Bill C-11 legislative committee day 8 thoughts

The eighth meeting of the C-11 special legislative committee was held on March 6, 2012.

The first panel offered similar themes from the Canadian Music Publishers Association (CMPA), the Audio-Visual Licensing Agency Inc (AVLA), and the Société professionnelle des auteurs et des compositeurs du Québec (SPACQ).

CMPA started with the familiar argument on ephemeral recordings, going further to claim that Berne says you can't revoke a right that is currently being monetized.

They want ISPs to be held more liable for traffic, confusing amount of traffic currently monitor with the actual contents of traffic which they generally don't (and under privacy legislation shouldn't be allowed to) monitor. They also want ISPs to block offshore infringing sites, not knowing (or caring) what technology that would involved (IP address filtering, DNS, deep packet inspection). This is SOPA all over again, even if they don't understand the issues well enough to recognize that.

They also wanted to extend the secondary liability "enabler" provisions to use the language "ordinarily used", again wanting providers of communications services to be held responsible for the actions of their customers rather than only actions which they have control over.

As their last bullet point, they don't like reductions on statutory damages which they claim is an obstacle to copyright enforcement. Most countries don't offer statutory damages at all, with some harm needing to be proven by the copyright holder -- an option that remains available to them under C-11. Their argument seemed to be that they want to be able to extract disproportionate damages for non-commercial infringing activities that they themselves admit are unlikely to have caused any harm.

AVLA repeated on ephemeral recordings, and SPACQ added in their confusion over user generated content (The so-called YouTube exception, even though it applies to the user and not YouTube) and some of the familiar nonsense about the word "education" being added to fair dealings.

Conservative MP Rob Moore asked the panel if some creators are better at taking advantage of new technologies than others, a critically important question. While some of these lobbiests claim it is somehow a morality problem with people infringing that is their problem, there is far more evidence to suggest that it a failure of certain industry segments to modernize their business practises that is a much larger factor. I say often that "not available for sale" is a bigger problem than copyright infringement, an additional problem not adequately discussed.

Conservative MP Mr. Lake appropriately asked this panel what they do to monitor their membership to see if they are committing any illegal activities. This is right question, given they want us to move into a surveillance state with our communications infrastructure, and yet have absolutely no idea (or possibly simply don't care) that the costs of doing so (economic, and from a social justice/human rights point of view) are far greater than the purely theoretical rewards.

Maybe we should hold composers and music publishers legally responsible for any unlawful activity that occurs while or was induced by music listening: sex, drugs and rock-and-roll opening massive class-action lawsuits against CMPA sounds about right :-)

Conservative MP Paul Calandra wins the "Harry Potter" award for the day when he kept talking about some sort of magic incantation that can be put on a music download that will allow it to only work for 33 days. He seems to believe that "copy control" is a real thing, rather than a marketing term for a closed content delivery platform. There is no such thing as "copy control", only "computer control", and you always have to ask who owns that computer to determine if this is an infringing form of non-owner control. It is embarrassing that a Conservative would (knowingly or through refusing to learn) demonstrate such little respect for the legitimate property rights of technology owners.

NDP MP Pierre Nantel is likely the worst on the other side of the table, with his constant false claim that 90% of the music on a typical iPod/iPhone is infringing. Not sure where he gets his statistics from, but it is part of the chicken little rhetoric he falls into often at committee.

The second panel included two education publisher groups (Canadian Educational Resources Council and Canadian Publishers Council) who seemed to have coordinated their participation. The other witness was from the Canadian Association of Law Libraries (CALL).

The publishers didn't like the 6-factor test that the Supreme Court has come up with to determine fairness because it did not indicate commercial harm as the primary (or only) factor. Yesterday I provided a link to a post by lawyer Howard Knopf discussing this issue in detail. As with previous witnesses that offered similar odd commentary, Mike Lake asked them to clarify which of the other 5 factors they believed shouldn't be included, which the witnesses were unable to give a coherent answer to.

CALL was the most interesting witness of the day, focusing on 3 areas: fair dealing, crown copyright, and digital locks.

They are of course supporters of the 6-factors the Supreme Court set up for determining fairness. They see this not as some sort of exception to copyright, but as a requirement to achieve balance in the law.

They discussed the part of bill C-11 and its "take measures to prevent" language as it relates to activities of their patrons. This is another one of these scenarios where it appears the government is making an innocent third-party responsible for someone elses activities. There is no clarity as to what these measures involve, and whether this might mean "technological measures". Having only those citizens with the "chosen" brands of computers able to borrow from a library largely nullifies the purpose of the library in the first place, and should be something summarily rejected. This comes with all the regular objections to TPMs: can't stop infringement, and causes considerable harm to the rights and interests of a majority of copyright holders, users of copyrighted works, software authors and technology owners.

They said that the library and archives community should be no more liable for enforcing the activities of their patrons than a bookstore might be of their customers. This is shades of the morning panel, where Mike Lake asked the morning panel if they monitor the activities of their members checking for any unlawful activity.

Speaking of crown copyright, she discussed how the government has a duty to distribute materials it produces. While there is the Reproduction of Federal Law Order, it doesn't go far enough and makes retrospective digitization of historical documents expensive.

My day-job is at as a system administrator (LAN and Internet servers) and software developer. Canadiana is involved in digitizing historical documents, including government documents, and making it available to individual and institutional members. We are an NGO that are funded by our members (and thus why we have to use a paywall), offering services to the LAM community. We know first hand the costs of research for this material, with the complexities around the term of copyright (and all the components within a work -- photographs within a book, etc) being very problematic. It would simplify at least part of our work if Canadian government documents were like the USA which doesn't offer a copyright monopoly on government documents at all. Longer term it would help all Canadians as well as initiatives like ours to clarify and simplify copyright term, move to the minimum term mandated by treaties we have already ratified, and work internationally to modernize these treaties to reduce, clarify and simplify copyright term.

CALL also spoke about digital locks being a threat to fair use. She spoke about how these technologies cannot distinguish between lawful uses and users. I would go further: creativity and infringement are the identical technological activity. You record things, you edit things, and you publish/communicate/copy things. Any technology that alleges to reduce copyright infringement will also reduce creativity.

Conservatives again spoke about TPMs in the library context, demonstrating their lack of awareness on how these technologies work -- or perhaps a lack of respect for property rights, if they are aware. The lock on content alone does not (and can not) stop infringement, it only ties access to the right keys. If those keys are delivered to authorized persons, then those persons are prohibited by the law (not the technology) from infringing copyright. If the keys are delivered to authorized devices, then we have a closed content delivery platform: if the devices are rented this is a non-infringing scenario, but if the devices are owned by the citizens who are denied keys then this is an property rights infringing scenario.

In any case, only allowing those who have acquired (rental or "purchase") specific brands of closed content delivery platform to borrow from a library negates much of the purpose of their being libraries.