RSS FeedThe stakes of copyright reform
Not many government bills cause so much debate as C-32—the legislation to amend Canada’s Copyright Act—introduced on June 2, 2010. One of C-32’s most contentious innovations is a complete ban on bypassing digital locks on electronic content. James Moore, a federal Minister, said that C-32 offered “a common-sense balance between the interests of consumers and the rights of the creative community.” But his opponents believe Moore’s “common sense” will empower copyright holders and take away traditional rights of consumers.
C-32 is not the first attempt to revise Canada’s Copyright Act. The most recent reform effort began during the previous federal government in 2005. C-32 predecessors, Bills C-60 and C-61, died as a result of a collapsed government and a dissolved parliament. Many opposed the reforms, and Michael Geist, a University of Ottawa law professor, became an intellectual leader of the protest movement.
The government has said the current law is outdated. One letter sent to constituents mentioned that “Canada has been placed on piracy watch lists and our intellectual property protections are compared with those of countries like China, Russia and Dubai.” The government justified the reform by the need to comply with international treaties that it signed on behalf of Canada. There are also allegations that the Canadian government acted under pressure from the US government and the copyright lobby.
This reform will decide issues that ultimately concern everyone. Copyright is an exclusive right to copy or distribute a work. The flip side of someone’s copyright is everyone’s duty to respect it by not copying or distributing the copyright holder’s work without permission. Pretty much any original product of human expression is a work protected by copyright, including movies, music, books, and even your emails.
Copyright’s prohibition on copying would be draconian if some exceptions didn’t exist. Traditionally, “fair dealing” is one. The law has entitled us to copy parts of someone’s work for criticism, review, study, or similar activities. Just like copyright is a right of content owners against content consumers, fair dealing is a right of consumers against owners. Quoting from books, showing films clips, playing song excerpts, photocopying a few pages from a journal are essential to the development of arts and science and to our self-reflection as a society. If we can’t copy anything, we can’t spread information, and curbing the flow of information with constant payments to copyright holders will curb ideas and free expression. Fair dealing is important, and it is our right.
Copyright owners’ or their partners use technological protection measures (TPMs) to limit our right to fair dealing. They can encrypt their content so we can’t copy it. Most DVD films are an example. Owners can use proprietary formats that only sanctioned technology can access. Amazon does it with its e-books, which only Amazon Kindle can open. Hardware makers can restrict their devices to accept only permitted content. Apple screens each and every iPhone application before allowing it into its App Store.
You would expect the law to protect our traditional rights to fair dealing in those cases. And in some countries, to take the example of mobile phone locks, the law regulates or prohibits this practice. But in most countries, including Canada, the law doesn’t stop copyright owners or their partners from locking content or devices up. Such locks would make the right to fair dealing meaningless if circumvention technologies didn’t exist. They allow consumers to bypass digital locks on electronic content.
The big deal about C-32 is that it bans circumvention under penalty of fines or jail. Not only does C-32 ignore TMPs’ gutting of fair dealing rights, but it also punishes those using circumvention for fair dealing. C-32 turns consumers’ fair dealing rights into privileges granted at copyright owners’ discretion. If owners choose to unlock their content, fair dealing is possible. If they use TPMs, it’s not. If C-32 is passed, the independent statutory right to fair dealing will cease to exist.
Some people use circumvention to make illegal copies of movies, music, software, etc. But to choke a long-established right because the entertainment industry loses profits is an overkill. Go after illegal distributors, strengthen enforcement of existing laws but don’t give the copyright lobby powers to regulate fair dealing. Do we as a society want to give so much control over information flow, and by extension essentially over thought and expression, to an industry group?
(Post sponsored by AdviceScene)
Privacy and .ca
For years, if you registered a .ca domain, anyone could see your name, address and email in online “whois” databases. In 2008, the Canadian Internet Registration Authority (CIRA) restricted access to this information. Internet law guru Michael Geist hailed early drafts of the CIRA’s new whois policy as “a model for domain name registries around the world”. Still, in a last-minute change, CIRA allowed access to a domain owner’s identity for parties claiming IP infringement by the domain name. In response to Professor Geist’s accusation of a “stunning setback for privacy”, CIRA’s President and CEO Byron Holland called the new policy “thoughtful” and “effective” with the “best privacy protection in the world”.
Does CIRA’s whois policy strike the right balance between registrants’ privacy and IP owners’ rights?
Yes, CIRA cites the need to fight cybersquatting in defense of its disclosure policy. Registering domains for the sole purpose of reselling at a premium is a common problem on the internet. Few short domain names are now openly available for legitimate purposes. A more sinister extension of cybersquatting is phishing – posing as a third party to obtain confidential information such as passwords.
Yes, CIRA’s disclosure policy also protects IP rights. It simplifies contacting alleged infringers and helps resolve IP disputes outside of court. The opportunities for IP infringement in domain names alone are huge due to the nature of the internet. Any alternative dispute resolution can help relieve a potentially large burden on the justice system.
But there are flaws in CIRA’s whois policy.
Disclosure without consent impairs registrants’ privacy. It is also probably unlawful. CIRA’s disclosure policy does not meet the conditions in s. 7(3) of the Personal Information Protection and Electronic Documents Act, which contains the exhaustive list of circumstances when disclosure without consent is allowed in the private sector.
CIRA’s policy also undermines the freedom of speech. Whistleblowers or political activists will lose their anonymity unduly if they register a domain name referring to the organization they criticize. Instead of having to go through court, claimants need only show CIRA reasonable belief of IP infringement to obtain the registrant’s identity.
Registrants’ privacy and freedom of speech suffer irrevocably, while IP owners retain their rights and avenues for pursuing infringers regardless of CIRA’s cooperation. The barrier to obtain personal information is low. CIRA does not specify how or whether it considers merits of infringement claims. Frivolous claims that wouldn’t make it to courtroom can survive under CIRA’s laxer procedures. Citing the need to contact registrants is unreasonable because CIRA already passes electronic messages to registrants via its website. It should also be able to send regular mail on behalf and at the expense of any IP claimants.
CIRA owes a statutory duty to registrants who entrust it with their personal information. Among all the options to facilitate resolution of IP disputes, CIRA chose one that seems unbalanced and not in accord with the privacy legislation.
Data centres instead of car plants
Michael Geist proposed a digital strategy for Canada in Toronto Star on Saturday. It’s a big topic that we should definitely write more about here on Law is Cool. But let me just say one thing for now: Canada could be a fantastic global data centre haven. Here are two reasons: cold climate and privacy laws. And there are no border wait times for digital goods!
The “Letters” of the Law for 2008
Michael Geist has an article in the Toronto Star on tech related issues from the past year.
There was rarely a dull moment over the past twelve months in law and technology with no shortage of legislative proposals, controversial court cases and public battles over the future of the Internet in Canada. A look back at 2008 from A to Z…
CIRA Policy is Not the End of Web Annonymity
Michael Geist of the University of Ottawa law commented today on the new policies by the Canadian Internet Registration Authority (CIRA) regarding individual internet registrants.
He had previously come out in support of their position, but it appears as if CIRA is backtracking on some of their changes.
CIRA is attempting to create a balance between privacy concerns of members of the public registering domain names, and access by those requiring legitimate access to their identity.
As before, information can be provided to law enforcement, and with the spread of hate crimes, threats, fraud, and other abuse on the Internet, this access will likely be increasingly utilized.
But access is also provided to trademark, copyright and patent interests that believe their intellectual property rights have been infringed.
Geist argues that the trademark changes violate Canadian privacy law, and whistblowers setting up a site against their company would be unnecessarily exposed,
Under the new CIRA policy, if they use fake registrant information, they risk losing the domain. On the other hand, the back-door exception means that the trademark holder can easily uncover the identity of the registrant since CIRA will simply hand over this information.
It’s actually not that easy.
The only disputes that CIRA states they will even contemplate a disclosure are when the use:
- infringes Requestor’s Canadian: (i) registered trademark, (ii) registered copyright,
or (iii) issued patent; - infringes Requestor’s Canadian registered (Federal or Provincial) corporate,
business or trade name; or - is making use of the Requester’s personal information without their knowledge or
consent to commit a crime (such as fraud, theft or forgery), to procure money,
credit, loans, goods or services without authorization. (Identity Theft)
Maureen Cubberley, former chair of the CIRA board of directors, has explained that it’s intended for cybersquatting, resale of domain names for profit, and malicious registrations towards competitors,
It’s limited to ‘bad faith’ registrations…
What we’ve done is make an exhaustive list of where the policy would apply in these situations.
Even then, such disclosures would only be made after attempts to contact the individual and resolve the dispute in other ways has been ineffective. There is even a 60-day period where parties can challenge a ruling, and take it to the courts beyond that.
A more valid concern would be social justice advocates attacked for their work by the larger public or major corporations. But as long as a person does not misappropriate a trademark or name or misuse personal information, it’s unlikely that any form of widespread abuse would occur by CIRA.
One of Geist’s more credible issues would be the arbitration process, because panels with a single arbitrator chosen by the arbitrator are more likely to favour with the complainant – in 83% of the cases. A panel with several individuals chosen by both parties is more likely to have a balanced decision.
But that’s exactly the process that CIRA is adopting.
Although complete annonymity and the ability to whine on nearly any subject imaginable might be slightly curtailed, especially when posing as a corporate entity, web hosters would also have a greater sense of responsiblity more akin to the printed press.
They now know that if they abuse their priviledges they will eventually be called to task.
And we’re forgetting one thing.
The new policy would only apply to “.ca” domains, which are still barely used even among the Canadian public.
Geist did predict that if these trademark changes were not made they would,
…instantly catapult the dot-ca into a global leadership position. With more than a million Canadian domain name registrations, the resolution of the WHOIS issue ensures that the Canadian domain name space is set for continued growth as it now features a “privacy advantage” over other domains struggling to strike a similar compromise.
Tightening privacy issues may have promoted the use “.ca” on the Internet, but for now we’re in just about the same place as everyone else, which is probably exactly where we should be.
