Elizabeth May on Canada’s Copyright Modernization Act #C11

Copyright "c" with Maple Leaf

Because I’m a writer, copyright is a huge concern for me, so I’ve blogged pretty extensively about the dangerous changes Bill C-11 will make to Canadian copyright law in my personal blog. In today’s world, however, since copyright law’s been extended to blanket pretty much all of our culture, and Bill C-11 will extend its reach into areas of property and technology, it no longer just effects writers or creators, but all of us.

I was quite impressed with Green Party leader Elizabeth May’s valient attempt to challenge Bill C-11. If we had a different sort of electoral system that promoted co-operation instead of opposition, members of the ruling political party might have been able to listen to Ms. May’s words and perhaps even be swayed by them, for the good of the nation.

Although the government couldn’t/wouldn’t listen, what she said is well worth repeating.

Ms.  May wearing a cowboy hat, on the radio

Mr. Speaker, I rise to speak for the second time to Bill C-11, an act to amend the Copyright Act. The first time I had the occasion to speak to the bill was at second reading, on November 22 last year. I had hoped at that time we would see significant improvements made to the bill through the committee process.

“There have been several tries at amending copyright law. The first attempt to bring copyright law into the digital age was made back in 2005 by the previous Liberal government. Subsequent bills were brought forward, most recently, Bill C-32, which is what we see now, pretty much unchanged, as Bill C-11. In the process between the previous Liberal government’s attempt in 2005 and the bill presented by the current Conservative majority government, we have seen a leaning toward the rights primarily of U.S.-based entertainment industries.

“I am not a member of the parliamentary committees, and I certainly am not making that point to complain. I understand my position here as leader of the Green Party of Canada. The Green Party is a recognized party in the House, but my rights, obligations and opportunities are closely aligned with those I would have had if I had been an independent member, a member of no party at all. Strangely enough, that gives me superior abilities at report stage to bring forward amendments that are substantive, which I could not have brought forward today had I been a member of the committee.

“With that small digression I will just mention that although I am not a member of the committee, I tracked very closely what occurred at committee. Thanks to the able assistance of the wonderful young people who work on my team, and I am very grateful for their help, I was able to carefully monitor the evidence and review the testimony of expert witnesses who came before the committee. It was very compelling testimony from very knowledgeable experts in the field of copyright law in the digital age, which admittedly is a complex field.

“One of those experts who is often cited and has made valiant efforts to see this legislation improved is one of the country’s leading experts, Michael Geist, a professor at the University of Ottawa. He has been saying for some time, and I invoked his words when I first spoke to this bill at second reading, that the bill was “flawed but fixable”.

“We had a chance to fix it at committee and we did not. It is my hope that the hon. Minister of Canadian Heritage, who I think deserves a lot of credit for the bulk of what he has done on this legislation, will allow Conservative Party members to consider favourably amendments being put forward now so that the bill, when passed, will not just be new copyright legislation, but will be excellent copyright legislation. We have that possibility but we will need amendments to get there.

“The 18 amendments that I am putting forward today fall into two general areas. The Speaker has grouped them as such, and I recognize that, but I propose to speak to both groups at once. The two areas are to improve the clarity around the term “fair dealing”, particularly in relation to the new insertion of educational provisions, and to address the overly onerous provisions to protect material against digital locks. Digital locks are referred to in the law as technological protection measures, TPMs.

“I propose to try to explain these in layman’s language in the next few minutes to make sure they have a fair chance of being accepted by other members of the House who, like me, were not on the committee, but perhaps, unlike me, were not following the evidence as closely.

“Fair dealing” is a very straightforward term, but it does not have the meaning one may think. “Dealing” sounds as though we are making a deal with someone. This is basically copyright law, so we are asking whether the way one uses someone else’s creative work is fair. We have a lot of case law on fair dealing. We cannot define what it is or is not. It is not a question of being able to quote a paragraph or a page and acknowledge who the author was. In certain circumstances we could quote a page, and in other circumstances we cannot quote a paragraph. It depends on what the purpose and intent is and whether the intent infringes the creator’s rights under copyright law.

“In the concept of whether one is using someone else’s creative work fairly, we have changes in the legislation which, for the most part, are quite good. We are now saying one can use someone else’s work if the purpose is for parody or satire. Those words are not creating any problems for us today at report stage.

“However, the government threw in “education, parody or satire”, and the use of the word “education” does create some concern, primarily because “education”, as a term or exception under copyright use under fair dealing, has not been previously defined in the courts. It could lead to significant litigation to expand or narrow the meaning in ways that would be prejudicial to the average person who wants to use the material. Given that those people who might want to change the law in ways that restrict consumer access and normal opportunities to use materials are those with the greatest and the deepest pockets to go to court to prove this, it seems that down the road we might want to improve the way the bill currently reads and to create an opportunity by regulation for the Governor in Council to provide a definition of “education”, which is currently not in the bill, in order to leave that flexibility in place down the road. That is what my Motion No. 3 stands for: that the Governor in Council may make regulations defining “education”.

“This very specific amendment comes from testimony by Giuseppina D’Agostino, a professor in intellectual property at Ogoode Hall Law School. She also teaches at York University. Back in 2010, when this legislation was Bill C-32, the comment that Professor D’Agostino made to explain this amendment was this:

“This would allow for a more evidence-based approach and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and to be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time.

“That is all I propose to say on fair dealing. It is a big topic, but I want to move on to the question of digital locks. Most of my amendments relate to this problem.

“Digital locks make sense. The whole scheme of this legislation is about protecting the rights of a creator and balancing the rights of the creator with the rights of the consumer.

“This legislation attempts to bring Canadian law up to speed with the international obligations that Canada has undertaken through what is generally called the WIPO, the World Intellectual Property Organization, copyright treaty.

“The problem I have with Bill C-11 is that it extends well beyond WIPO requirements; in fact, the scheme it would create would be among the most restrictive schemes anywhere in the world. The plain common sense explanation of this is to imagine that an individual has the right to put on a lock on something to protect it if that individual has the right to do so. No one has a right to break the lock if that is the person’s property, and getting through that lock is the same as stealing.

“However, we have exceptions in the bill that say people’s intellectual property can be used for creative purposes, for satire and for parody.

“What if the individual does not have the right to lock it away? Under this legislation, breaking the lock would still be illegal.

“It was explained well by John Lutz of the Canadian Historical Association when he was testifying about previous Bill C-32 before committee. He said that the new law brings copyright legislation last amended in 1997 into the digital age: “Consumers will, for example, be able to make private copies of digital works to carry on different devices like an iPod, a smart phone or a laptop without breaking copyright. There is, however, one important exception, and that is if the vendor does not want you to make a copy. All a vendor has to do is make otherwise legal uses illegal is put a digital lock on it. A digital lock…”, and he goes on to describe it.

“This legislation not only indicates that a digital lock cannot be broken but also indicates that it would be illegal to produce the kind of equipment or technology that would help someone break a digital lock.

“I will not go through each of my amendments one at a time. They essentially speak to the following principle: if in all other circumstances under the bill the use of the material under a digital lock would be legal, an individual should be allowed to break the digital lock. A digital lock should not trump all other rights under the bill when it is fair dealing, when it is otherwise appropriate and someone wants to get access to that material.

“It could be as simple as a mistake I once made in Amsterdam: I bought a movie that I really wanted to watch and when I arrived back in Canada I could not watch it. I still cannot see it.

“I ask the Minister of Canadian Heritage to consider these circumstances in which no one has any intention of breaking copyright. They just want to be able to view or access something that they normally would have a legal right to do. Digital locks should not trump all other rights.

“I commend the Minister of Canadian Heritage for his hard work. I ask him to please consider amendments at report stage to improve this legislation.”

Elizabeth May: Copyright Modernization Act (Bill C-11)

The Conservative Government passed Bill C-11 without accepting amendments from any other party.

Although passed, Canada’s new Copyright Law is not yet in force.


Image Credits

Elizabeth May was photographed by itzafineday and released under a Creative Commons Attribution 2.0 Generic (CC BY 2.0) License

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Canada’s World of Tomorrow is Here Today

(my Digital Economy Submission)

Canadian Flag

There is no doubt in my mind that Digital Content and Technologies will play an enormous role in Canada’s future, particularly since they have already achieved incredible importance. The rapidly changing face of digital technology, and in particular the Internet, has pulled Canada, along with the rest of the world into the digital future far more rapidly than any previous technological revolution.

It must also be remembered that change within all digital technologies is ongoing. The big idea or the hot website of the day can change in the blink of an eye. Government attempts to micromanage policies or businesses will simply impede the ability of Canadian businesses to adapt to the changes quickly enough to compete effectively.

This Digital Consultation is clearly focused on business. Yet business is only one of the elements that needs consideration. The Digital Economy doesn’t exist in a vacuum, it exists in an ecosystem populated by a wide range of consumers and citizens. Further, the Canadian Digital Economy connects to the rest of the world through the Internet.

In formulating a national digital economy agenda, Canada needs to take a good long look at Net Neutrality, FLOSS, Education, DRM/TPM, Culture and Accessibility. Care needs to be taken to formulate good policies and laws that reflect the world in which we live and allow Canadians to maximize our potential.

As a democratic nation, it is vitally important to consult with all the stakeholders and reach a reasonable consensus. Rushing to implement inadequate or ill advised policies or legislation is to no one’s benefit, and certainly won’t improve Canada’s Digital Economy.

Everything is connected.

This is the Internet.

Theme: Canada’s Digital Content

Since first learning about the impending imposition of Usage Based Billing I have been learning about many of these issues and blogging about them in my public service blog ‘Stop Usage Based Billing’.

As a writer returning to the work force, I’ve taught myself to create web pages and write blogs as a warm-up for my real work writing novels. For myself I find self publishing to be a very attractive alternative to signing a traditional deal with a traditional publishing house.

Although many of the issues I am addressing here are largely technical, as a writer, my greatest personal concern is for the future of digital content in Canada.

The primary focus of any Digital Economy policy should be removal of barriers to small business. Make it simple and create an environment conducive to innovation and competition, both at home and on the global stage. That is the kind of support that will help Canadian business thrive.

NET NEUTRALITY

The single most important thing the Government can and should do is to ensure Canada has real environment of Net Neutrality.

In the early days of the Internet, Canada had state of the art technology and reasonable prices, two very good reasons why initial Canadian rates of Internet adoption were good. In recent years, though, especially in the parts of the country without Independent ISPs, dramatically spiraling costs have certainly been a factor in the slowing rate of Canadian Internet adoption.

Unfortunately the Internet carriers appear to have done little more than basic maintenance of the infrastructure although Canadian Internet rates have risen to some of the highest in the world, leaving Canada faced with both a sagging infrastructure and high costs. Hardly an ideal environment for growth.

Canadian Internet Carriers also operate as Internet Service Providers. To foster competition and benefit Canadians, the Government mandated the Internet Infrastructure be opened up to Independent Internet Service Providers. These Independent ISPs access the Internet through the carriers’ infrastructure. As a result, the Independent ISPs are in direct competition with the carriers’ own ISP branches.

The CRTC is our Internet Regulator charged with protecting Canadian consumers. Yet they have been horribly remiss. At best they appear incapable of understanding the issues.

The CRTC ruled to allow Bell to impede the Internet connections of the Independent Service Providers’ customers. This legal discrimination is accomplished with Deep Packet Inspection technology, allowing Bell access to the content of all unencrypted Internet traffic that passes across the infrastructure they control. Due to privacy issues DPI is illegal in Europe, yet the CRTC sees no harm in allowing Bell this access, and has not even bothered to provide any oversight. This is the digital equivalent of providing Bell with our house keys. Even in the days when Bell equipment was stored in Canadian homes, no government felt it necessary to grant them such access.

The CRTC has also approved Bell’s application to charge Usage Based Billing against the customers of the Independent Internet Service Providers. This mind boggling economic concept essentially removes the Independent ISP’s ability to offer the pricing packages they choose. Instead they will be forced to impose Bell pricing, dramatic price increases to at least double consumer costs without the providing the tiniest increase in value.

The worst part about this decision is that the CRTC accepted this proposal as a ‘traffic management’ strategy for Bell the carrier. Bell’s stated intent is to reduce Canadian Internet use by making it expensive enough to deter Canadian consumers from using the Internet. In this way Bell can continue to reap huge profits from consumers without having to reinvest in infrastructure.

It seems to me that reducing Canadian Internet access should be the last thing that Canada needs if the Canadian Government goal is to nurture a Canadian Digital Economy. Discouraging Canadian consumers from shopping online will result in reduced business for Canadian companies, who will have increasing difficulty doing business at all as the Canadian infrastructure falls farther and farther behind.

For both these situations, the CRTC has abused its regulatory powers by allowing Bell to interfere in, and worse dictate, the business practices of direct competitors. This is an incredibly anti-competitive way of doing business, and hardly conducive to encouraging Canadian business. And the direct opposite of the principles of Net Neutrality.

The reason the Internet has spread across the globe with such speed is because the Internet was not regulated. Instead it has provided as close to a level playing field as the world has yet seen. Because anyone can play. All it takes is a computer and a connection.

Part of the problem is that the Internet Carriers are wearing too many hats. Perhaps it is time to separate the carrier and the ISPs. And the carrier from the content provider. After all, usage caps can be used to prevent a carrier’s ISP subscribers from accessing content elsewhere. As others in the Digital Economy Consultation have suggested, public ownership of the infrastructure may very well be the way to proceed.

The CRTC should not be permitted to facilitate damage to Canada’s ability to participate in the global digital economy. Since the CRTC appears incapable of understanding the issues, serious changes must be made before worse economic damage results.

ACCESS and INNOVATION

Where does innovation come from? A lot of it starts with ‘thinking outside the box.’

If I want to plant a lawn, I wouldn’t just plant a dozen grass seeds. I’d cover the ground with seeds. Some of the seeds may be duds, and the birds or squirrels may eat some more, but if I water it a reasonable amount, I will end up with a lawn. All Canadians

Canada is known throughout the world as a country rich in natural resources. Yet our single greatest natural resource is our children. If we are looking to maximize the potential of our education system, forcing post secondary institutions to turn their research arms into businesses is the wrong way to go.

It would be far better to lower or even remove existing financial barriers to higher education. Previously Canada offered government grants to students who would not otherwise be able to afford a college or university education. Today’s students who are unable to afford the cost of post secondary education can access government backed loans instead. The problem is that when these students leave school with their degree they also carry the burden of crushing personal debt.

The unfortunate result is that bright students who might benefit from a post secondary education may well choose immediate employment over debt. I submit that all Canadian students should have access to post secondary education whether or not they can afford it. The benefits Canada will reap from the resulting talent, creativity and innovation is a skilled and educated workforce. This would be an excellent way for Government to the digital skills necessary to compete, thrive and innovate in the digital economy,

The more access Canadians have, the more innovation there will be. The more Canadians participate in the various aspects of the Internet, the more small startups we’ll have. Certainly every attempt is not going to lead to a Blackberry, but the more startups the better. Some won’t t succeed, but some will.

Particularly in trying economic times, small businesses don’t have money to burn. They can’t afford expensive research, so they are unlikely to hire consultants to guide them in digital adoption strategies to enhance their business. Small businesses tend to do things for themselves, with owners or staff being more likely to play around online to get an idea of how they might proceed. All that’s necessary is an Internet connection. Trial and error is free (at least until UBB is implemented). Should they try out an Identi.ca account or a blog? Or see if FaceBook or MySpace or Kijiji or HotFrog can best help grow the business?

Canadian Government Adoption of Digital Technology

I have been impressed with the Canadian Government’s commitment and follow through in putting an increasing amount of information online. This is an invaluable path to allow Canadians access to publicly funded information. However, it must be accessible to all Canadians.

It is certainly time to consider removal of crown copyright. This is one area where the United States provides a shining example Canada ought to emulate. The American Government releases everything from NASA space photographs to Library of Congress historical documents directly into the public domain. Because the taxpayers have already paid for this material they don’t have to again. Yet in Canada the CBC won’t give permission to even the most non-commercial of bloggers to reproduce a CBC image in a public service blog.

All levels of Canadian Government need to rethink dependency on Adobe PDF files. To the Ministry of Industry’s credit, this site offers a viable alternative to PDFs. Government information should not be locked up in a PDF file. Some people think that exporting documents into PDF makes them secure, when in fact the PDF exists to lock the document’s format for printing. PDF files require the download of a special reader, which for some is an immediate barrier to accessibility. Even with the reader installed, PDF files are not always easily to read on a computer screens, which makes sense since they were designed for printing. Without special tools citizens can’t easily make use of the information stored in government generated PDFs. It isn’t possible to simply cut and paste the information from a PDF into a calendar, newsletter, blog or mailing list. People need to retype the information in order to make use of it. This is, after all, government information that citizens are entitled to. It should be easily accessible so it can be read from the screen or used as needed.

FLOSS (Free Libre Open Source Software) or Open Data formats make it possible to avoid dependency on proprietary software, and ensure accessibility.

Placing Canadian Government Data in software formats controlled by a corporation can result in forced upgrades to accommodate the corporate timetable, or worse, being left without support in the event that the software vendor chooses to withdraw support.

Some proprietary software like Microsoft Vista or Windows 7 cannot be prevented from ‘calling home.’ I don’t know what software or hardware is actually deployed in the halls of government, but the probability that it is foreign proprietary software is certainly high. Since the Government has access to private citizen information I wonder both about Privacy ramifications and National Security issues when the Corporations controlling this proprietary software are not Canadian.

Eventually ceasing Canadian Government use of foreign proprietary software could help safeguard Canadian government data. Should our Government switch to FLOSS, additionally it would result in savings. FLOSS adoption would accrue all the same benefits to small and medium sized business as it would to the government.

Much of this same proprietary software is being forced on our children under the public education system thanks to ‘donations’ from the manufacturer. High School students take courses called ‘programming’ but instead of learning programming often they are simply trained in the use of a particular kind of proprietary software. I’ve heard that some European countries mandate equal access to non-proprietary software in public education. That would be an excellent mandate for Canada.

All Canadians need to be able to access the Internet so they can participate fully in the digital economy. But it is the children and young people of today who require the most nurturing because they will be the innovators of tomorrow.

Access is crucial. Cost should not be a barrier.

COPYRIGHT: Digital Locks

Canadian DMCA

Bill C32 cannot possibly be allowed to pass as it stands. The provision to make it illegal to circumvent ‘Digital Rights Management/Technical Protection Measures,’ sometimes known as Digital Locks, at the expense of everything else is wrong.

Environmentally it would be a nightmare. Digital locks on media and/or devices means that repair would not be an option. Canadians would be forced to throw out perfectly good media and devices if they had DRM/TPM and it wasn’t working.

Making circumvention of digital locks illegal guarantees that Canadians will be legally prevented from modifications which may well lead to innovations.

The moment that anti circumvention of digital locks becomes law, every digital manufacturer in Canada, along with every digital manufacturer outside of Canada, will be loading DRM on all of their media and devices destined for sale here.

This will become even more restrictive than proprietary software for Canadian consumers. We’ll need dozens of different devices because there will be no inter-operability as every manufacturer strives to corner the market. And in the event that one does, like, say, VHS, and all the others go out of business, consumers who bought the wrong media will again be out of luck.

Consumers are shell shocked from all of the obsolete technologies we’ve been through.

Vinyl records;
8 track tapes,
cassette tapes,
video disks,
laser disks,
Sony betamax,
VHS,
CD,
DVD,
5.25″ floppy Disk,
3.5″ floppy disk….

If it is going to be illegal for us to preserve, repair or even use the media or devices we buy, consumers may well stop buying. Hardly a recipe for a thriving digital economy.

At minimum any device or media having DRM/TPM must be clearly marked to warn consumers. It must also be made illegal for the words “buy” “sell” and “purchase” to be used in these transactions, since clearly they no longer fall under the terms of property ownership, rendering usage of those words fraudulent.

copyright symbol over a red maple leaf

As a writer, I am aware that Canada already possesses strong copyright law. To my way of thinking it is, if anything our copyright is too strong, possibly to the point of being detrimental to creators. As a creator, my first priority is disseminating my work. I very much oppose the idea that my work will be locked up by copyright for fifty years after my death. I feel strongly enough about this to the extent that I choose to make use of Creative Commons licensing.

A large part my strong opposition to legislation which cedes supremacy to digital locks is tied to this. If I release my novels under a Creative Commons License, I most emphatically do not want my licensing choice superseded by the agenda of a manufacturer of digital e-book reader. And that’s what Bill C-32 will do if it is passed as it stands: the device manufacturer’s rights would override my rights over my own work.

As a writer, I should be free to exercise my right to control of the content I have created. Isn’t that why copyright was invented in the first place?

CONTENT: Culture and the Internet

I’m in the process of self-publishing my first novel, which is my personal digital content advantage. For a creator of any kind of digital media, the Internet offers wonderful opportunities because it is the world’s greatest distribution channel. If you can find an audience on the Internet, you can make a go of your creative endeavor. Canadians are intelligent, talented, competent, innovative and responsible citizens of the world; we are beginning to take advantage of these distribution channels.

One of the ways I plan to utilize the Internet is to serialize my novel on my personal website. Yet if I am successful in attracting readership, resultant heavy site traffic will penalize me if Usage Based Billing is implemented.

Everything is changing. It used to be that musicians needed to be signed by a major recording studio who could get them radio play and concert exposure to become known. Without studio backing there was virtually no possibility of becoming a star. In the fifty years or so before the Internet, the only independent recording artist to become a truly Canadian Superstar was Stompin’ Tom Connors. And that took an extraordinary amount of work over a very long time as he played and sang his way the length and breadth of this land over and over again.

Before the Internet virtually 100% of the Canadian music industry was controlled by CRIA. Today, 30% of Canadian recording artists are Independent. By not signing with the four major record labels, these independent Canadian musicians retain control of the copyright for their original work. Thirty percent of Canadian recording artists are recording their own music, their own way and distributing it online in various ways. This has been an enormous gain for Canadian culture.

Both movies and television programs are being made by amateurs and professional filmmakers alike for distribution in a variety of Internet release methods. There are even two ‘made for torrent’ video productions that I’m aware of you (thanks p2pnet: the Tunnel and thanks Robert X: Pioneer One

Although often implied otherwise, file sharing is legal, and it is very important that it remain so. What is in question is whether uploading or downloading copyright works for non-commercial purposes is legal. Sovereign nations around the world need to make their copyright laws address this.

File sharing using BitTorrent protocol is one of the most efficient ways of distributing large files to a great many people. Both the Norwegian Broadcasting Corporation and our own CBC have experimented with file sharing as a distribution method. The American Project Gutenberg distributes many of the public domain books they have digitized through file sharing. Feature films released under Creative Commons licenses are being released and distributed in this way as well. And Open Source and FLOSS software are often distributed in this way. I have attended a few Ubuntu ‘release parties’ that are held to distribute the FLOSS Operating system via BitTorrent.

And of course Canada’s newest registered political party, The Pirate Party of Canada, offers creators legal BitTorrent digital distribution to allow them to distribute their wares. Free.

The Internet makes it possible for artists to reach their audiences through these sometimes seemingly radical methods. We need to adapt to the new technology in much the same way that we adapted to the change from horse drawn buggies to automobiles.

The very worst thing the Canadian Government can do is to stifle Canadian creativity and innovation in attempting to legislate against progress.



Image Credits: Map of the Internet – photo by the Opte Project

NOTE: I don’t have time to add all the links it deserves… I’ll try to get to it later.



BONUS:

And just because you waded through that, you deserve a reward. So here for your viewing pleasure is an animated film by Nina Paley which very accessibly explains the internet issues the Electronic Frontier Foundation fights to change:
Nina Paley’s Animated Thank You to the EFF

*Warning: This film REALLY made me Laugh Out Loud

[Thanks @openuniverse]