Q & A: How will the country’s copyright laws affect Canadians?

TORONTO – On Jan. 19, Canadians watched in awe as key players in the digital world – Wikipedia, Wired, WordPress and Mozilla to name a few – orchestrated what has been dubbed the “largest protest in history.” The tech companies teamed up in an effort to raise awareness about two copyright bills – Bill C-11 in Canada and the Stop Online Piracy Act or SOPA in the U.S. – that were on their way to becoming legislation. The websites made their point and the U.S. House of Representatives shelved SOPA.

But are Canadians any more aware of what the potential implications are for these proposals? It’s difficult to sift through a myriad of contradictory content online that suggests SOPA and Bill C-11 would limit the scope of the web as we know it while other pundits use words such as “user-friendly” and “freedom” to describe amendments to current copyright laws.

Global News spoke with two experts to discuss how Bill C-11, which went back before the House of Commons for debate on Wednesday, and SOPA will affect Canadians online.

Michael Geist is a University of Ottawa law professor and Canada Research Chair in Internet and E-commerce Law. He blogs about technology law here.

Howard P. Knopf is an active intellectual property lawyer and is currently counsel at Macera & Jarzyna in Ottawa. He has successfully litigated important cases in the Federal Court of Appeal and the Supreme Court of Canada. He blogs about copyright here.

Barry Sookman is a senior partner in the McCarthy Tetrault Technology Group and professor at Osgoode Law School. He blogs about internet law here.

Global News: There has been an information overload about both SOPA and Bill C-11. Readers have understood that these proposals would protect musicians, filmmakers and writers from having their work stolen and distributed over the Internet, but what’s been misconstrued is what potential changes would mean to Canadians using the Internet. How would Bill C-11 affect Canadians’ experience online? How would SOPA affect Canadians’ experience online?

MG: Bill C-11 would have an enormous impact on Canadians, both offline and online. The bill contains some good provisions for Canadians as it legalizes time shifting (recording television shows), provides new protections for user-generated content, expands fair dealing, and creates a balanced approach for the liability of Internet providers.
That’s the good news.

The bad news is that the bill also contains some of the most restrictive digital lock provisions in the world. Digital locks are technological tools that can be used to lock down digital content – think region coding on DVDs or access controls on e-books.

The problem with the legislation is that any time a digital lock is used on digital content, the various consumer rights disappear. Documentary film makers and journalists can’t legally circumvent a lock on a DVD to use a clip in their production, students can’t circumvent a digital lock for a multimedia project, and teachers can’t do so for class lessons.

The effect is to allow digital locks to trump virtually all other rights. The Canadian approach extends far beyond international requirements and raises legitimate fears about its impact on consumer property rights, free speech, and privacy.

In addition to the concerns associated with Bill C-11 as currently constructed, there are real fears about potential changes being promoted by lobby groups such as the Canadian Recording Industry Association. Their proposed amendments to C-11 would radically alter the bill by constraining consumer provisions, heaping greater liability risk on Internet companies, and introducing website blocking and Internet termination to Canada. Several of these provisions are very similar in approach to SOPA in the U.S.

BS: It appears unlikely that SOPA will be passed in its current form by the United States Congress, so there won’t be any affect on Canadians, regardless of whether any effect was ever possible.
Canada’s Bill C-11 would amend the current Copyright Act in a number of ways, most of which aren’t necessarily related to the Internet. The bill contains many provisions that would greatly expand the freedoms of Canadians to copy creative products like music, movies, TV programming, books, software and games for private purposes. The bill also proposes new exceptions to support learning and education.

Bill C-11 would provide protection against hacking and trafficking in technological protection measures (sometimes referred to as digital locks or TPMs) created to safeguard intellectual property products. These proposed amendments would adopt internationally accepted measures to protect and promote innovation in digital products and services such as video game software and online music and movie streaming services.

When it comes to Canadians’ experience online, individual Canadians will be able to make and disseminate user-generated content – mash-ups – on websites like YouTube without fear of accusations of copyright infringement. ISPs, hosting providers, search engines and other service providers would have new and wider exceptions to protect them from infringement charges when they act as neutral intermediaries. Making temporary copies of works to view them online or to disseminate them would not create liability.

HPK: First of all, we have to distinguish between the Bill C-11 that we see now – and the one waiting in the wings, which will include SOPA-like amendments that will supposedly be “technical” but may be very far-reaching if certain lobbyists, such as Mr. Sookman, who wrote today in the National Post, get their way. I can only address the bill in front of us. While it will supposedly create more freedom for consumers to engage in format shifting, time shifting, private copying, fair dealing and other users’ rights, it will actually be a big step backwards because virtually all of those gains will be rendered nugatory by the iron-clad technical protection measures (TPMs).

These TPMs can prevent Canadians from watching a perfectly-legal DVD made in India, or cutting and pasting for an educational project or a documentary, from using locked material in the public domain, or from making a backup of an expensive game, BlueRay, or computer program product. Canadians will end up with less rather than more access to knowledge and entertainment products and pay higher prices for what they are allowed to do. Users’ rights will be determined by lawyers and executives in Hollywood and New York and imposed by TPMs, the circumvention of which will be illegal even if the use is not.

SOPA, if it had been enacted, could have shut down all kinds of Canadian websites – including perfectly legitimate ones – based upon an extremely aggressive extraterritorial approach with very little due process that would require Canadians and other foreign parties to defend themselves in American courts at enormous expense and with little chance of success. This is not just paranoid fear mongering. Those who fought for SOPA have been trying their best in the American courts to shut down YouTube for several years just because of cute cat and baby videos that supposedly infringe entertainment industry content. SOPA would have enabled this kind of overreach.

Global News: What are the differences and similarities between these two potential pieces of legislation? Do they have the same protections?  

BS: The two laws are not remotely comparable. I’ve described above some of the dozens of amendments Bill C-11 would make to the Canadian Copyright Act. SOPA, on the other hand, was a narrow piece of legislation focused on the single objective of blocking or cutting off funding to foreign (non-U.S.) websites that are dedicated to theft of American intellectual property. It created a mechanism whereby copyright holders could go to court and, in accordance with due process, get orders against a particular foreign websites. There is nothing remotely similar to this in Bill C-11.

HPK: Canada’s Bill C-11 and the U.S. SOPA bill are very different on the surface. Bill C-11 is far more balanced in many respects, if only because it is more of an omnibus revision. Michael Geist has pointed out its several positive points. However, both bills would achieve the same ultimate end, which is the protection of legacy business models and the unnecessary inhibition of digital innovation. Bill C-11 is a very general bill that has been in the works for many years in various iterations. SOPA is the latest and perhaps most blatant example of U.S. entertainment overreach aimed at blocking or inhibiting new technology. First it was the player piano. Then radio. Then VCRs. Now, it’s the Internet. And there were many other attacks in between.

MG: Bill C-11 is currently much more like the U.S. DMCA than SOPA. The danger of SOPA-style amendments comes from demands of groups such as CRIA and the movie lobby. For example, the industry wants language similar to that found in SOPA on blocking access to websites, demanding new provisions that would “permit a court to make an order blocking a pirate site such as The Pirate Bay to protect the Canadian marketplace from foreign pirate sites.” Section 102 of SOPA also envisioned blocking of websites.

Global News: Do you think that much of the discussion is escalating into fear mongering or should Canadians have some concern in these potential laws and how they’d affect their ability to share information online?

MG: I think the concerns about C-11’s digital lock rules and the SOPA-style amendments are very real and Canadians are right to be concerned. If there has been fear mongering, it has come from the claims that Canada is a piracy haven.

The Business Software Alliance’s annual Global Piracy Report shows Canada among the 15 lowest piracy countries in the world with the Canadian piracy rate at an all-time low. The Canadian Motion Pictures Distributors Association has acknowledged that illegal camcording had largely disappeared from the Canadian market.
In 2010, the World Economic Forum found that global executives rank Canadian intellectual property protection ahead of the United States, the United Kingdom, Japan, and most of Europe. Canada is a world leader in digital music sales that even the Canadian Recording Industry Association now characterizes as a commercial opportunity.

BS: There is certainly a lot of exaggeration and outright misinformation about Bill C-11 out there right now. Some of those that oppose certain provisions in Bill C-11 have hoped to take advantage of the unpopularity of SOPA by calling the provisions they oppose “SOPA-like”. But even a cursory look at these two statutes would show that they are not even remotely comparable. This has led to a lot of confusion in the Canadian public with regards to copyright reform.

HPK: The most important thing I learned at law school is that any legislation or court decision should be viewed in the light of the worst possible and most absurd result it could produce – because this is what usually follows and sooner rather than later. So, in the U.S.A., the music industry is still pursuing a judgment of almost $2 million against a single mother for downloading 22 songs. We have seen a home video of a baby dancing to Prince’s barely recognizable music being taken down. We have countless well-documented examples of the chilling effects on research, education, speech and expression through overreaching current laws.
According to many proposed definitions of a rogue site, the biggest offender would be Google. You can find all the infringing material you could ever imagine of simply by doing a Google search. Would anyone try to take Google down? The answer is that there is already a longstanding mega battle underway to take down YouTube, which Google owns. So, even Google itself could be a target for litigation. Collateral damage? No problem for the entertainment industry, which sees this as the Awar on piracy@ and has actually gone so far as to link it to the war on terrorism not only in terms of moral panic rhetoric but with suggestions that funds from counterfeit DVDs fund real terrorists.

Global News: SOPA led to a historic day of online blackouts on Wikipedia, Reddit, Mozilla and others who closed their sites in an appeal to users to get in touch with their Congressional representatives to argue against the passage of the bill. What is your stance on these sites protesting these changes? Is Bill C-11 flying under the radar compared to SOPA and if so, why do you think this is happening?

MG: I think the SOPA protests provided a real opportunity for millions of Internet users to become educated about the proposed legislation and to ensure their voices were heard. The SOPA protest ranks as the largest online action to date, but it was foreshadowed by similar developments around the world.

Bill C-11 has attracted considerable attention as tens of thousands of Canadians have spoken out to voice their concerns, particularly on the digital lock rules. The big question as the bill heads to committee is whether the government is listening.

HPK: First, this is Canada and we are generally less excitable about than Americans, unless hockey is involved. Second, we don’t have big home grown industry players fighting back directly and with so much resources as is now the case in the USA with Google, etc. We do have highly respected communications companies and the Retail Council of Canada making some important and principled points and taking a stand for their customers. In Canada, the lobbying is more subtle and the resources available are much less than in the USA.

For example, Google is much less visible on the policy front in Canada than in the U.S. The educational and library sector is much less assertive in Canada. Moreover, many of the most important issues in Canadian copyright law are being dealt with by the Copyright Board, which has been given sweeping power by Parliament to devise and implement “tariffs.” This process results in almost half a billion dollars of copyright payments by Canadians per year that add to the cost of everything from blank CDs to K-12 education to retail prices on countless products. There are about 36 collectives working hard to increase these payments even more. There is simply no counterpart in the USA to some of the most important Canadian tariffs and collectives, and no organization comparable to the Copyright Board. This process is largely “under the radar” to most Canadians.

BS: I don’t think Bill C-11 has been flying at all under the radar. Bill C-11 is the culmination of reform efforts that have been ongoing in Canada since at least 1996. Since then we had four bills, C-60, C-61, C-32 and C-11. All of these bills have been heavily reviewed. Bill C-32, which was identical to Bill C-11, has had extensive review and was subject to extensive comment during the previous Special Legislative Committee hearings.