Green Party C-11 Amendments

On March 30, 2012, Ms. May (MP for Saanich--Gulf Islands, Leader of the green Party) added a few motions to the Notice Paper, Report Stage of Bills.  I will offer my own quick comments on these motions in the hope that they are useful for the ongoing debate.

Motion No. 1 — March 30, 2012 — Ms. May (Saanich—Gulf Islands) — That Bill C-11, in Clause 2, be amended by adding after line 27 on page 2 the following:

““education” means education provided by an educational institution;”

If I understand the intent, I disagree.  The word "education" is proposed to be added to section 29 (Fair Dealing), with institutional exceptions being part of section 30.  If anything I would want to define the word "education" being added to section 29 to exclude education provided by institutions.

Education (teaching is the more clear word used in the USA) being done outside of an institution is when the exceptions are most valuable and warranted.  Institutions have the ability to deal with licensing issues, and have staff creating much of the works used and can mandate open access to solve their own potential funding issues.   I believe that education institution exceptions are provincial educational funding policies masquerading as copyright, and thus disagree with them being part of Copyright law.

Motion No. 2 — March 30, 2012 — Ms. May (Saanich—Gulf Islands) — That Bill C-11, in Clause 21, be amended

(a) by replacing lines 11 and 12 on page 17 with the following:

“29. (1) Fair dealing for purposes such as research, scholarship, private study, parody or satire does”

(b) by adding after line 13 on page 17 the following:

“(2) Fair dealing for prescribed educational purposes does not infringe copyright.”

I disagree with this amendment for similar reasons to the first.  Institutional exceptions to copyright are in section 30, and this amendment proposes changes to section 29.

We need to have "clarifying and simplifying the act" as a priority, and further mixing of section 29 (fair dealings) and section 30 (institutional exceptions) harms that goal.

Combining the first amendment with this one appears to revoke the fair dealing exception for education that happens outside of institutions, the opposite policy than what I would agree with.

Even if I agreed with the goal of creating more education institutional exceptions as being proposed in this motion, I disagree with the method proposed.

Motion No. 3 — March 30, 2012 — Ms. May (Saanich—Gulf Islands) — That Bill C-11, in Clause 47, be amended by replacing line 25 on page 45 with the following:

“measure for the purpose of an act that is an infringement of the copyright in the protected work or of the moral rights in respect of that work, or for the purpose of making a copy referred to in subsection 80(1).”

The goal is likely to add the "for infringing purposes" back into legal protection for technological measures, something I obviously agree with.  This amendment, while in the right direction, wouldn't adequately achieve that goal.

Line 25 of page 45 of the bill, as amended by committee (page numbering changed from the earlier printing), is the last line of the paragraph (b) definition of circumvention.

To understand the impact we need to separate paragraph (a) access control technological measures from paragraph (b) use control technological measures.

Access controls can be applied directly to content, such as when various closed content delivery platforms encrypt content such that it can only be accessed by authorized devices. Access was never before contemplated in Copyright law for very good reasons, and this should be understood as the most controversial form of technological measures as is has the least least connection to an activity previously regulated by copyright.

Use controls get us into that science-fiction myth and magic" conversation.  A technological measure applied to content alone cannot make decisions, including restricting the doing "of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19", any more than a paperback book can read itself out loud.  If any decisions are to be made they are encoded in software and run on some computing hardware.

From Protecting property rights in a digital world:

Understanding the real-world market and human rights impacts of these technologies requires understanding all the components, and including the motivations of software authors (including the anti-competitive interests of DRM vendors) as well as the fundamental (but all too often ignored) rights of the owners of the devices.

Unless we are fully aware of all four classes of owners, we risk inadvertently supporting and/or enacting laws which will circumvent rather than protect our property rights.

My brief to the C-11 committee discussed who the worst infringers, as well as inducers and enablers of infringement, of the rights of the owners of the devices.  Allowing copyright holders to condition access to content to specific brands of technology allows them to induce infringement, and as such should have been rejected (made illegal, not legalized) by those who claim they are trying to reduce infringement of other people's rights.

While I argue that access control TPMs should have been removed from the bill entirely, including because they were not required by the 1996 WIPO treaties, this did not happen.  To highlight the problems of access controls, any amendment that seeks to tie the technological measures aspects of C-11 to copyright infringing activities should apply to both access and use control technological measures.