Friday, February 10, 2012

Bill C-11, SOPA and UGC

Hot on the heels of last months' quashing of the US government's proposed SOPA/PIPA acts by massive public protest, the Canadian government has reembarked on its own turbulent journey toward copyright reform. Bill C-11 - An Act to amend the Copyright Act - was first "read" in September 2011, and the second reading debate concludes today. The bill is thus moving ahead despite, as Michael Geist points out, "huge public concern with the bill's digital lock rules and proposed SOPA-style amendments."

Indeed, Geist reports that during yesterday's debate a number of Conservative MPs highlighted that Bill C-11 is "one of the most consulted pieces of legislation in recent memory." But as he, Peter Nowak and others have pointed out, the key complaint that came out of these public consultations -- including a massive amount of written feedback submitted by individuals and organizations back in 2009 (here's mine) -- was that the digital locks rules seemed to supersede many (if not most) of the individual (i.e. user/audience) rights outlined in the Bill. As Geist describes, the problem here isn't that the government failed to consult the public about the contents of Bill C-11, but rather that it appears to be disregarding public concerns and opinion. He writes, "The question is whether it has taken the public comments into account and conducted a full analysis of the implications of its current proposal. There is reason to believe that it has not."

At issue here is that the Bill appears to enable corporations to largely decide for themselves how users will be allowed to use commercial technologies and content...a concern in no way assuaged by recent statements by Industry Minister Christian Paradis that the government "cannot speculate" on how the digital lock rules will be enforced (as highlighted in Geist's post). Which is really too bad, as the Bill also outlines a number of really awesome amendments addressing important issues like the use of copyrighted materials in (published) user-generated content (see below). As Peter Nowak writes in an op-ed that appeared yesterday on the Globe & Mail:

While C-11 introduces a raft of new beneficent rights for the ordinary person, such as making it explicitly legal to copy a CD onto an iPod or mash-up content into a YouTube video, many are worried that the lock provision will act as a negative “super-clause” that will trump all the other good stuff.   
In other words, if you want to copy that CD onto your iPod, go right ahead – unless the record label that produced it says you can’t. Want to delve into the electronic guts of your video game console, laptop or DVR to see how it works, perhaps with an eye to improving it? That’ll be off limits because [or perhaps more accurately "if"] the manufacturer says so.

Whereas protests in the US and in the EU (led by Poland) led to important (albeit small and likely temporary) and relatively immediate victories against overly-industry-centric copyright laws (SOPA and ACTA, respectively), Canadian objectors (first to Bill C-32 and now to Bill C-11) have been engaged in a 2-year process of letter writing, petition signing and participating in democratic processes...seemingly to little or no avail. Perhaps our more tempered approach has diluted the core message: the digital locks provisions (e.g. technological protection measures, circumvention prohibitions) are too sweeping and imbalanced, and come with too many uncertainties.

As mentioned above, however, that doesn't mean that there aren't really great aspects to the Bill as well. In fact, that's possibly what makes the presence of the so-called "super-clause" so disappointing. For instance, check out the section on non-commercial user-generated content:

Non-commercial User-generated Content
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individ-ual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if  
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;  
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;  
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and  
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

While I'm a tad concerned with that last phrase "not a substitute for the exiting one" (maybe one of you can help me out here: what if the UGC work is better than the original? Would that count as a substitute?), there's a lot in there to feel very optimistic about. I also have yet to examine how exceptions for people with disabilities are addressed (e.g. perceptual disabilities) and how these are balanced out against the "super-clause". In the meantime, though, the bill continues to advance with little resistance from Canadians. What do you think: Time for a more vocal and active opposition?