Our community hosts a few petitions to the federal parliament. Our first was the Petition for Users' Rights which we launched in 2004 during a Liberal government, and the second was the Petition to protect Information Technology property rights which was launched in 2006 soon after the Conservative government formed. At the time I thought protecting property rights was a non-brainer for a Conservative government, but it turns out that I was wrong. If we don't focus on our rights and interests as technology owners, this Conservative government will blindly trample our rights without even acknowledging us as legitimate stakeholders.
The prayer for the Users' Rights petition is, "petitioners call upon Parliament to ensure generally that users are recognized as interested parties and are meaningfully consulted about proposed changes to the Copyright Act and to ensure in particular that any changes at least preserve all existing users' rights, including the right to use copyrighted materials under Fair Dealing and the right to make private copies of audio recordings. We further call upon Parliament not to extend the term of copyright; and to recognise the right of citizens to personally control their own communication devices."
If we compare that prayer to the speaking points from the government on bill C-11 (including before the election when it was numbered bill C-32), you can hear they believe they have accomplished those goals.
There was wide consultation including formal submissions, online submissions, town halls and round-tables. Most people who participated recognize the government ignored the single largest message which is that Canadians didn't want legal protection for technological measures, but the consultations did happen and users were recognizes as interested parties.
Fair Dealings is being expanded in the bill in many key areas. Not only are private copies of audio recordings still under an exception (the controversial private copying regime was retained and protected), but activities involving non-audio works are covered by a new "reproduction for private purposes" fair dealing exception. This is all true, except in the presence of a technological measure.
Copyright was generally maintained at death of the author plus 50 years and not expanded, except in some specific obscure cases involving music recordings and photographs.
The Conservative speakers in parliament, in committee, and in the media have given no indication that they would even understand why the last sentence is there. They appear focused on so-called "digital locks" applied to copyrighted works, and while they recognize software as also being a copyrighted work they would have no idea why we would be asking them to "recognise the right of citizens to personally control their own communication devices" in the context of changes to the Copyright Act.
This suggests that other than for counting purposes, where we can talk about thousands of people who signed it, that we generally abandon the Users' Rights petition. It is clear that the way in which the government has not heard us is how these proposals will harm the legitimate interests of lawful communications technology users and owners.
The prayer for the IT property rights petition is, "to prohibit the application of a technical protection measure to a device without the informed consent of the owner of the device, and to prohibit the conditioning of the supply of content to the purchase or use of a device which has a technical measure applied to it. We further call upon Parliament to recognise the right of citizens to personally control their own communication devices, and to choose software based on their own personal criteria."
The petition references existing legislation such as the federal Personal Information Protection and Electronic Documents Act (PIPEDA), the federal Competition Act, and clearly referenced the device owner as having legitimate interests which must be protected under provincial property law. The idea was not to create entirely new bodies of law, but to ensure that the rights of software authors and technology owners are are adequately protected under existing laws. It is the competitive software market and the privacy, property, security and other rights of technology owners that are under massive threat from C-11. Far from protecting the rights of owners, the technological measures aspect of C-11 will enable and legally protect the circumvention and infringement of owners rights.
Our petition mentioned an early list of associations which opposed legal protection for technological measures, a list which has grown considerably since that time. There are few associations who can be legitimately claimed to still be in support -- and yet the government is blindly pushing forward.
It is quite clear that the government has not even acknowledged these concerns, or acknowledged these separate stakeholder classes, leave alone addressed them in the bill. I think it would be hard for the Conservative government to openly reject the protection of tangible property rights, given how their base has been so strongly opposed for many years to the mere registration of long guns.
It remains possible, however, that Conservative MPs and the conservative base are somehow still unaware of how these technologies work. They may believe it is possible for a technology applied to content alone to stop something from being copied. Any technical person knows that digitally-encoded content can’t make decisions any more than a paperback book is capable of reading itself out loud. If there are any rules to be enforced, including whether a work can be copied, they are encoded in software which runs on some device. It is science fiction to believe that a technology applied to content alone can "make decisions."
Any time we hear "copy control", we need to understand that as meaning "computer control" and asking why we are allowing third parties control over our computers? Every time we hear "digital locks", we need to understand that as being digital handcuffs. Law abiding citizen are having their communications devices (tools key to our lives in this modern age) handcuffed without ever being accused or found guilty of an offense.
There is quite a bit of talk in recent days about lawful access legislation where the police are able to access information most of us consider to be personal without the need of a warrant. When someone other than the owner controls the keys to locks on our devices, the third party with the keys can invade our private spheres in ways far beyond what lawful access legislation has been proposed to do. If you were a bad actor and wanted to abuse this power, would you go work for the police or for one of these technology companies where you won't likely ever receive a police screen.
If a parent tries to secure the devices being worn by their children, they will be accused under C-11 of "circumventing a technological measure". The criminal measures in bill C-11, what you would normally think is reserved for the worst of activities, applies to the commercial companies that a parent might purchase products or services from in order to secure their devices and protect their children.
We must make all politicians and stakeholders aware of the existence of the software sector and technology owners as separate stakeholder interests from copyright holders and users of copyrighted works. The property rights petition tried to do this by making clear that "TPMs can be applied to both content and devices, and thus the copyright holder and the owner of the device have rights that must be respected" and that "while copyright holders own rights on the protected work, private citizens usually own the devices used to access those works".
While you may not agree with the specific choices the government made in C-11 with balancing the rights and interests of copyright holders and users of copyrighted works, it is clear they fully acknowledged the existence of each as stakeholders. The lack of acknowledgement of the additional two stakeholder and owner classes impacted by the "technological protection measures" aspects of the bill must then be our focus, otherwise the government will pass the bill unamended and trample the rights and interests of a majority of software authors and technology owners.