bring Canada into compliance with WIPO and the Berne Convention. Nothing could be further from the truth." He adds: "The government is establishing a two-tiered set of rights. Bill C-32 offers rights that consumers will be restricted from exercising. These provisions make a mockery of the claim that the bill is balanced and pro-consumer. Either the government has a faulty understanding of international treaty obligations or is looking to use these existing treaties as a cover to pursue a specific political agenda. The New Democratic Party will challenge any provisions that would lead to unbalanced and arbitrary copyright legislation." The letter delves into much greater detail on the digital lock issue, discussing how there is flexibility at international law with Angus emphatically stating "I believe the government will be unable to produce evidence that these onerous digital lock provisions are the result of existing treaty obligations." As result, Angus makes a formal request that the government seek an opinion from WIPO on the issue of exceptions to digital locks.