New (proposed) copyright law in Canada

June 2, 2010 5:45 PM

The Canadian government has introduced new copyright legislation, which is supposed to strike a balance between the rights of authors and the rights of users. Internet guru Michael Geist weighs in.
posted by anothermug (28 comments total)

$5000 for total infringement, of a non-commercial use.

I wonder if I could download enough to justify that. Assume $100 for a box set of tv (averaging between lows of short-run stuff and massive quantities of star trek / doctor who / other big shows), $50 per musical artist's discography, and $10 per movie.

Man. That's totally doable.
posted by Lemurrhea at 6:05 PM on June 2, 2010 [2 favorites]

While there are a bunch of really backward bits in there ("notice-and-notice" is some pretty fucked up shit), finally having some sort of fair use clause on the books would be at least one small step in the right direction.
posted by Sys Rq at 6:10 PM on June 2, 2010 [1 favorite]

In the US, "strike a balance" is always code for "screw the little guy harder". Perhaps the Canadian accent is different.
posted by DU at 6:11 PM on June 2, 2010 [1 favorite]

I don't understand why it is illegal to crack DRM-protected software and devices, while it is still okay to rip a CD (with the same content) or whatever that is unprotected.
posted by KokuRyu at 6:12 PM on June 2, 2010

So nobody in the articles explicitly mentions it as being a big deal, but, uh "notice-and-notice": that's really messed up, right? Like, it's not just me --- that is super, super scary? Right?
posted by Tiresias at 6:17 PM on June 2, 2010

3rding the extreme scariness of the "notice and notice" provision; yikes!

I'd call that an excellent reason for everyone affected by the law to learn how to use an anonymous proxy.
posted by dolface at 6:21 PM on June 2, 2010

Oh hey you guys are getting a DMCA too! That's like getting a puppy, except it's more like waking up on Christmas morning to find out that Mom bought the puppy she promised you in October and hasn't fed it since.
posted by Pope Guilty at 6:25 PM on June 2, 2010 [4 favorites]

existing fair dealing rights (including research, private study, news reporting, criticism, and review) and the proposed new rights (parody, satire, education, time shifting, format shifting, backup copies) all cease to function effectively so long as the rights holder places a digital lock on their content or device

So it's pretty much exactly the same as the DMCA, a decade old piece of legislation that utterly failed at reducing piracy at all? It's sad to see the media industries continue to push for completely unenforceable and ineffectual laws, when they could be doing something to actually change the status quo. People will continue breaking DRM schemes and not getting sent to jail for it, regardless of whether or not it is against the law.
posted by burnmp3s at 6:36 PM on June 2, 2010 [1 favorite]

I don't understand why it is illegal to crack DRM-protected software and devices, while it is still okay to rip a CD (with the same content) or whatever that is unprotected.

I thought the idea there was to do a dickhead end run around fair-use protections, as in, "It's perfectly legal to copy this material, but it's illegal to break the barriers that we put up to prevent you from copying this material, so I guess you can't copy it anyway oh well."
posted by maqsarian at 6:36 PM on June 2, 2010 [2 favorites]

What's so incredibly scary about notice-and-notice? Reading the wikipedia page I got the impression that it worked like this:

1. Copywrite group tells your internet provider that your IP is downloading one of "their" works.

2. IP forwards complaint to you and monitors your traffic for a few days.

3a. You stop uploading said file. Nothing happens whatsoever.
3b. You continue uploading. Copywrite group complains some more, IP starts legal wrangling?


I'm not saying I like the system or approve, but it doesn't seem all that scary to me (especially when contrasted with notice-and-takedown, which can lead to things like the Downfall fiasco).
posted by Orange Pamplemousse at 6:40 PM on June 2, 2010

I'd call that an excellent reason for everyone affected by the law to learn how to use an anonymous proxy

These kinds of laws will lead to an impenetrable darknet before they lead to actual reductions in copyright infringement. I think it makes a lot more sense for copyright holders to prefer services that are out in the open like YouTube, where they can monetize material that is shared by users. Scaring massive amounts of people with legal notices (which they can't back up with actual lawsuits because they would lose more in legal fees than they are actually losing from the infringement) is just going to cause the file sharing to move further underground. The only people who make money from that are the ones who run anonymizing services, VPNs, seedboxes, etc.
posted by burnmp3s at 6:46 PM on June 2, 2010

Michael Geist on Notice&Notice (albeit 3 years old). But I'm with Orange Pamplemousse, it's the best of a bad set of options.

So it's pretty much exactly the same as the DMCA.

Well, not really. First of all, the aforementioned notice & notice creates less of a chilling effect.
Secondably, the statutory limit of 5k for non-commercial is very different than the American situation, obviously.

And thirdly, which might not be that important, is that the exceptions introduced [format & time-shifting, remixing, etc] are statutory rather than via fair use, which means that it's not based on the common law and thus possibly easier for the random individual to understand (I'm not convinced of this, but it's not unreasonable).

There are probably other differences and similarities, but I haven't read the bill yet so I'm just running off news reports.
posted by Lemurrhea at 6:51 PM on June 2, 2010 [1 favorite]

Oh hey, one other neat thing: it gives the right to unlock cell phones, although it's again not clear what that provision's relationship with the digital lock is.

From what I can glean, I could get behind this bill with one addition: "nothing in this bill prevents circumventing digital locks for an purpose covered by an exemption to copyright as defined in this bill and [whatever sections of the current law are relevant]"
posted by Lemurrhea at 6:54 PM on June 2, 2010

Fuck Stephen fucking Harper right in his smug fucking face.

Then there's the detainee torture issue.
posted by five fresh fish at 7:09 PM on June 2, 2010 [1 favorite]

Ahem.

According to Austin, the decision to introduce U.S.-style DMCA rules in Canada in 2007 was strictly a political decision, the result of pressure from the Prime Minister's Office desire to meet U.S. demands. She states "the Prime Minister's Office's position was, move quickly, satisfy the United States." When Bernier and then-Canadian Heritage Minister Bev Oda protested, the PMO replied "we don't care what you do, as long as the U.S. is satisfied."

via Michael Geist's Blog
posted by blue_beetle at 7:30 PM on June 2, 2010

Fuck Stephen fucking Harper...

I'm no fan of Harper, but you are completely deluding yourself if you think a Liberal PM would do any differently.
posted by dry white toast at 7:44 PM on June 2, 2010 [3 favorites]

So if this passes they're going to repeal the recordable media tax, right? Right?
posted by Evilspork at 7:55 PM on June 2, 2010 [1 favorite]

Here's the bill.
posted by Lemurrhea at 8:07 PM on June 2, 2010

The "non-commercial user-generated content" (29.21(1)) exception is interesting. You can use a copyrighted work that has been published (or made available) to create a new work if:

• It's "solely for non-commercial purposes"
• The source (and if possible, original creator) is credited if reasonable
• the work you're using doesn't breach copyright itself (on a reasonable belief standard)
• Your new creation doesn't have a "substantial adverse effect, financial or otherwise" on the market or possible markets for the original.

Which isn't bad. The major problem that I see is the first, and the word solely. Whether solely will be interpreted to allow a ugc creator to have text-ads on the page, or the shared video ads on youtube and such, or whether that brings it out sole purpose. I'm sure there's case law on the subject (albeit not necessarily at the SCC).

My first guess would be that since it says purposes, a ugc creator would probably be fine. Evidence in their favour would be standard business practices, reasonable expected revenue (even if a video goes viral, the fact that none of your other ones did but you've got the same setup on them is good).

Then there are two main other questions to be resolved.
1. When is it reasonable to credit? For example, if you're doing a Youtube video, is it enough to have credits in the text boxes, or does it need to be in the video itself? This comes up with even more importance in audio files and pictures, where the content can easily be divorced from its hosting (the medium is the message, to quote a Canadian). I'm not sure what to think there: generally for a video I think you should attribute right in it. But if you're doing a song, that'll break the flow on a media player. I dunno.

2. Substantial non-financial adverse effect. I'm sure there's case law when it's financial. What is it otherwise, given that moral rights [specifically reputation] are protected elsewhere?
posted by Lemurrhea at 8:24 PM on June 2, 2010 [1 favorite]

Never fear, I'm sure there is a scandal brewing that will lead to another prorogue that will save us from this horrible bill.
posted by Mitheral at 9:21 PM on June 2, 2010 [2 favorites]

I pretty much agree with Giest - it has a number of good points but there's too much poison in this bill. Making Bittorent - and things GENERALLY LIKE IT - explicitly illegal? Fuck that.
posted by GuyZero at 9:23 PM on June 2, 2010

This is, to be honest, what we deserve for electing that smarmy douchebag.

Stupid Canadians.
posted by five fresh fish at 9:32 PM on June 2, 2010

From the cbc article:
The bill would make it illegal for a person to crack a digital lock placed on a device, disc or file.

This is the key problem for me. If I purchase something I should have the right to do whatever I want with it as long as it doesn't hurt others. If I don't have the right to do whatever I want with it (less freedom) there better be some good reason.

If I buy a DRM mp3 crack the digital lock and then play it on 8 stereos in my house at the same time it would sound like shit, but I should be free to do that if I wish (or anything else). It doesn't hurt anyone.

No one should be able to tell companies they can't put a digital lock on something, but the companies should not be able to tell me that I can't override it either if I see fit.
posted by sety at 4:31 AM on June 3, 2010

The "non-commercial user-generated content" (29.21(1)) exception is interesting. You can use a copyrighted work

But you can't rip a DVD to get video content because though CSS has been cracked, it's still a technological measure that "effectively" controls access.

In the US, you also can't use the analog hole with a DVD because Macrovision is codified in law. (Title 17, Chapter 12, Section 1201, subsection k "Certain Analog Devices and Certain Technological Measures"). I don't see an equivalent in the proposed law, but it's kind of weird that it *is* in US law because "protection measures" don't have to be digital, though copyfighters seem to have accepted that they do.

In the US, you have to point a camera at a TV (the ur-analog hole: emulating ears and eyes) or buy it from the iTunes store & play it on the unprotected analog video outputs of an iPod.

Canada has exceptions to circumvention prohibition for privacy (41.14), security (41.15) or encryption (41.13) research, investigating crimes (41.11), interoperability (41.12), accessibility (41.16), broadcasting (41.17) or ¿radio apparatus?(41.18).

The US has a fair-use exception, but in practice it has been useless.
posted by morganw at 12:01 PM on June 3, 2010

Making Bittorent - and things GENERALLY LIKE IT - explicitly illegal? Fuck that.

It looks like it's following the Grokster v. MGM case's notion of "inducing" users to infringe

(2.4)(a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;
[....]
(d) the person’s ability, as part of providing   the service, to limit acts of copyright infringement, and any action taken by the person to do so;

(d) sounds like the cases where YouTube and others have been asked to (semi-automatically) screen for infringing content. The content mob won't let this "those computer geniuses could figure this out if they'd just try" notion die.

So peer-to-peer isn't completely illegal, but the operator has to monitor it, not promote infringing uses and show that they're a viable company without infringing traffic.

Inducement to infringe *is* codified in US patent law and while imperfect, doesn't seem to be as much a mess as copyright law.
posted by morganw at 12:24 PM on June 3, 2010

Argh! WHEN. WILL. THIS. THING. DIE!

It's like a zombie movie that never ends, because the damn thing keeps coming back, just as evil each time. Die!

Oh, you can put a copy of that video game on your hard drive or tv show on your ipod - except you can't, because that would mean breaking a "digital lock." Die!

You can do anything you want on your computer, except use programs that you know "or should have known" to be "designed primarily to enable acts of copyright infringement," as defined by us, or whoever lobbies us hardest this year. Die!

And that recordable media tax tax Evilspork mentions will never go away. They're just going to screw us from both ends by implicitly taxing certain actions and then prosecuting us for doing them. Die!

This scabrous, slimy undead bill will keep coming back again and again as long as the Conservatives are in power, so now I'm praying for an election and when it finally comes I'm voting NDP, Green party, maybe Rhino Party, anything but Conservative or Liberal because someone has to finally put this thing in the damn grave. Die, C-32! Die!
posted by Kevin Street at 2:31 PM on June 3, 2010

Yup. I'm generally a politically conservative guy, but I'll vote AGAINST any party that supports this. I don't care if that means I have to vote for the COMMUNIST SHEEP-LOVER party.
posted by blue_beetle at 3:33 PM on June 3, 2010

What a bizarre bill. It feels like someone at least is making an effort to meet the Canadian public halfway while some petulant man-baby tanks the whole thing by insisting on legislating the incredibly ambiguous and archaic concept of 'digital locks'.

I really hate our House of Parliament. I hate our Government of hateful simpletons and I hate how Her Majesty's Loyal Opposition could not be more spineless. O Canada.
posted by threetoed at 5:18 PM on June 3, 2010 [2 favorites]