[ Version française par R. Lutz ]

Jem Berkes: Q&A on proposed changes to Canadian copyright law

Why is the Canadian government thinking of changing copyright law?

The model for the desired changes to law originates from the United States, in Clinton's Information Infrastructure Task Force (IITF) and the National Information Infrastructure (NII) initiative in 1995. The proposed changes to copyright law were controversial as they were authored by the media industry and highly commerce based, upsetting the current balance between the rights of copyright owners and those of academics, libraries and users. The NII Copyright Protection Act bill did not pass, but essentially the same recommendations were pushed via the United Nations' World Intellectual Property Organization (WIPO) into the WIPO Copyright Treaty. The changes to copyright law described by the WIPO Copyright Treaty have since been ratified by the USA and by the EU. (In effect, the USA implemented their own IITF recommendations, previously denied by congress, using an international treaty as a workaround.) Similar changes to law are being considered in Canada.

The reason the Canadian government is considering such changes to law is the same reason the US considered the changes: a powerful industrial lobby insists that the government must change law to better protects commercial interests. The industry argues that Canadian copyright law does not adequately protect them in this new digital/information age.

What would be the impact on citizens if the proposed Copyright reforms became law?

Based on the 2004 Heritage Committee's Interim Report, here are some of the effects the new law might have, as I understand it. I am not a lawyer.

Digital files, media and documents protected with technology that prevents editing or copying would gain a special protected status in Canada. It would be illegal to bypass this technology.

This means that if you buy an audio CD that has copy prevention technology within it, it might become illegal to bypass that technology in order to do perfectly harmless things like making a backup copy of the audio or transferring the audio to other equipment -- such as an iPod or other portable storage. Such digital restrictions are called Digital Rights Management (DRM). Even when you buy and legitimately own such media, what you can do with your media is dictated by the DRM manufacturer. Even the authors/artists are not in control. Legal protection of DRM does not protect authors, but instead protects the rules laid down by the DRM manufacturer (e.g. middleman or content distributor).

Similarly, equipment or software that doesn't follow the digital copyright protection rules might become illegal to invent, build, or possess.

People who want to buy audio and video might increasingly find themselves with fewer options, as the companies which control digital "protection" measures will be able to lock out competition or incompatible types of media. This will help develop monopolies, hurting consumers' rights.

The companies who control these digital protection technologies can also force consumers to upgrade or buy new equipment whenever they want, since it is easy to obsolete technologies which rely on secret codes.

For example, today we can still listen to old vinyl records because the technology to listen to records is simple and well known. But if the process used to get the sound from the record was a secret and protected by law, then perfectly good vinyl would be unusable and worthless. Your media would be useless without the blessing of a company that builds and maintains the equipment necessary to get the sound off your vinyl. You could not do it yourself -- it would be illegal, even if possible.

Moving on to other impacts of the proposed changes to law...

Internet Service Providers (e.g. Shaw, MTS) may be forced to take down web sites and possibly hand over citizens' private information when there is a complaint about commercial infringement. What's scary here is that the USA has demonstrated that when the law enforces it, Internet Service Providers tend to comply with commercial complaints automatically and without question in order to avoid legal problems.

So if you run a web site which upsets a company in some way, even though you may not be breaking any laws, the company will complain to your Internet Service Provider and your ISP will likely take down your web site immediately without any recourse. This will definitely increase censorship.

There will be an assumed theft/copyright infringement, allowing companies to automatically collect royalties or fees from institutions such as libraries and universities for perceived theft. This already happens to some degree. It really amounts to outright theft by industry, taking money for other peoples' work, or for public domain work.

What effects has WIPO-style copyright law had in the USA and in the European Union (EU)?

I strongly recommend people check out www.eff.org, the Electronic Frontier Foundation which has thoroughly documented the effects of WIPO-based copyright reform. In the US, WIPO ratification created the DMCA law. Also read about the history of these changes to copyright law.

Many of the potential impacts I described above have been realized in the USA and in the European Union. There is a visible move towards less consumer choice and increased monopolistic powers. Similarly, there is an undeniable increase in censorship. Freedom of research and freedom of press have suffered.

One of the distressing impacts of the DMCA in the United States is that it has stifled free speech and scientific research. Magazines which publish information that could be used to circument copyright protection have faced lawsuits from industry. University researchers who experiment with and discover weaknesses in technology have also faced lawsuits from companies developing the underlying technology. And the media is restricted in what it can publish about such situations.

The laws have threatened the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public. Even the Institute of Electrical and Electronics Engineers (IEEE), a major international professional society and publisher, has struggled with the restrictions posed by the DMCA with respect to publishing scientific knowledge.

The laws have hurt citizens' rights to "fair use" of media they have legitimately purchased. For instance, copy protected audio CDs are legally protected and you can't make personal copies from them. Consumers are getting less useful products since the products are artificially limited.

The laws have hurt competition and innovation, since large companies are increasingly using the law in order to protect their monopolies on certain technologies or processes. Innovating and developing new technology is becoming increasingly risky.

There is also a fear that WIPO ratification would hurt Canada more than the EU. The European Union had modern laws that already protected reverse engineering to create compatible technologies. Canada does not have such modern laws, so WIPO ratification has the potential to take away more users rights here than it has in the EU.

As a citizen/artist/engineer/technologist this concerns me. What can I do?

We have a Petition for Users' Rights that will be presented to parliament in 2005. The petition asks that the Government considers the rights of citizens as stakeholders in Copyright law, and not pass any reforms without public consultation. Also check out digital-copyright.ca and the forums.