C-32 committee meeting 7 thoughts.

First up this afternoon was a panel made up of representatives of the Canadian Alliance of Student Associations (CASA) and Entertainment Software Association of Canada (ESAC). Next was a panel of representatives from the Association of Canadian Publishers (ACP), Barreau du Québec, and Hon. John Manley representing the Canadian Council of Chief Executives.

I think it would have been more appropriate to have ACP and CASA on the same panel, as both were primarily (but not exclusively) concerned with fair dealings. While we did see an interesting back-and-forth initiated/hosted by Mike Lake between CASA and ESAC on TPMs, I think the back-and-forth between CASA and ACP would have been much more informative.

It is not surprising that I found the presentation from ESA to be interesting, even as I disagreed with much of it. They focused on TPMs, suggesting they want to narrow the already excessively narrow exceptions to TPMs in C-32.

They claimed they wanted to "let consumers decide" if they want to purchase content or games that are encoded with TPMs, and that TPMs should be the purview of creators.

I feel this is is disingenuous, given consumers and creators aren't able to make informed choices when DRM (Dishonest Relationship Misinformation) is at play. As I have suggested in my FAQ it is possible to make these relationships honest and fair, but this is specifically not what the ESA has been asking for. They want TPMs to be protected in copyright law, including (and possibly especially) non-owner locks applied to devices they wish to allege are "sold" to consumers.

The ESA is promoting a scenario where creators are very specifically not able to decide. The idea is that the hardware/software is locked down such that it would only execute locked/signed games. While this in theory disallows infringing games to be played, it also disallows competing games or other software to be used. This enables the hardware manufacturer, not the hardware owner, to have the final say in what software (games, etc) can or can not be used. Is this really a fair market where companies like Sony, Nintendo and Microsoft are able to pick and choose what game authors are allowed to make a living, and have the legally protected and likely entirely unregulated right to exclude competitors?

I consider this to be a situation where I am in strong disagreement as to who the "worst actors" are. While I am not apologizing for people who infringe the copyright on games, and believe this should remain illegal and better enforced, I don't believe that TPMs will do much to reduce infringement. I believe we are talking about business relationships where hardware owners are not being given keys to what they own (infringement of property rights), where vendors in one marketplace (hardware) are manipulating another marketplace (tied selling, and other aspects of out competition law), and where the contractual obligations inferred in the non-owner locks are not being disclosed to the relevant parties (circumventing balance in contract law, consumer protection, privacy, etc).

(See also: IT property rights and the Xbox-Modding case)

In discussing fair dealings, I find it interesting that both Marc Garneau and Pablo Rodriguez spoke about whether having a right to go to court is fair, and whether fair dealings might cause there to be a lot of time spent in court.

Copyright is a right for copyright holders to go to court if they believe their rights are being infringed, and fair dealings is currently only a defence against the claim of infringement in the court.

What is true is that there will be many court cases to establish the boundaries of the law any time the law is changed. The larger and more complex the changes, the more expensive and long cases will likely result. This is not really an argument against fair dealings as seemed to be suggested in the context of educational exceptions, but an argument against such excessively large and complex copyright bills.

I am unaware of individual court cases lasting more than a decade, which means that compared to how long it takes to get legislative changes through parliament (an ugly omnibus bill each decade) the legal system works at lightening speed.

There was considerable conversation about the exact scope of the User Generated Content (UGC) aspect of the bill. Most amusing was Ms. Lavallée who suggested that it was made up in Canada out of nowhere.

Ms. Lavallée is partly correct, as it is part of the "made worse in Canada" approach we see in C-32. The government created an excessively complex compromise between those who wanted an easier to understand US-style flexible fair use regime, and those who wanted no new exceptions (or no exceptions at all). I believe the excessively complex compromise will result in far more unintended infringements and expensive lawsuits than adopting a flexible fair use regime would. If we used a regime compatible with the one in the USA, then existing US case-law would more easily map into the Canadian context. A flexible fair use regime would largely obsolete the need for a specific UGC exception, just as it was US caselaw and not congress micro-managing that legalized time shifting with a VCR soon after the technology became available.

Where Ms. Lavallée stands on issues is quite obvious. In a number of instances she gave speeches which Hon. John Manley suggested sounded like something to be given in a local riding during an election. She gave up her question time to speak at a witness, as if she thought she was a witness, never allowing the actual witness time to respond. Whatever I may feel about the views of the MPs, their job at committee is to get witnesses to speak.

On a lighter note, I took the opportunity to go over and introduce myself to Jason Kee, Director, Policy and Legal Affairs for ESA in the break between the first and second panel. It is nice to meet in person people you follow and discuss/debate issues with online.

Photos from my way out of Center Block. First picture what was blocking us from leaving the side-doorway where most of us came in.

And the hallway we headed down to leave.

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Thanks for covering these meetings. We tried to get a little feisty but without the publishers beside us we could only go so far!



Let me know how I can help.

Let me know how I can help move things forward.

I believe that ultimately the only solution to the battles between traditional educational institutions and publishers will be Open Access. In this model the creators are paid once for their valuable contributions (often far more than they are getting currently), and then the material is available royalty-free for wider usage.

The problem has been that students and others in the educational system haven't been pushing this hard enough. Looking for exceptions will only backfire, as it will more likely lead to a compulsory license rather than reducing money leaving the educational system (and often leaving Canada) on its way to legacy publishers. Compulsory licensing is the worst possible outcome, as it blocks any choice for authors and students to harness much better competitive options.

While you may feel that students are the targets of Access Copyright lobbying, their real fears are the widespread adoption of Open Access which would pay authors better and cut the publishers behind AC out of the loop for the most lucrative non-fiction educational material.

Free/Libre and Open Source Software (FLOSS) consultant.


Thanks for covering these meetings. I love to read about these meetings and get all he latest updates.
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