Is passing 'any' copyright bill better than passing 'no' copyright bill?

I was sent a link to some interesting Canadian Copyright debate related cartoons by Rob Labossiere. While I liked the cartoons, something said in the text around the cartoons caught my eye even more:

But it will be a shame if Bill C-32 is never passed, for two reasons, neither of which ironically has to do with the substance of it.

I saw something similar last evening when law professor Jeremy de Beer tweeted a link to a Globe and Mail article, adding "So now any new law is better than no new law?? Sad.".

I have noticed this type of thing said by an increasing number of people. While I strongly disagree with the sentiment, I am curious why people feel this way.

Rob had two primary reasons for wanting something over nothing.

Rob suggested that since the bill said parliament had to revisit the act every 5 years, this would mean that it would be looked at more closely and not fall too far behind. He suggests that the longer we wait, the more out of date our Copyright act becomes, and the more drastic (and thus controversial) the changes that will need to be made.

The 1997 revisions to the Copyright Act added a Section 92 which required a report five years later. The replacement section 92 in Bill C-32 says that a committee (house, Senate or both) will conduct a review every 5 years.

Notice that in both cases it is a review: in 2003 by the departments (Industry and Heritage), and in the future by a committee. It only means some bureaucrats and politicians (or their staffers) think about the topic and write up a report that is tabled.

It doesn't mean new (or if I dreamed big, improved) legislation, it didn't mean consultation, and few people beyond those who follow these issues in detail will even know the review happened or the report was tabled. (Note: I made a submission to the Section 92 review process in response to the report.)

"Clarification and simplification of the Act", was listed as the last bullet on the lowest priority grouping in the Section 92 report. When I think of aspects which make this act appear the most outdated, the necessary updates fall under clarifications and simplifications. (Clarifying that on-demand communications by telecommunications are covered -- as well as who is liable, is digital distribution a communication or a distribution of a "mechanical" copy, various clarifications to the private copying regime, what is the intersection between research and education, etc).

I would suggest that all three of the bills tabled make the act more complex, and opens up far more questions of interpretation. We appear to be headed in the opposite direction than we should be.

It is similar to the new Section 41.21, which suggests that cabinet can make additional exceptions to the anti-circumvention aspects of the bill. It is unlikely that this will be used often enough to tame the most nasty aspects of non-owner locks on content and devices. It requires that the cabinet be engaged in an issue that is a lose-lose political battle for them where any discussion at all will bring political costs.

Rob also suggested that "there is has been more consultation during this round than ever before. ... Having been engaged, people naturally want to see something happen."

I believe something is happening: Three bills which ignored the majority of the voices in the relevant consultations have been tabled.

The first attempt wasn't as bad on technical measures, and the third attempt has various reforms to fair dealings which have distracted various people (consumers, and the various battling factions in the educational sector) from the bulk of the bill. Other issues such as reforms to the private copying regime which are outside of this specific bill have also served as an effective distraction, and has been incorporated in political attack ads.

While I believe those tabling the bills are becoming most politically savvy in how to spin and present the legislation, I'm not convinced it demonstrates much in the way of learning. While more Canadians are engaged than ever before, this engagement has been primarily in the form of strong opposition to a specific change (some real, some imagined). When asked at Committee, many of those few groups who have been witnesses have suggested that it is better for the bill not to pass than to pass without some amendment that they are proposing.

In the Globe and Mail article, John Ibbitson was primarily talking about the alleged benefits of their being a majority government.

In 2005, the Liberals introduced legislation that would update the Copyright Act to take into account the arrival of the digital age, which had already been around for some time. Six years and three bills later, we're still waiting. At this rate, the digital age will be over before Canada gets a new act.

The subtext here is that new legislation is needed to handle issues in the "digital age", and that all three of these acts were a positive step towards that goal. These are talking points from the government, not something I agree with in any way.

While I agree some clarification and simplification is long-overdue, I don't believe that any of the three bills tabled thus are actually beneficial towards addressing issues in the "digital age". For the most part, the bulk of policy contained in these bills were aimed at protecting (or appearing to protect, given misunderstandings of TPMs) established business models from competition that would otherwise be emerging as part of the "digital age".

I am not talking about activities we all agree should be infringement, which the current Copyright covers quite well for copyright holders willing to collect evidence and harness the existing law.

In other words, I believe that the status-quo Copyright act, warts and all, will be better at ensuring Canada a better position in the "digital age" than passing any of the three bills we have seen thus far. I think it is dangerous for people to start to believe that any change is somehow better than no change.

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To pass or not to pass C-32

Thanks for the link to the cartoons. To add to that post, I do think there's enough good in the Bill to let it pass. And it's very hard to imagine a consensus developing on any amendment.

That said, dropping "education" from fair dealing would perhaps satisfy the collectives and how big a loss would it be to the universities, libraries, etc? They've already said they are not opposed to licensing and will continue to do so.

Distance learning provisions seem already to be a compromise, time limited, to let some new work be done there without getting bogged down in licensing the univ's can ill afford and the collectives may not be prepared to handle. I say do it and then review in 5 years.

Anti-circumvention will not move imho, no matter what; too much industry power behind it. It's also been proven to be ineffective in the US, which I know is a poor reason to just let it go, but... publishers are doing it anyway and consumers will vote with their wallets as they did with the early locked pdf eBooks.

For me the most interesting presentation at Committee was the guy from the university bookstores who pointed out that more than half of their course pack licensing is now done directly from educational publishers and not collectives. That's what I mean about market forces. And it is actually what the collectives should be (or are) worried about - if their days are numbered, copyright isn't going to save them.

Success is what we make of the mess we've made of things.
- T. S. Elliot

Legal protection for technological measures.

Curious if you have glanced at my Protecting property rights in a digital world article?

While many people think the controversies about legal protection for technical measures is about so-called "digital locks" on content, that is the comparatively minor aspect of the issue. It is the non-owner locks on the digital technology which we purchase and use to do far more than access someone elses copyrighted content that is the source of the vast majority of issues.

As we saw with Apple and music distribution, non-owner locks on content were only relevant to build a strong platform for Apple. One they commanded a majority of that market, the locks on content were no longer relevant to them and thus they were quite willing to distract people by claiming they didn't support DRM on music.

When you investigate their attitude towards non-owner locks on hardware manufactured by Apple, you get the real story. They were by far the most vocal opponent to there being any limits on non-owner locks on mobile computing during the most recent process to have some limits on anti-circumvention in the USA's DMCA.

Apple understands these technologies, and understands that the only effect of locks on content is to drive people to specific brands of content delivery platforms. It is the locks on the devices which is where all the leverage is, where most of the harm from these policies come from, as well as where these lobbiests want the strong legal protection.

Those who think DRM is on the decline, or that it has demonstrated to be a "failure" because audiences don't want to pay for content infected by DRM need to read more about what DRM is, what these "digital locks" really are, who owns what is being locked, and who controls the keys. Even if not a single piece of content had DRM on it, the harmful impact of legal protection for the non-owner locks on our devices would be similar.

My experience is that most creators who were once supporters or neutral on legal protection for TPMS become opponents once they have spent the time to actually understand how these technologies work.

Note: By a percentage of the words in the bill, legal protection for technological measures is by far the largest policy contained in the bill.

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