Thoughts on C-32 committee meeting 20. Possibly the last meeting?

The 20'th and possibly the last meeting of the Legislative Committee on Bill C-32 had people from the Council of Ministers of Education in the morning, and representatives from Athabasca University and differently abled persons in the afternoon. The focus was on limitations and exceptions to Copyright.

It was mentioned a few times that this was likely the last meeting of this specific committee, with the election seeming inevitable at this point. In the break between the morning and afternoon sessions a few cameras were taken out by committee members, with pictures taken in a very collegial manner. It wasn't the air of the anger one often sees during an election, but of school mates wishing each other well before heading home for the summer.

I also had a chance to speak for a few moments with Ed Fast in the break, and later in the afternoon Dean Del Mastro came up to me and thanked me for my dedication to this policy through being at committee, tweeting and blogging. For those of us in the audience that were there every meeting, such as the folks I met from the Copyright Board of Canada and the Library of Parliament, there was the same feeling of "see you next time".

While this bill won't pass, what we heard from the witnesses was important and now on the official record. The hope is that this record will provide a better starting point for the next bill, as far more information was offered to the committee than might have been gleamed from the summaries MPs were offered of past consultations.

In the morning we had the Minister of Education (politician) and Deputy Minister of education (bureaucrat) from Nova Scotia. While they offered good answers at the higher political level that many of the MPs will likely have appreciated, I was personally far more interested with the more detailed answers that legal council Wanda Noel was able to offer. This is a small area of policy, and she and I have met in person in the past (It was a face-to-face meeting with her where I first used the handouts for my 4-things in my hand presentation)

The general message they focused on was that they weren't there to take money from creators, but to help push for clarification in the law. They knew they had to respond to those witnesses that had come before that were claiming that the addition of the word "education" to the section 29 fair dealing criteria would result in massive cuts to revenues to authors. They stated numerous times that they disagreed with that interpretation of the law.

When it comes to the addition of the word "education" to section 29, I agree. I also happen to believe that clarity in educational fair dealings will likely result in more revenues to creators, as clarity in the law will enable educators to move forward with possibly novel uses of technology and creativity in the classroom.

Bill C-32 includes many other additions to section 30 that are specific to educational institutions, and when it comes to these I disagree that it isn't going to take money away from creators. Other than Mr. Angus who made specific reference to the 30-day cutoff after a course ends for some of these institutional exceptions, these complex and controversial provisions didn't receive much discussion at all.

It is unfortunate that the political rhetoric from educational publishers, amplified by the publisher dominated collective societies, were able to derail this important conversation. Rather than focusing on areas of C-32 that will cause actual harm to the material and moral rights of creators (TPMs and institutional exceptions are first two that come to mind), they were distracted by the word "education" being added to fair dealings which would have at most a minimal impact on them.

The witnesses spoke about TPMs, clarifying their position as believing that any protection should be tied to when the purpose of circumventing a digital lock was to infringe. Their focus was on protecting the balance in copyright to ensure that the limitations and exceptions still exist in a digital environment.

Mr. Fast repeated some of his themes from the past. He spoke about how the term "user right" doesn't exist in the Copyright Act, and downplayed the importance of this discussion in the CCH case. He also said that "creators" were worried that any limits on digital locks could be abused, a message opposite to when I was a witness explaining how non-owner digital locks were what would be (and have already been) abused.

In the afternoon Mr. McGreal spoke about the first copyright law, British Statute of Anne 1709, had at the beginning of its title "An Act for the Encouragement of Learning". He spoke about how he believed the conversation around Copyright has lost that initial important goal, and was now almost entirely focused on the private interests of copyright holders to the exclusion of learning and other public interests.

All the witnesses spoke about how "digital locks" were standing in the way of their communities, and that this wasn't about money. They would all happily pay creators, if only the works were made available for pay in a format that was appropriate for their constituencies.

Mr. McGreal clarified something I have often said myself, which is that misunderstood and misapplied technical measures represents a far greater threat to the economic future of creators than nearly any other issue being discussed (fair dealings, institutional exceptions, or infringement).

My feelings on some of what was said by those representing the differently abled is quite strong. In my mind any technology that assists the senses of someone, no matter what the capabilities of their senses, should be under the control of that person and not anyone else.

This means:


  • Copyright holders should NOT have a "right of non-interoperability" where copyright holders can impose brands of technology that can be used to access creativity. They shouldn't have any more choice of what hardware or software I use than what brand of eyeglasses I may wear. This is the the effect of an access control applied to content, and this type of lock should not be protected under copyright law.
  • Manufactures should NOT have a right to apply locks on hardware/software such that they, and not the owner of the device, makes software choices. While this circumvents many laws including property and copyright laws, it gets into some very morally grey areas as the line between access technology and prosthetics will converge. These are issues we need to work out now, and not some time later when removing non-owner locks from ones own eyes is claimed to be illegal.

I question the morality of having laws which enable copyright holders or technology manufacturers to circumvent human rights. I look forward to the day when parliamentarians and other Canadians share this passion for ensuring that misunderstandings about the nature and impact of technology are not abused in these quite offensive ways.

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Grim worst-case future is actually the present

Locking users out of prosthetic devices is already the industry norm.

If you want to get a device certified, you have to prove that it meets the certification criteria in every mode of device operation. Practically, that means you can't let users mess with the firmware after you've sold the device. These days it often means you also can't be seen to enable users to mess with firmware by supplying tools like firmware updaters, source code, or technical details about the platform. If a community of dedicated and enthusiastic users organizes third-party technical support for your platform, this is somehow seen as your fault, and you're expected to correct it.

Monetizing user activity with an app store (which you can do without losing your medical device certification, as long as you have enough control over the store that you can still meet the certification criteria no matter what combination of apps the user selects) is as much a potential income source for a young startup with hungry investors as devices that digitally authenticate the batteries that are inserted into them. The basic component parts (from expensive application processors to cheap battery charge microcontrollers) have strong crypto authentication modules embedded in the silicon now, so no production costs are saved by pretending that consumer-abusing technology isn't already present.

Way beyond the current level of discussion.

I bet none of the politicians charged with updating laws to deal with digital technology have ever thought about any of the ramifications of these issue. We need to get them there, and quick. The idea that vendors with their own motivations and partnerships can be unaccountably and non-transparently "trusted" with the rules that govern digital technology is something that we as a society must get past.

It would be interesting to see if a non-owner locked prosthetic that proposed to enforce rules beyond safety rules (IE: outrageous things relating to Copyright license agreements) would pass the certification. That would be an interesting test of just how out-of-touch of a rational reality this policy has gone. I don't think we have yet reached my worst-case future scenario.

Some of what Prof. Steve Mann is doing at the University of Toronto should be required reading/etc for these politicians. I laughed at his Seat Sale exhibit, until I realised that some extremists in the debate wouldn't get the joke.

Note: processors are cheap. Any system that allows third-party applications must allow owner control over those third party applications. It is a silly argument when it comes to automotive features (IE: car owners should be legally protected in changing the software in their entertainment consoles, even if road safety doesn't allow owners to change the software in the fuel injection system), and it is an offensive argument when it comes to prosthetics.