New Copyright Bill C-61 Rallying Canadians

Copyright reform may not seem like the sexiest of issues, but it has caught the attention of Canadians and launched itself to the front of the political agenda. The membership of Fair Copyright for Canada Facebook group surged recently and now has over 80,000 members.Swiss DCMA

The support is really astonishing in Canada. Copyright reforms have been going on throughout the world as countries try to meet international agreements. However, nowhere has the issue generated as much support as it has Canada. In Switzerland, for example, the issue seemed to receive little mainstream attention. The site No Swiss DCMA attempted to collect 50,000 signatures to force a referendum on the revision of the copyright act. They managed to get 803.

One reason for the widespread support seems to be that the proposed changes in the recently tabled Bill C-61 will impact every single Canadian. One group of people which will be particularly affected is students. From distance education to music copying, if passed, this law would make thousands copyright infringers.

Prentice at Calgary Stampede

Bill C-61 protesters questioned Jim Prentice at his Calgary Stampede breakfast. Photo: k-ideas @ Flickr

To market the bill, Industry Minister Jim Prentice has dubbed it the “made in Canada” bill (as opposed to “imported from the US DCMA” bill) and is highlighting the new provisions that most Canadians probably think are already law. The current Copyright Act:

  • “does not specifically allow you to make a copy of a book, newspaper, periodical, photograph or videocassette in order to enjoy it on another device. It also does not specifically allow you to copy music onto devices such as computers and digital audio recorders.”
  • “does not specifically allow you to record a radio or television program.”

Using your VCR may finally be “specifically allowed”! These new provisions sound great and are long overdue, but they are completely watered down by a host of limitations. Basically, anything that is digitally protected cannot be copied.

Thankfully DRM-locked music seems to be on the way out. iTunes only offers EMI music DRM-free, but Amazon, 7digital and Rhapsody are all going DRM-free. (The decision is mainly up to the record companies and they seem to be trying to knock iTunes down a few notches by helping out its competitors.)

As for DVDs, copying one you own to watch on your iPod would be illegal. After all, it’s an infringement to try and circumvent digital locks even if your purpose is private use. If you want a copy, you’ll have to buy it in a different format.

The time shifting provisions looks good as it even allows you, for instance, to PVR an on-demand program. But then the limitations kick in: “If you entered into a contract with your service provider expressly prohibiting or limiting your ability to make recordings of on-demand programs, you would have to honour the terms of that contract to the extent that it restricts this provision.” Any on-demand service could easily put a notice restricting copying when you purchase the show.Philips VR2020

For videos, the format shifting provision is limited to copying videotapes to DVDs. So even if you had an unprotected DVD, you still couldn’t make a backup of it. (In other news, VCRs are making a comeback.)

Lastly, the private music copying provision can also be curbed by contract: “You could not make a copy of a song that has been downloaded from the Internet and where you have entered into a contract that governs the extent to which you may make copies of the song. In such cases, the terms of the contract would prevail.” So those long forms you click “Agree” on when you sign up for a music site would likely prevent any copying.

Those are the attention-getting provisions which will affect most, if not all Canadians who come in contact with music, movies, television, etc. I will focus provisions that almost exclusively affect students in a future post. In the meantime, check out University of Ottawa law professor Michael Geist’s blog. He’s been spearheading the effort to inform Canadians about the copyright reform and is posting 61 reforms to C-61 over the summer.

3 Comments on "New Copyright Bill C-61 Rallying Canadians"

  1. I’m actually a member of that Facebook group.

    I am unclear about one of the provisions you discussed in the post. Could you explain it for me?

    You mention that “the private music copying provision can also be curbed by contract.”

    How does this expand contract law generally?

    In the past, the seller of media could bind the buyer to a contract stating that the buyer would not, for example, make copies of it. If the buyer violated the terms of this contract, they could be sued by the seller. Unless the new law makes it a statutory offence to violate such contracts (which I don’t think it does), then there’s nothing new here. It seems to me that all the proposed statute is doing is saying: “for greater specificity, this law does not trump private contracts.”

    If the provision was not included, it could be argued that contracts containing do-not-copy clauses were null and void for illegality. The provision simply seeks to allow buyers and sellers of music to enter into contracts on their own terms.

    Am I missing something?

  2. Lawrence you’re completely right when you say they did it for greater specificity. The reason I think it’s important though is that many people who are unaware of freedom of contract, may hear that there’s a new private music copying right, and not realize they entered into a contract removing this right when they buy music online.

    When it comes to buying online, it’s one small user, buying from a corporate giant like Apple. The contract between them is done through a click-wrap license and the user, like most people, won’t bother to read it. Apple can put anything in there and the user isn’t in a position to negotiate. And if they have an iPod, they may feel compelled to shop at iTunes Store anyways since it’s tied together.

    So I think the statement “The provision simply seeks to allow buyers and sellers of music to enter into contracts on their own terms,” is unfortunately not completely accurate in many online situations.

  3. Ok, let me rephrase: the provision simply seeks to allow buyers and sellers of music to enter into contracts on the seller’s terms.

    You’re right, of course, but this is a classic problem of contracting between a stronger and weaker party. It’s an issue that arises millions of times each day. Just about every single time that a consumer makes a purchase, they are entering into a contract for the sale of goods or services with a stronger party. How often in these situations does the buyer read the terms?

    The reality is that for practicality’s sake, the courts have, I think rightly, upheld click-wrap licences, etc.

    There is nothing new here.

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