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Bill C-11: Copyright Legislation And Digital Lock Provisions Face Opposition In Canada

Copyright Bill Faces Fierce Opposition

UPDATE: The Conservative government's copyright reform bill cleared the House of Commons on Monday night by a vote of 158-135.

Before the end of the summer, breaking a lock on a CD you legitimately purchased to upload songs to your iPhone will be illegal.

Opposition MPs, researchers, artists and even merchants have told the Conservative government the digital locks provisions in its copyright bill make little sense, but the Tories have so far refused to listen.

Monday, MPs are scheduled to vote on the Copyright Modernization Act before sending it to the Senate where it is expected to pass before the summer holidays.

Digital locks are by far the most controversial aspect of Bill C-11, says University of Ottawa law professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law.

On the one hand, the government gives Canadians the right to use and manipulate copyrighted material for their own personal use, allowing for time shifting, back-up copying and format shifting But if there's a digital lock, the lock trumps all other rights. It's illegal to break the lock even for personal or educational use.

"In many ways there is an awful lot to like about the bill," Geist told The Huffington Post Canada, citing new fair dealing provisions that allow for education, parody and satire exceptions, a distinction between non-commercial and commercial use of copyrighted material and exceptions that allow educational institutions to use material openly available on the Internet.

"The one big exception to that though is the lock because, let's face it, the overwhelming majority of people who appeared before the committee, well over 90 per cent of people who participated in the consultations, identified this as their core concern and they all argued against the approach that we see in Bill C-11," Geist said.

The public's concern about overarching digital lock provisions, however, were sidelined in favour of American interests, he argues.

"I don't think there is any doubt that this is strictly a function of U.S. pressure," he said in an interview Friday.

The opposition tried to bring forward amendments to the bill but the government rejected them. Even an amendment that would have allowed those with perceptual disabilities, such as deaf or blind Canadians, to break digital locks in order to transfer the content to Braille or to add subtitles for closed captioning was defeated.

NDP MP Charlie Angus was livid Friday over the government's refusal to make a minor tweeks to the legislation.

"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," Angus told Industry Minister Christian Paradis.

"Why would the Conservatives not work with us 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?"

Paradis told Angus he was citing an isolated situation and that, as a whole, the bill is fair.

"When we talk about digital locks, we know this provides protection when the time comes to innovate," he told Angus.

Angus' colleague, fellow musician and NDP heritage critic Andrew Cash told HuffPost that as an artist he believes the digital locks go too far.

"Sharing of our work in the digital space is not necessarily a bad thing for the bottom line for artists," he said.

"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," Cash said about reaching new fans.

"The problem now is that multi-million media companies want to stomp that behaviour out of existence, but it is really counter-productive," he said.

Jason Kee, the director of policy and legal affairs with the Entertainment Software Association of Canada, argues the locks are needed to keep his industry thriving and to stop piracy in online gaming.

Kee credits digital locks, or technological protection measures, for the success of his industry. They are pervasive both on games and consoles, such as PlayStation and Xbox, which have locks built in to prevent piracy by recognizing when someone has used an unauthorized copy of a game.

Console hacking has become a big problem in Canada, Kee says, because there hasn't been any legislation to stop it until now.

"The industry is doing well in spite of piracy," he said.

What upsets him about the discussion surrounding C-11 is that people are failing to grasp that the future of digital growth, with programs such as Spotify and Netflix, is all based on digital locks, he said.

"(Locks) allow us to control the level of access that our customer gets," Kee said. "So for example, if you want to just rent a film as a opposed to buying it outright it is the digital lock that makes that determination between the rental for a specific period of time vs. full time."

The Conservative's copyright legislation supports new business models in the digital realm, he says.

Paradis, one of the minister's in charge of copyright, says the federal government has struck the right balance with C-11.

"Taken together, the measures in the bill 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," the Industry Minister said Friday in a speech to Parliament.

But Geist disagrees.

He argues claims of piracy have been overblown by players such as the Entertainment Software Association of Canada and that the gaming industry is actually thriving and still on a growth projectory. If the industry is booming with the current rules, where is the need for more aggressive legislation, he asks.

"To reject some amendments that really have no economic impact at all, (and) have nothing to do do with piracy, frankly just strikes me as mean spirited," he said of the government's decision.

The battle over copyright legislation may not be over, Geist adds.

A constitutional challenge could be brought forward on the grounds that the federal government, which is responsible for copyright, has over-stepped its bounds.

"The provinces have responsibility for property and civil rights, and digital lock rules ... seem to be far more about regulating your property rights than they are about copyright," Geist said.

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