Canada’s copyright reform legislation, Bill C-11, is now in the stretch run, having completed its requisite tour of duty through parliamentary committee. It’s now being sent back to Parliament for its third reading, after which it’ll be voted on and passed by the Conservative majority. With a Senate reading and royal assent afterward, it should finally become law this spring.
In the end, C-11 is looking like a good-news, bad-news situation. The bad news is, the government has willfully ignored the concerns of thousands of Canadians – not to mention librarians, educators, retailers, artists and others – over the legislation’s digital lock clause, which will make it illegal to crack technical protection measures on content and devices.
The issue has long been the sticking point for the general public, since it’s essentially a “super-clause” that can trump all the bill’s other positives. While things like format shifting and the sort of mash-ups that YouTube is known for will now be expressly permitted and protected by law, that won’t necessarily be the case if a technology or entertainment company can prove that a digital lock was broken in doing so. Beyond that, the Electronic Frontier Foundation has a good summary of how else the super-clause will be bad for Canada.
Given the content companies’ behaviour over the past few years, both south of the border with efforts such as the Stop Online Piracy Act and in Canada, it’s a fair bet they’re going to try to wield their new super-clause like a hammer. The countdown for the first lawsuits will soon begin.
Critics, including opposition parties, had suggested a slight amendment that would have linked the breaking of digital locks to willful copyright infringement. In other words, if you cracked a lock on a device or piece of content for your own personal use, you’d be fine, but if you did so with the intent of distributing such goods or somehow profiting from the act, you’d be fair game for the tech and entertainment companies.
It was a reasonable compromise from the consumer’s perspective, but not so for the industry, which successfully convinced the government that proving such infringement would make enforcing the locks considerably more difficult.
The good news is that there are a host of exemptions where breaking a digital lock is permitted, such as when companies or individuals are trying to test a particular technology’s security (what are the Vegas odds on a file sharer trying that excuse in court?). Moreover, the government can add exemptions later as it sees fit, which will hopefully prevent egregious efforts to bash people with the super-clause hammer. If a record label, for example, tries to do something stupid like prevent its CDs from being copied, the government could step in and exempt that particular crack.
One other bonus is that the legislation will be reviewed every five years. There will doubtlessly be a host of studies done over this time to determine the various effects the new laws are having, which should shed some light on what’s working and what isn’t. In a nutshell, there will be the opportunity to fine tune things.
Perhaps the biggest good news for every-day people from this whole affair is that, just as the government ignored the public on the locks issue, it also willfully ignored industry lobbyists on some of their bigger demands. As University of Ottawa professor Michael Geist has pointed over the past few weeks, entertainment companies have been lobbying (and still are) for stricter rules, such as making third-party websites liable for copyright infringement, the sacking of the YouTube clause, the imposition of an “iPod” copying tax and a whole host of other measures.
With the committee phase done, the government stuck to its guns and ceded very little ground to these companies potential additions, putting forward only some minor amendments. From the consumer’s perspective, that’s commendable.
Geist pointed out the amazing irony of all of this in a column for the Ottawa Citizen on Tuesday. Heritage Minister James Moore has gone to great pains during this long, drawn-out process of repeatedly mentioning (and tweeting) how much support Bill C-11 has had from industry, yet he also once referred to the most vocal opponents as “radical extremists.”
In the end, the general public supported more of C-11 – with the exception of the locks clause – than the entertainment companies did. Hopefully that bodes well for the future and is not lost on the government, because it’s a little clearer now who the “radical extremists” are.