Skip to Content

Copyright Microsite - About the Canadian DMCA

Tuesday July 1, 2008
61 Reforms to C-61, Day 7: Time Shifting Provision Prohibits Network-Based PVRs
In the months leading up to Bill C-61, Telus consistently argued for a "living" fair dealing provision that could adapt to changing technologies.  In particular, the company noted its interest in providing a network-based PVR that would allow customers to record and store programs that reside on computers that it hosts.  That network-based approach of relying on centralized computers - often referred to as cloud computing - is one of the hottest trends in computing as companies look for efficiencies and consumers seek out convenience.  Yet Bill C-61 isn't just oblivious to these developments - it is downright hostile.  The time shifting provision includes a specific reference to a network-based video recorder service that explicitly excludes such services from its scope. In other words, the legislation is complete rebuke to Telus' hope to offer such a service.  As I'll discuss in the coming weeks, it does not end there, however.  The legislation does nothing to facilitate network-based computing, instead envisioning a world in which format shifts are limited to nearby devices that we own.  Shifting your music to an iPod may be possible (provided that you meet a host of requirements), but shifting to a network-based storage facility does not appear to be in the cards.  The future of computing may be on the network, but Bill C-61 does its best to erect barriers toward that vision.
61 reforms, day 7 time shifting

In the months leading up to Bill C-61, Telus consistently argued for a "living" fair dealing provision that could adapt to changing technologies.  In particular, the company noted its interest in providing a network-based PVR that would allow customers to record and store programs that reside on computers that it hosts.  That network-based approach of relying on centralized computers - often referred to as cloud computing - is one of the hottest trends in computing as companies look for efficiencies and consumers seek out convenience. 

Yet Bill C-61 isn't just oblivious to these developments - it is downright hostile.  The time shifting provision includes a specific reference to a network-based video recorder service that explicitly excludes such services from its scope. In other words, the legislation is complete rebuke to Telus' hope to offer such a service.  As I'll discuss in the coming weeks, it does not end there, however.  The legislation does nothing to facilitate network-based computing, instead envisioning a world in which format shifts are limited to nearby devices that we own.  Shifting your music to an iPod may be possible (provided that you meet a host of requirements), but shifting to a network-based storage facility does not appear to be in the cards.  The future of computing may be on the network, but Bill C-61 does its best to erect barriers toward that vision.

Thursday June 12, 2008
The Canadian DMCA: Check the Fine Print
As expected, the Canadian DMCA is big, complicated, and a close model of the U.S. Digital Millennium Copyright Act (Industry Canada provides a large number of fact sheets here).  I'll have much more to say once I've had a careful read, but these are my five key points to take away: 1.   As expected, Prentice has provided a series of attention-grabbing provisions to consumers including time shifting, private copying of music (transferring a song to your iPod), and format shifting (changing format from analog to digital).  These are good provisions that did not exist in the delayed December bill.  However, check the fine print since the rules are subject to a host of strict limitations and, more importantly, undermined by the digital lock provisions.  The effect of the digital lock provisions is to render these rights virtually meaningless in the digital environment because anything that is locked down (ie. copy-controlled CD, no-copy mandate on a digital television broadcast) cannot be copied. As for every day activities like transferring a DVD to your iPod - those are infringing too. Indeed, the law makes it an infringement to circumvent the locks for these purposes. 2.   The digital lock provisions are worse than the DMCA.  Yes - worse.  The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent.  While Prentice could have adopted a more balanced approach (as New Zealand and Canada's Bill C-60 did), the effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM'd book, or even unlocking a cellphone.  While that is the similar to the U.S. law, the exceptions are worse.  The Canadian law includes a few limited exceptions for privacy, encryption research, interoperable computer programs, people with sight disabilities, and security, yet Canadians can't actually use these exceptions since the tools needed to pick the digital lock in order to protect their privacy are banned.  In other words, check the fine print again - you can protect your privacy but the tools to do so are now illegal.  Dig deeper and it gets worse.  Under the U.S. law, there is mandatory review process every three years to identify new exceptions.  Under the Canadian law, its up to the government to introduce new exceptions if it thinks it is needed. Overall, these anti-circumvention provisions go far beyond what is needed to comply with the WIPO Internet treaties and represents an astonishing abdication of the principles of copyright balance that have guided Canadian policy for many years.  3.   The other headline grabber is the $500 fine for private use infringement.  This will be heralded as a reasonable compromise, but check the fine print.  Canadian law already allows a court to order damages below $500 per infringement, so the change may not be as dramatic as expected (though $500 in damages is the maximum for private use infringement).  Moreover, it is already arguably legal to download sound recordings in Canada.  Under the proposal, there are exceptions for uploading or posting music online (ie. making available) and even the suggestion that posting a copyright-protected work to YouTube could result in the larger $20,000 per infringement damage award. 4.   The ISP provisions are precisely as expected with a statutory notice-and-notice system.  However, check the fine print.  The role of the ISP may be undermined by the Anti-Counterfeiting Trade Agreement, which the government trumpets in its press release. 5.   The education community received several provisions that are largely gutted by the fine print.  For example, library materials can be distributed in electronic form, but must not extend beyond five days.  In other words, it turns librarians into locksmiths.  Moreover, there is an Internet exception that educators wanted but it does not apply for any works that are either password protected or include a notification that they cannot be used.  In other words, online materials that are available under a Creative Commons license are fair game (as they are already), but most everything else is still potentially subject to a restriction.  This was precisely what many feared - rather than pursuing the far superior expansion of fair dealing, the education community got a provision that does little to enhance classroom learning. I'll have more to say soon, but the takeaway is that the DMCA provisions are worse than the U.S. and the consumer exceptions riddled with limitations as the government promotes a strategy of locking down content and launching lawsuits against Internet users.
canadian dmca fine print

As expected, the Canadian DMCA is big, complicated, and a close model of the U.S. Digital Millennium Copyright Act (Industry Canada provides a large number of fact sheets here).  I'll have much more to say once I've had a careful read, but these are my five key points to take away:

1.   As expected, Prentice has provided a series of attention-grabbing provisions to consumers including time shifting, private copying of music (transferring a song to your iPod), and format shifting (changing format from analog to digital).  These are good provisions that did not exist in the delayed December bill.  However, check the fine print since the rules are subject to a host of strict limitations and, more importantly, undermined by the digital lock provisions.  The effect of the digital lock provisions is to render these rights virtually meaningless in the digital environment because anything that is locked down (ie. copy-controlled CD, no-copy mandate on a digital television broadcast) cannot be copied. As for every day activities like transferring a DVD to your iPod - those are infringing too. Indeed, the law makes it an infringement to circumvent the locks for these purposes.

2.   The digital lock provisions are worse than the DMCA.  Yes - worse.  The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent.  While Prentice could have adopted a more balanced approach (as New Zealand and Canada's Bill C-60 did), the effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM'd book, or even unlocking a cellphone. 

While that is the similar to the U.S. law, the exceptions are worse.  The Canadian law includes a few limited exceptions for privacy, encryption research, interoperable computer programs, people with sight disabilities, and security, yet Canadians can't actually use these exceptions since the tools needed to pick the digital lock in order to protect their privacy are banned.  In other words, check the fine print again - you can protect your privacy but the tools to do so are now illegal.  Dig deeper and it gets worse.  Under the U.S. law, there is mandatory review process every three years to identify new exceptions.  Under the Canadian law, its up to the government to introduce new exceptions if it thinks it is needed. Overall, these anti-circumvention provisions go far beyond what is needed to comply with the WIPO Internet treaties and represents an astonishing abdication of the principles of copyright balance that have guided Canadian policy for many years. 

3.   The other headline grabber is the $500 fine for private use infringement.  This will be heralded as a reasonable compromise, but check the fine print.  Canadian law already allows a court to order damages below $500 per infringement, so the change may not be as dramatic as expected (though $500 in damages is the maximum for private use infringement).  Moreover, it is already arguably legal to download sound recordings in Canada.  Under the proposal, there are exceptions for uploading or posting music online (ie. making available) and even the suggestion that posting a copyright-protected work to YouTube could result in the larger $20,000 per infringement damage award.

4.   The ISP provisions are precisely as expected with a statutory notice-and-notice system.  However, check the fine print.  The role of the ISP may be undermined by the Anti-Counterfeiting Trade Agreement, which the government trumpets in its press release.

5.   The education community received several provisions that are largely gutted by the fine print.  For example, library materials can be distributed in electronic form, but must not extend beyond five days.  In other words, it turns librarians into locksmiths.  Moreover, there is an Internet exception that educators wanted but it does not apply for any works that are either password protected or include a notification that they cannot be used.  In other words, online materials that are available under a Creative Commons license are fair game (as they are already), but most everything else is still potentially subject to a restriction.  This was precisely what many feared - rather than pursuing the far superior expansion of fair dealing, the education community got a provision that does little to enhance classroom learning.

I'll have more to say soon, but the takeaway is that the DMCA provisions are worse than the U.S. and the consumer exceptions riddled with limitations as the government promotes a strategy of locking down content and launching lawsuits against Internet users.

Monday June 2, 2008
The Unofficial Canadian DMCA Background Document
Multiple sources advise that Industry Minister Jim Prentice's current plan is to introduce the Canadian DMCA this week, likely on Wednesday.  While things could change, it would appear that Prentice's communication strategy is to do as little communicating as possible. Plans for a possible press conference have apparently been put on hold given concerns that the press might actually ask questions and Prentice has even entertained thoughts of shuffling the bill quickly to a committee for summer hearings so that he would not have to deal with the issue all summer long. The Minister will also head for Japan and South Korea late the following week as part of the OECD Future of the Internet Economy conference, so out-of-sight, out-of-mind. What do we get instead?  Likely a press and MP briefing in a lockup just prior to the release of the bill, which will probably happen later in the afternoon (government bills are tabled after 3:00 on Wednesdays) to minimize the opportunity for critical comment in the immediate news cycle. While Prentice presumably hopes that this is a one-day story, my guess is that he is wrong.  There is no local open house this time round, but Prentice is planning his annual Calgary Stampede breakfast for July 5th.  Further, the OECD is inviting anyone to pose comments or questions about the Internet directly to the Minister on its YouTube page with the Ministers asked to react to the best videos at the OECD conference in South Korea. Given the apparent effort to control the media spin, I thought it would be useful to anticipate the likely talking points in the Canadian DMCA backgrounder along with a broader perspective featuring things Prentice probably won't say.  These include:


The bill is the result of extensive discussions with the Minister of Canadian Heritage to ensure that the Canadian approach strikes the right balance between protecting creators and ensuring appropriate access [in reality, the bill as drafted last December was only modestly amended to include a few user-oriented provisions such as time shifting.  As mandated by the U.S. and willingly followed by Prime Minister Harper and Prentice, the DMCA-like anti-circumvention provisions remain largely unchanged].

The bill includes important provisions for consumer rights such as time shifting [while long overdue, the time shifting provisions are rendered ineffective in the digital environment by the bill's anti-circumvention provisions.  In the event that the bill also includes a format shifting provision to allow for music to be transferred to iPods, the same concern arises since copy-controlled CDs cannot be legally shifted].

The bill ensures that Canada lives up to its international copyright commitments having signed the WIPO Internet treaties in 1997 [Canada is currently fully compliant with its commitments since signing a treaty does not mandate ratification.  Further, the government will speak about "implementation" rather than "ratification" since this bill will still not allow Canada to fully ratify the treaties and sticking to implementation will enable the government to delay meeting its commitment to debating international treaties before ratification. Finally, there is great flexibility within the WIPO Internet treaties such that the Canadian approach could easily be far more balanced and still allow for eventual ratification].

The bill responds to trading partner criticisms about Canada's outdated copyright laws [While "trading partner" is just code for the U.S., two recent international studies have found that Canadian intellectual property ranks in the top half of the G8, with the World Economic Forum ranking it ahead of the U.S.].

The anti-circumvention provisions will allow business to introduce new models for the digital world [There is no evidence that these business models are not already being introduced into Canada as digital music sales growth has surpassed the U.S. for the past two years, some U.S. companies like SpiralFrog have launched first in Canada, and many businesses are abandoning DRM.  Moreover, the Business Coalition for Balanced Copyright, comprised of some of the leading Canadian businesses, has warned against adopting a U.S. DMCA-style approach].

Canada has looked to the examples of other countries, including the recent New Zealand copyright law [Unfortunately, the government is likely to adopt the more restrictive NZ time shifting provision and ignore its more flexible approach on anti-circumvention].

The government has listened carefully to the concerns of the many stakeholders and interested Canadians [The Minister has still not met with many leading copyright groups, particularly those representing consumer and education interests].

The bill contains important anti-circumvention exceptions to protect privacy and security [Similar provisions in the U.S. have proven to be a total failure with cases such as the Sony rootkit incident leading to hundreds of thousands of vulnerable personal computers and class action lawsuits in both the U.S. and Canada. A possible provision to exempt unlocking cellphones will be similarly ineffective since the law will make it a violation to distribute the software that can be used to unlock devices.  A far more effective approach, adopted in New Zealand and in Canada under Bill C-60, would be to make the act of circumvention a violation only where it is done for the purposes of copyright infringement. In fact, NZ has even identified trusted authorities who are given explicit permission to circumvent in appropriate circumstances].

The bill protects Internet service providers with a notice-and-notice takedown system [This is true and represents an important provision.  However, recent reports on the secret negotations on the Anti-Counterfeiting Trade Agreement suggests that Canada may well agree to additional provisions that would compel ISPs to more actively monitor their subscribers].

The bill features a much-needed "making available right" as is found in many other countries [Canada arguably already has a making available right within its copyright law. Moreover, even the U.S. provision has been interpreted to require actual distribution in order to trigger the provision].

The bill is only the first step in a broader copyright reform process that will address additional issues once this bill is enacted into law [Leaving aside the fact that major copyright reform in Canada is completed once every decade, the additional issues are the further IP enforcement provisions coming our way under ACTA in response to U.S. pressure. The bigger concern are all the issues that this bill will not address - fair use (Israel recently enacted a fair use provision and Japan just announced plans to do so as well), crown copyright, educational uses, statutory damages reform, private copying (as the Conservatives promised to address), and modernizing the backup copy provision].

The bill will go through full committee hearings with interested Canadians invited to participate [assuming that the Industry Committee does not conduct hearings until the fall (summer hearings would effectively exclude many voices), the government may want to hear from the following groups, who will be less than effusive with praise:

Indeed, the challenge will be to find supporters of the legislation other than the usual copyright lobby groups and U.S. Ambassador to Canada David Wilkins.]

unofficial dmca backgrounder

Multiple sources advise that Industry Minister Jim Prentice's current plan is to introduce the Canadian DMCA this week, likely on Wednesday.  While things could change, it would appear that Prentice's communication strategy is to do as little communicating as possible. Plans for a possible press conference have apparently been put on hold given concerns that the press might actually ask questions and Prentice has even entertained thoughts of shuffling the bill quickly to a committee for summer hearings so that he would not have to deal with the issue all summer long. The Minister will also head for Japan and South Korea late the following week as part of the OECD Future of the Internet Economy conference, so out-of-sight, out-of-mind.

What do we get instead?  Likely a press and MP briefing in a lockup just prior to the release of the bill, which will probably happen later in the afternoon (government bills are tabled after 3:00 on Wednesdays) to minimize the opportunity for critical comment in the immediate news cycle. While Prentice presumably hopes that this is a one-day story, my guess is that he is wrong.  There is no local open house this time round, but Prentice is planning his annual Calgary Stampede breakfast for July 5th.  Further, the OECD is inviting anyone to pose comments or questions about the Internet directly to the Minister on its YouTube page with the Ministers asked to react to the best videos at the OECD conference in South Korea.

Given the apparent effort to control the media spin, I thought it would be useful to anticipate the likely talking points in the Canadian DMCA backgrounder along with a broader perspective featuring things Prentice probably won't say.  These include:

Is Prentice's Copyright Bill Born in the U.S.A.?

Teaser: 
With Industry Minister Jim Prentice preparing to unveil his controversial copyright bill, there has been considerable speculation about the role that the U.S. government has played in pressuring Canada to move on the copyright file. U.S. Ambassador to Canada David Wilkins has been very vocal, repeatedly, if misleadingly, claiming that Canada's copyright laws are the most lax among the G7 nations.
Date Published: 
Monday, 4 February 2008
Description: 
prentice bill born in usa
Wednesday December 5, 2007
Prentice To Oppose Canadian Universities
The Association of Universities and Colleges of Canada has issued its position paper on copyright reform.  If the bill coming next week is as expected, Industry Minister Jim Prentice will be issuing a major rejection of the concerns of Canada's higher education community.  The AUCC has listed four recommendations - no statutory damages where a person believes their use is covered by fair dealing, a limited anti-circumvention provision, an ISP safe harbour, and the creation of an exception for educational use of publicly available materials. The AUCC is likely to get only one of four (the ISP safe harbour provision, which is the top issue for the major telecom companies).  The anti-circumvention provision will be far more restrictive than the AUCC recommendation, while the government will reject the call for a new education exception.  I continue to believe that the AUCC has blundered badly on the copyright file as it should have limited its demands to three - anti-circumvention, flexible fair dealing, and an ISP safe harbour.  Instead, it wasted years calling for an ill-advised Internet exception and even today does not make the case for flexible fair dealing.  That said, the government is taking a political risk since opposing education (and by extension the provinces) is unlikely to be a winner at the ballot box. Update: Howard Knopf reports that the Canadian Association of University Teachers have adopted their position on copyright as well, focusing (rightly in my view) on anti-circumvention and fair dealing.
copyright, education, aucc

The Association of Universities and Colleges of Canada has issued its position paper on copyright reform.  If the bill coming next week is as expected, Industry Minister Jim Prentice will be issuing a major rejection of the concerns of Canada's higher education community.  The AUCC has listed four recommendations - no statutory damages where a person believes their use is covered by fair dealing, a limited anti-circumvention provision, an ISP safe harbour, and the creation of an exception for educational use of publicly available materials. The AUCC is likely to get only one of four (the ISP safe harbour provision, which is the top issue for the major telecom companies).  The anti-circumvention provision will be far more restrictive than the AUCC recommendation, while the government will reject the call for a new education exception. 

I continue to believe that the AUCC has blundered badly on the copyright file as it should have limited its demands to three - anti-circumvention, flexible fair dealing, and an ISP safe harbour.  Instead, it wasted years calling for an ill-advised Internet exception and even today does not make the case for flexible fair dealing.  That said, the government is taking a political risk since opposing education (and by extension the provinces) is unlikely to be a winner at the ballot box.

Update: Howard Knopf reports that the Canadian Association of University Teachers have adopted their position on copyright as well, focusing (rightly in my view) on anti-circumvention and fair dealing.

Monday September 11, 2006
The Most Dangerous Treaty You've Never Heard About
With government negotiators and broadcast officials descending on Geneva this week to continue negotiations on the WIPO Broadcast Treaty, my weekly Law Bytes column (Toronto Star version, homepage version) examines a proposal that started as an attempt to address the narrow issue of signal theft and has today mushroomed into a massive treaty that would grant broadcasters in some countries many new rights.  Many people are questioning the impact of the treaty, which includes an exclusive retranmission right, an extension in the term of protection for broadcasts, and the decision to make the exceptions and limitations in the treaty optional.  Indeed, even the Canadian delegation has wondered aloud whether the treaty would create a danger that some broadcasts might never fall into the public domain, effectively creating a perpetual broadcasting right. The impact of the treaty on individuals and creators could be dramatic, potentially making it more difficult to record television shows for viewing at a later time, locking up content that is otherwise in the public domain, and necessitating that film makers obtain twice as many consents for the re-use of broadcast clips.  The potential cost of the new rights is also significant, with Canadian broadcast distributors, including the major telecommunications companies that have begun offering high-definition television services, fearing that the new retransmission right alone could result in more than a half billion dollars in new royalty payments flowing out of Canada to U.S. broadcasters.

With the prospect of a diplomatic conference looming (a diplomatic conference is the last stage in the treaty-making process and a sure sign that agreement may be imminent), a coalition of critics of the proposed treaty, which include technology giants (Dell, HP, Intel, and Sony), telecommunications companies (AT&T, Verizon), library associations, and civil rights groups, went on the offensive last week.  The coalition outlined a series of concerns, most notably arguing that the treaty is a solution in search of a problem.

The broadcasting industry has thrived in recent years with an explosion of new services and revenue streams.  In Canada, the market places premium value on the industry with the sale of broadcasting companies fetching billions of dollars.  Given this success, the coalition observed that there does not appear to be any compelling need to provide the industry with a basket of additional rights.

In addition to the treaty's substantive shortcomings, the manner in which it has evolved is also cause for concern.  For the past few years, negotiators and lobbyists have quietly been working toward the treaty with minimal public input or consultation.  The U.S. Patent and Trademark Office conducted an open afternoon session last Tuesday in Washington that enabled approximately 40 supporters and critics to air their views, however, the meeting could not be recorded and no immediate broader consultation is planned.

The Canadian approach has been even more secretive.  While the USPTO was conducting its meeting, Canadian government officials held a closed conference call with a select group of stakeholders to update them on the current status of the treaty negotiations.  Canada has not conducted any public consultations on the treaty nor issued any public statements articulating a definitive Canadian position.

The column concludes by noting that over the next month, U.S. and Canadian broadcasters will unveil a slate of new television programs, hopeful that a handful will emerge as the next Desperate Housewives, Seinfeld, or American Idol.  Programs that fail to quickly find an audience, face the prospect of cancellation.  In this regard, the broadcast industry clearly understands the need to cut its losses by putting an end to programs that are not working.  Unfortunately, the same cannot be said for those negotiating the unnecessary and potentially harmful WIPO Broadcast Treaty.

wipo broadcast treaty column

With government negotiators and broadcast officials descending on Geneva this week to continue negotiations on the WIPO Broadcast Treaty, my weekly Law Bytes column (Toronto Star version, homepage version) examines a proposal that started as an attempt to address the narrow issue of signal theft and has today mushroomed into a massive treaty that would grant broadcasters in some countries many new rights.  Many people are questioning the impact of the treaty, which includes an exclusive retranmission right, an extension in the term of protection for broadcasts, and the decision to make the exceptions and limitations in the treaty optional.  Indeed, even the Canadian delegation has wondered aloud whether the treaty would create a danger that some broadcasts might never fall into the public domain, effectively creating a perpetual broadcasting right.

The impact of the treaty on individuals and creators could be dramatic, potentially making it more difficult to record television shows for viewing at a later time, locking up content that is otherwise in the public domain, and necessitating that film makers obtain twice as many consents for the re-use of broadcast clips. 

The potential cost of the new rights is also significant, with Canadian broadcast distributors, including the major telecommunications companies that have begun offering high-definition television services, fearing that the new retransmission right alone could result in more than a half billion dollars in new royalty payments flowing out of Canada to U.S. broadcasters.

Syndicate content