Bill C-11 house debate day 4

On November 22, 2011 we had the fourth time when the House of Commons debated Bill C-11 (at Second Reading).

I am glad that Ms. Elizabeth May (Saanich—Gulf Islands, GP) included discussion of the constitutional questions raised by Bill C-11.

The problems are in two areas, and I will refer to the first. Briefly, it is constitutional. The constitutional problem is simple to describe. Copyright is clearly an area of federal jurisdiction, whereas property rights are provincial. To the extent that we have intruded into property rights, we have a problem. This has been described in a learned article published by professors Crowne-Mohammed and Rozenszajn, both from the University of Windsor, in the Journal of Information, Law and Technology in which the authors describe the problem this way:

The DRM provisions of Bill C-61 represent a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada's international obligations.

Let us de-link them. Let us protect the rights and protect copyright reform without acceding to pressure from U.S. interests, which want to have excessively restrictive controls in the form of digital locks. That is setting aside the constitutional issue.

One way to de-link is to minimise the Paracopyright provisions in C-11, sticking to the language proposed in the two 1996 WIPO treaties which are tied to infringing activities, and which do not in any way restrict otherwise lawful activities.

Probably the most provocative statements were made by Mr. Colin Carrie (Oshawa, Parliamentary Secretary to the Minister of Health, CPC):

I see that as a fundamental breach of personal rights and property rights. If the NDP holds onto this position, as the member has said, the NDP will not supporting any piece of legislation that has digital locks, hundreds of jobs in British Columbia would be lost and hundreds or thousands of jobs in Quebec would be lost.
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I believe in property rights myself. It is a fundamental right that if I own property, I should be able to utilize it at my desire. If a company wants to sell a locked copy of a digital game, which is its business model, and I as a consumer want to buy it, what is wrong with that? We have heard over and over from New Democrats that they are not going to support any legislation with digital locks, but Canadian jobs depend on this in the member's community. What is wrong with consumers choosing to purchase a certain format and utilizing it as they wish? What does the NDP have against that?

It seems obvious to me that Mr. Carrie is unaware of what is locked, who holds the keys, and who owns what is locked.

Locks on content can't "make decisions", and believing so is pure science fiction. A lock on content alone cannot accomplish any of what Mr. Carrie appears to believe it can.

What locks on content can do is tie the ability to access locked content to specific brands of access devices. It is hard to understand Mr. Carrie's claim that not protecting anti-competative locks on content will somehow harm these industries, or lead to job losses. If anything, the policy we see in Canada's Competition Act (including section 77 dealing with tied selling) is generally understood as critical for the Canadian economy. I would suggest that the protection that Mr. Carrie appears to be supporting will itself lead to job losses.

The most relevant lock in the video game industry is the one on the game consoles, and in that Mr. Carrie has the property rights interests backwards. It should be the owners of the game consoles, not any third party (console manufacturer, author of game, etc) that holds the keys to any digital locks on that property. Any non-owner lock on a game console is circumvention of IT property rights, and should be prohibited : not protected in copyright law.