Bill C-11 legislative committee day 3 thoughts

The third meeting of the C-11 special legislative committee was held on February 27, 2012, and followed what will be the normal process for witnesses where the 3 hours is divided into two parts.

The first session had three people marked as individuals, and the second session had someone from the Alliance for Equality of Blind people, and two people representing photographers.

University of Ottawa Associate Professor Jeremy de Beer spoke first, with the most common theme being issues with legal protection for TPMs (Paracopyright) that included the constitutionality of those provisions. He is one of a small group of people who raise this issue given what TPMs impact are primarily issues of property (of the devices), contract, eCommerce and other areas of provincial jurisdiction. His proposal to avoid this uncertainty was to closely tie the anti-circumvention provisions to activities which would otherwise infringe copyright.

He spent some time dealing with one of the misdirections of the pro-TPM folks, which is to conflate legal protection for TPMs, use of TPMs, and copyright law. These are very different issues, with there being little link between copyright and TPMs. He also suggested he personally didn't have a problem with the use of TPMs, and felt the harmful unintended consequences were caused when the legal protection of TPMs was brought into law.

University of Western Ontario Associate Professor Samuel E Trosow focused on the addition of the word "education" to the list of criteria that might, if then proven to be fair, be considered fair dealings. He was dealing with the hysteria from some book publishers and authors who have been claiming that this word will cause losses to their sector. I think his presentation was quite clear. He suggested that for clarity Canada should do as the USA did with their fair use regime and add the phrase "such as" to the list of criteria, and to embed the 6 factors used to determine fairness into the Copyright Act.

McCarthy Tétrault LLP Lawyer James Gannon presented on familiar themes of his, primarily being a promoter of the harms from abuses of TPMs. I include a mention of him, along with McCarthy Tétrault colleague Barry Sookman as allies to "enabling" politician Dr. Mihály Ficsor in my brief to the committee. At one point Mr. Gannon suggested there was controversy over whether a specific country had implemented TPMs in a way compliant with the two 1996 WIPO treaties, and I suspect if we researched it that this controversy would have originated with Mr. Ficsor.

Not surprisingly the amendments Mr Gannon suggested were to narrow any of the existing exceptions to the TPM provisions, and to narrow the exceptions in the "enabling" provision. He mentioned that he had an engineering background, likely to try to counteract those of us with a technical background who have been trying to alert the Conservatives to the harm of the TPM provisions. Unlike some of his colleagues who may not know any better, he appears to be suggesting he understands how this technology works and simply doesn't care what harm it causes to technology owners or other people who are not his clients.

He did not like the use of the term "digital locks", and claimed that the technology was an enabler. If we were talking about "enabling" infringement of technology property rights I might agree, but what he spoke about was business models which he alleged were dependant on legal protection of TPMs. In my mind any business which is built upon infringing someone elses rights is not a legitimate business, but in this case we are talking about businesses which are not dependant on legal protection for TPMs. They are inducing and/or infringing for no valid reason.

His arguments were primarily based on conflating legal protection for TPMs, using TPMs, and legal protection for copyright. It is true the business models he spoke of were dependant on copyright law and specific contractual agreements (terms of service, etc) protected by provincial contract and eCommerce law, but other than conflating very different concepts he provided no evidence that they were dependant on the use of TPMs or legal protection for TPMs.

I agree that language is important, and we must not allow apologists for infringement of IT property rights to get away with distracting politicians with false language. Trying to rename infringement and inducement of infringement into warm-and-fuzzy language doesn't change the nature of the massive harm to the legitimate property rights of technology owners which we are talking about. It is interesting that people like Richard Stallman also don't like the "digital locks" language as he feels it is too week, and we should be using language like "digital handcuffs" given we are talking about handcuffing people (or rather, their devices) without them being accused or charged with an offense.

The second session had Marc Workman who is National Director of the Alliance for Equality of Blind Canadians, André Cornellier of the Canadian Association of Professional Image Creators, and Brian Boyle from the Canadian Photographers Coalition.

Mr Workman simply wants the blind to have the same access to creative works as other Canadians. He spoke about limits to the ability to share accessible versions between countries, and some sort of requirement for accessible versions to be made in the first place.

When discussing technological measures, I felt he didn't go as far as he needed to. In my mind, any hardware assistance for human perception must be under the control of the citizen and not a third party. This should be true whether we are talking about eyeglasses or a home computer, as well as whether that is a desktop computer, mobile computer or an embedded medical device. It is an attack on our rights and freedoms as citizens to allow a third party to control these technologies, falsely claiming that this remote control is necessary to protect copyright.

I tweeted about how closed caption or subtitles are something which can often be made available from a separate source than the original work. It should be perfectly legal for someone to purchase commercially available content, and then using the software of their choice view it along side a closed caption/subtitles file that the person acquired from whatever source they wanted. Copyright holders and device manufacturers should not be allowed to disallow this activity.

There was talk about how some platforms allow screen reading, and how some programs on those platforms don't work with screen readers. I don't consider this a technical problem, but a legal one. If citizens were enabled in being in full control of their devices, then deliberate defects (such as Amazon disabling the "read out loud" feature of their software if a copyright holder requests it) would simply not be possible. If the owner wants some text read out loud, it should be able to be read out loud: and we should not care as a society whether the device manufacturer or copyright holder doesn't want that text to be read out loud. Having technology to assist our perception should not be regulated by copyright in any way at all.

The two people representing photographers were rightfully confident in their presentation. While I may not like all the consequences of the proposed changes, they have been long in coming and have had very little opposition. It is highly likely that the provisions to repeal section 10 and subsection 13(2) from the current act will go forward without opposition or debate.