Bill C-11 legislative committee day 6 thoughts

The sixth meeting of the C-11 special legislative committee was held on March 1, 2012.

First group of witnesses was from CHUM radio, bought by Bell to now be Bell Media Radio. They had two simple messages. Between themselves and parent company they are both content creator/copyright holders and ISPs, and they believe the government got the right balance with notice-and-notice.They want this to move forward as, while the big telecommunications companies already follow regime, not everyone does (smaller ISPs, wireless, etc).

They also spoke in support of the ephemeral rights issue, alongside others in the radio industry. While I may have disagreements with Bell in other areas of policy, I fully agree with them on these issues and think most Canadians would also agree.

The easiest way to describe the testimony from the witness representing Ole Music Publishing is to call it a tantrum. He was extreme in his rhetorical attacks of so-called "corporate piracy", the folks he claimed were "free riders" in the technology sector: hardware manufacturers, telecommunications companies, Internet companies, and so-on. He described the Internet as a "money drenched frat party", and it went downhill from there. We have heard these arguments before, but this was one of the odder performances I've seen at committee.

The witness from the Canadian Council of Archives spoke to issues that are near and dear to me and my current employer, Canadiana.org. She focused on three core issues: how the changing term of photography makes determining harder, the unpublished/orphaned works problem, and technological measures. These are all issues I have written/spoken about, and have offered solutions to each: Fixed terms for recordings (no death+50 when the author is unknowable), registration and renewal after initial small no-formalities copyright term, and a requirement to file an unencrypted copy with the Library and Archives of any work which is to be sold encrypted on the market. I said more in my twitter stream if people want to read other ideas.

The second group of witnesses started with representatives of Corus Entertainment Inc, who were quite reasonable in their tone. Unfortunately my notes are lacking on what specific amendments they wanted. Some of the online twitter threads were still heated after some of what had been said by Ole from the earlier session.

The Coalition des ayants droit musicaux sur Internet had a few specific areas of policy they wanted to focus on: make ISPs liable for infringement, ephemeral copies, against the User Generated Content (UGC) previsions, wanted to codify copyright (fair dealings), and disagreed with the current balance of fair dealings in education. They appeared to be under the mistaken impression that ISPs were in control of communications networks like a broadcaster was. They didn't seem to care about the massive invasions of privacy required for them to monitor and control all the traffic on networks. In the twitter stream there there were many analogies, such as charging municipalities (who provide roads) for any use of those roads by criminals. They went as far as to suggest that ISPs somehow "authorize" this infringing traffic, a concept that is complete nonsense.

There also seemed to be massive confusion about who the UGC provisions related to, which is the user of the content. This would allow a citizen to create a mash-up without that citizen being accused of copyright infringement. Whether YouTube might have to pay royalties for redistributing third party content embedded is an entirely different question. They seemed to want to be anal when it came to the idea that a communications right for broadcasting is different than internal copies, and yet were unwilling to differentiate between entirely different people/entities who might be confused. Things are separate when they want to be separate, and conflate when they want to pretend they aren't separate.

The last witness was Jacob Glick, Canada Policy Counsel for Google. He said Google supports the bill, even if it isn't perfect and supports the proposals from the Business Coalition for Balanced Copyright. He wanted to focus on UGC and the roll of intermediaries.

One of the things he spoke about the Content ID system for YouTube which automatically detects when an uploaded video matches the signature of content provided by copyright holders. This allows the videos to be automatically removed or automatically monetised, with most opting for monetising. This is a service that YouTube/Google is offering to copyright holders for free, and takes massive amount of engineering time to have devices and continue to enhance. If anyone in the room can claim that others in the room are "free riding", it is Google. Fortunately for everyone concerned, Google is better than that and they continue to bend over backwards to offer free services for the content industry, even while far too many in that same industry attempt to vilify Google.

As can be seen in my twitter stream, I pretty much agree with everything that Jacob had to say. Where I might disagree with Jacob and his employer are policy areas he not talk about: legal protection for TPMs.

The interactions between the MPs and other MPs, as well as with witnesses, were familiar.

Mr. Angus, Mr Cash and others in the NDP want the ephemeral royalties restored, and continue to be supportive of extending the private copying levy. They spoke about how much money different entities have. I agree this would be on-topic for a Heritage Committee meeting discussing increasing Factor funding by $20million, and that would also be a policy I would support. I believe the relative revenues of different entities is irrelevant for a copyright conversation, and on ephemeral mechanical rights I disagree with them: copyright has no business being involved in the internal workings of a business. Copyright should be involved in content entering the home/business, and should be involved in public activities (public communication, public performances, distribution, etc), but should otherwise not regulate private activities in the home or office.

Mr Lake took on the ephemeral recordings issue a few times during the day. At one point he asked if NDP MP Andrew Cash could just give him $100. No reason: just that it wouldn't be much money for him and it would be nice. I agree with Mr. Lake on this.

Some other members of the Conservative party continued their confusion between legal protection for technological measures, the use of technological measures, and copyright. Mr. Del Mastro went as far as to falsely claim that all the new cloud based content systems are built upon TPMs. It is sad (dangerous, actually) that they have bought the rhetoric from the pro-TPM/anti-IT-property-rights crowd who have spent years trying to confuse politicians and other policy makers. There is no credible evidence to suggest that TPMs reduce infringement, and anecdotal evidence that suggests it increases infringement and reduces revenues to copyright holders. Even if it could help copyright holders, their right to protect their copyright ends at my computer: protecting copyright does not justify infringing IT property rights. (See my brief to committee)

The fact that some copyright holders might use technological measures does not justify including them in the Copyright Act. More copyright holders use electricity than use technological measures, and yet there has been no discussion of including a national energy strategy in the Copyright Act.

I realize that the two 1996 WIPO treaties require some form of legal protection for technological measures, but there are more and less property rights infringing ways to do that. In my brief I suggest amendments to minimize the infringement of IT property rights, with C-11 being unworkable in its current unamended form.