Bill C-32: My Perspective on the Key Issues

Law professor Michael Geist has posted an article where he offers his opinion on what he sees as the 5 key issues that are being discussed in the context of C-32. My opinion on these issues are in the C-32 FAQ, but I thought it would be interesting for me to write about the same five issues.

I am a technical person with a technical background, trying to protect the interests of fellow independent creators. This offers a mildly different perspective to these issues than Mr Geist does as a legal academic.

1. Digital Lock Provisions (anti-circumvention rules)

I have given long presentations on why legal protection for technical measures is controversial. The shortform is that TPMs protect access to content, while copyright protects activities that are done once people have access. TPMs are useless in reducing or stopping copyright infringement, but are useful for assistance in enforcing contracting terms or enabling e-commerce scenarios. As such, legal protection for TPMs should be in provincial contract and e-commerce law.

While it is true that copyright holders use TPMs in their businesses, it is also true that the use electricity. I believe TPMs belong in federal Copyright law as much as a national energy policy does.

Further, I believe that having adequate legal protection for TPMs in appropriate provincial legislation would still allow Canada to ratify the 1996 WIPO treaties.

I find most of the discussion around anti-circumvention rules to be frustrating because they are based on a lack of the most basic understanding of technology. Without a minimum level of technical knowledge, it is impossible to analyze the effect of real-world technical measures or determine what type of relationships and thus legal concepts are affected.

Please see: Protecting property rights in a digital world for an introduction.

2. Fair Dealing Reform

I agree that the current reforms are a compromise between the robust fair use regime we see in the USA, and opponents to there being any limitations or exceptions to Copyright. It should be noted that those opposed have still come out aggressively against this compromise, which itself was far closer to the views of the opponents than a middle-ground position.

I don't see why Canada needs to compromise. Far too many people mistakenly believe that Canadian copyright law is "weaker", meaning the balance tilted in favour of incumbent copyright holders, than US law. This is false for many reasons, and one of the most obvious is the USA's living fair use regime. Those who claim US law is better and stronger have no leg to stand on in opposing Canada adopting US style fair use, allowing Canadian law to be more balanced between the interests of creators and past copyright holders, and closer to what we see in the "weaker" US copyright regime.

It is important to remember that most of the limits and exceptions to copyright are not for "consumers", but there to protect the interests of creators. Groups that oppose limitations and exceptions are not protective of the rights of creators, but protective of the narrow interests of historical copyright holders: this is not the same thing.

As a creators' rights activist, I believe Canada should adopt a living fair use regime. We should not be creating excessively complex exceptions which non-experts will never be able to understand. In order for our copyright to be respected, the rules encoded in copyright must be respectable. I believe the C-32 proposals will simply induce more infringement as people are unable to navigate the excessive complexity.

3. ISP Liability

Intermediaries, whether communications service providers or device manufacturers, should not be held liable for the activities of their customers. We don't hold municipalities responsible when roads are used in unlawful activity, and providers of communications technology services and products should be treated in a similar way.

ISPs are the holder of possibly private information about customers using their service. They should be mandated to act as communications intermediaries between Copyright holders and alleged copyright infringers. They should also respond to court orders to disclose the names of customers accused of infringement.

This reasonable scenario has been encoded in the notice-and-notice regime that has been part of a few proposals in Canada. This regime should be kept.

We should ensure that the penalties for false claims of copyright infringement are adequate to deter the abuse of this claim by those seeking to censor or otherwise cause harm to others. It is wrong to assume that the alleged copyright holder is the "victim" and the alleged copyright infringer the "perpetrator".

4. Statutory Damages Reform

While I understand the need for statutory damages reform, and agree with the intent of these provisions in C-32, I am concerned with definitions of "commercial" and "non-commercial".

A growing number of business models exist where royalties are not the method of payment. Examples include the increasingly successful Free/Libre and Open Source (FLOSS). There are many commercial entities that have infringed FLOSS licenses, with some listed at the project.

Enforcement of these licenses are dependant on the existence of statutory damages, given some courts have otherwise tied damages to the expected royalties that would otherwise have been paid. FLOSS doesn't charge royalties, which would make our license agreements unenforceable.

Some proponents of royalty-bearing business models have tried to claim that royalties are the only business model that exists, and thus all non-royalty based systems are by their definition "non-commercial". We need to ensure that this problem is not imported into Canadian law. Non-royalty based business models are as legitimate and as commercial as royalty-based business models. When a commercial entity infringes copyright, statutory damages should be available.

I would be happier if statutory damages were more closely tied to the nature of the entity infringing, rather than a more subjective determination of whether the activity was "commercial".

5. Extending the Private Copying Levy

Like discussions on technical measures, much of the discussion of levies happen without necessary backgroun. They are not a tax that pays for infringement. What they are is a compulsory license for an activity that would otherwise require permission under copyright. That activity no longer needs permission, only payment at a rate set by the government through the Copyright Board.

I believe that truly private activities, such as time and device shifting of content, should not be a copyright regulated activity at all. There should be no permission, and there should be no payment. This would bring Canada more in-line with what many of our trading partners such as the USA are doing.

There are existing public activities where copyright regulation should exist, but where asking for and receiving payment isn't working or would never work. An obvious example is commercial radio where it isn't practical to negotiate royalty fees individually with all 3 copyright holding groups for recorded music.

I believe that in the short term that the public non-commercial sharing of multimedia entertainment content is an example of this type of scenario. While I wish that fellow Canadians would stop publicly sharing this content without compensation, there appears to be no sign that it will stop in the short term. Making new activities into infringement as some have proposed (and is part of C-32) will do nothing to reduce this infringement, and is far more likely to increase infringement as Copyright is seen as less and less respectable.

I believe that creating a compulsory licensing system for the online sharing of music, movies and television by individuals (not organisations, commercial or otherwise) would be appropriate. This regime would be understood as short-term, just as past compulsory licenses were short term and were repealed once the relevant copyright holders created appropriate non-compulsory licensing schemes.

I believe that the existing Private Copying regime mixes two different things: private activities which should not be regulated by copyright, and public activities which should be regulated. I would support the expansion of the regime to other public activities if the regime were clarified to remove the private activities.


Making a copy of a CD you already purchased (format shifting, backups, etc) is a private activity, and should not be regulated by at all. (Note: If there is a contract in place when acquired that seeks to limit these activities, then that is a contract issue that should be handled under contract law. This has nothing to do with copyright law, and discussing the specifics of any contract has no place in the copyright reform discussion).

Making a copy of a CD you do not own (borrowed from library or a friend) is a public activity that should be compensated.

Participating in a P2P system is a very public activity, and should be compensated through a levy system.

Selling copies of CDs you have made copies of is a clear case of commercial infringement, and should have statutory damages levelled against infringer. This should not ever be available for an exemption or compulsory license.

(See also: Analyzing when copyright levies are a good idea, and when they are a very bad idea.)

(Article republished on p2pnet, where there were comments)