The Canadian House of Commons passed the Copyright Modernization Act (a.k.a. C-11) by a vote of 158-135. Like all current-day online copyright statutes, C-11 has its fair share of detractors. But Canada’s new online intellectual property bill did manage to get a lot of things right, with only one glaring dark spot.
The Long And Winding Road Of Online Copyright Legislation In Canada
Like their cousins to the south, Canadian legislators have been drafting and striking down online intellectual property laws for the past 15 years. But it looks like they may have settled on C-11, which does feature some impressive consumer protections. According to an industry Minister Christian Paradis, who was involved with copyright legislation, C-11 has “struck the right balance” and “will help Canadian creators and innovators to compete and contribute to attracting foreign investment to Canada, while ensuring that consumers, educators and users will have new protections that will give them full opportunity to engage in their digital world.”
C-11: The Good Points
Before we explore C-11’s glaring bad point, let’s discuss the laudable aspects. In addition to extended leeway granted to educational institutions, the new Copyright Modernization Act also:
- Extends “fair dealing (fair use)” provisions to include exceptions for parody and satire;
- Contains new back-up, format- and time-shifting rules that allow for greater operability of networked DVR systems and online television services;
- Explicit copyright exceptions for user-generated content that go a long way in protecting non-commercial “fan art” and “remixes”;
- Caps statutory damages for non-commercial infringement at $5,000;
- Features a notice-and-notice system as opposed to a notice-and-takedown system.
C-11: The Big Bad Digital Locks Provision
I keep mentioning this “dark spot” on C-11. What is it? The bill’s digital locks provision. Fiercely opposed by members of the Liberal and NDP parties, the digital locks provision in C-11 will essentially make it illegal for users to “rip” a CD they bought and upload it to their iPods. How so? Technically the law makes all breaking of “cyber locks” inherently illegal. As such, if a CD includes copying safeguards, using a piece of software to circumvent those measures will technically be illegal under the new piece of legislation.
Opponents of the provision rightly point out that C-11, in its current draft, doesn’t include language exempting individuals with disabilities who may need to break certain “locks” in order to utilize specialized assistive programs. For example, nearly every blind person in the country will have to break the law if they want to use a popular braille program. In a personal anecdote, NDP MP, Charlie Angus, tried to reason with fellow lawmakers by elucidating his daughter’s need for protection from prosecution:
“My daughter went through school deaf and to get copyright material she had to actually break the lock rhythm which is used to access material.” Why would [we] not work…on a clear amendment that would ensure that students with perceptual disabilities are not treated as criminals for accessing material in an educational format so they can succeed?”
Many, like University of Ottawa law professor Michael Geist believe the digital locks addition, and the Conservative party’s refusal to budge on the issue in cases of disabilities, is “strictly a function of U.S. pressure.”
Blind and deaf interest groups aren’t the only ones concerned about the all encompassing nature of C-11’s digital locks provision. In an interview, NDP heritage critic and musician, Andrew Cash, explained:
“Sharing of our work in the digital space is not necessarily a bad thing for the bottom line for artists. The guy who is uploading 10,000 songs to distribute all over the place for free is not the same as the guy who bought a CD or got a copy of it from a friend to get into. You don’t know how that guy is going to spend his money down the road. The problem now is that multi-million media companies want to stomp that behavior out of existence, but it is really counter-productive.”
And of course, just like in the United States, there are associations and lobbying groups that are all for C-11’s digital locks provision. Take the Entertainment Software Association of Canada; their position is that digital locks are necessary to keep their industry “thriving.” But even Jason Kee, despite being a pro-digital locks advocate, had to admit that “the industry is doing well in spite of piracy.”
Much like U.S. legislators promised about SOPA, those in support of C-11’s “dark spot” swear that if a digital lock is broken for personal use, it’s not realistic to expect the copyright holder to file a lawsuit because (1) how would they know, and (2) the time and legal fees involved would render the exercise pointless.
C-11 v. SOPA: Are They The Same Bill?
When Canada’s Digital Modernization Act was passed, the Internet erupted. Netizens were lamenting the fact that Canada passed a law EXACTLY like SOPA.
But is that really the case? Are C-11 and SOPA exactly alike? In a word: no.
First and foremost, in comparison to SOPA, C-11 does not contain “takedown or else” measures. C-11 doesn’t provide a legal method to financially strangle websites within a matter of days. Moreover, unlike SOPA, C-11 includes protections for “fan art” or “remixes” and distinctions are made between commercial and non-commercial use of copyrighted material.
C-11’s $5,000 cap on statutory damages for all non-commercial infringement also sets it apart from SOPA.
In terms of how both bills handle the removal process: C-11 features a “notice-and-notice” system as opposed to SOPA’s “notice-and-takdown” method. That means content is not stricken from the Internet until both parties have had a chance to fairly weigh-in.
Several news outlets are reporting that the bill will most likely pass the Senate and enacted before summer’s end. Those looking to adjust the digital lock provision, however, are saying “not so quick.”
According to Geist, provinces maintain jurisdiction over civil and property rights; as such, there is an effort to challenge the bill on constitutional grounds by arguing that the digital locks are a personal property rights issue, not intellectual property, and therefore out of the federal government’s purview.
I expect that if C-11 does pass in the Senate before summer break, Canada is in store for some vocal partisan debate over this online intellectual property issue for months to come. To keep up with the latest Internet law news, sign up for our newsletter.