The Problem with Bill C-32

This past week, the Honourable James Moore, Conservative Minister of Heritage & Official Languages and the Honourable Tony Clement, Conservative Minister of Industry introduced Bill C-32, “Copyright Modernization Act“ at the Electronic Arts studios in Montreal, Quebec. As its title suggests, the aim of the bill is to modernize copyright law in Canada, an admirable goal considering that our copyright laws haven’t been reviewed since 1997. In Internet time, that’s nearly an eternity, and a lot has changed since then. With respect to its stated goal, Bill C-32 is a reasonably good proposal of law. It contains some much needed legislation that will indeed clarify and modernize our copyright code.

For example, the Network Services section provides a safe harbour clause for Internet service providers and other network operators. In particular, the section provides legal protection for hosting service operators whose customers may have uploaded copyrighted works to their servers. Likewise, the Copyright Infringement section sets maximum monetary awards for copyright owners who successfully charge an individual with infringement of works for personal or commercial use. Given the astronomical awards granted by American courts in both the Capitol vs. Thomas and RIAA vs. Tenenbaum cases, this is an extremely important clause.

Unfortunately, these positive aspects of the proposed law are counteracted in the Technological Protection Measures and Rights Management Information section of the bill. In this section, the proposed law explicitly bans the use, manufacture, import, distribution, sale, or rental of any technology or device capable of circumventing any technological protection measures (also called digital rights management, or DRM) schemes that have been placed on the digital content by its distributor. Under the proposed law, any use of the aforementioned technologies constitutes an immediate infringement of copyright, and makes the responsible party liable to all damages outlined therein. The problem with this section is that it effectively removes all of the rights granted in earlier sections of the bill, including Non-commercial User-generated Content and Reproduction for Private Purposes, the two sections that the government is using to desperately peddle this bill as consumer-positive, when in fact it is nothing of the sort. In particular, the latter section proposes that it be made legal to create personal reproductions of copyrighted material so long as a number of conditions are met, one of which is that “the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented.”

And just like that, with a single sentence, all of the ‘rights’ that the government is waving around as they insist that their approach to copyright reform is not bought and paid for by foreign media conglomerates are struck from the record. You see, with an anti-circumvention clause built into our copyright law, the ability to use legitimately purchased digital media in a fair and open manner (generally called fair use in the USA or fair dealing here in Canada) ceases to exist. The reason for this is because an excruciatingly small minority of the digital media that is for sale today is unencumbered by some form of digital rights management. DVDs? Encrypted. Your player contains software that allows them to be read. BluRay discs? Same deal. Video Games? Absolutely. Why do you think the government introduced the law at Electronic Arts’ Montreal studios? Cable television, Netflix digital downloads, eBooks, computer software of all sorts, online television from Hulu and other major providers, and an uncountable number of other consumer media products are all protected by some form of DRM. About the only type of digital media that you can actually buy that doesn’t come coated in some form of protection measure is music, but millions of people who purchased music from the iTunes store prior to January of 2009 still have affected tracks in their music collections. Under the proposed law, none of this digital content can be backed up, moved to a different device, transcoded to a different format, or otherwise tampered with, because to do so would require that its owner break the DRM that has been placed on it, thus making that person a criminal in the eyes of Canadian courts.

Perhaps the most interesting thing about laws of this sort is that they are known to be ineffective at stopping internet piracy. Way back in 1996, before Napster, KaZaa, Limewire, or BitTorrent were invented, a group of countries got together and signed the World Intellectual Property Organization Treaty, a document that required that signatory countries enact laws prohibiting the circumvention of digital rights management schemes. The United States did so in its 1998 Digital Millennium Copyright Act, and 12 years later, the Canadian government is seeking to ratify the treaty under pressure from the United States and the European Union by following suit. Unfortunately for the government, a lot has happened since the turn of the century, and many consumers are now aware of the problems that rights management schemes can cause them while trying to use their legitimately purchased media in seemingly acceptable ways. In those same 12 years, the piracy situation has yet to stabalize, and the various media industries still attribute billions of dollars per year in losses to digital piracy. So what’s going on? If anti-circumvention laws were truly effective, wouldn’t the rate of piracy drop in countries where they are introduced?

Allow me to explain with a quote from one of my previous posts, An Open Letter to the Conservative Government of Canada:

Anti-circumvention laws styled after those of the United States’ 1998 Digital Millenium Copyright Act serve only to reduce consumer choice while failing to prevent digital piracy in any capacity whatsoever. Lawmakers would do well to understand that digital rights management (DRM) schemes are no more than the digital counterparts of real-world mechanical locks. There has never been, and will never be, a lock that cannot be broken by any determined party with time, knowledge, and resources on their side. In the digital case, a single defeat of the DRM system designed to protect digital media often results in the widespread availability of that media to any and all interested parties by way of the internet. Therein lies the biggest problem with DRM schemes: One does not have to be a determined hacker to access the media that a DRM scheme is intended to protect; one simply requires access to the internet, and knowledge of a website that distributes media that has been helpfully unlocked by other, more capable parties. The global nature of the internet ensures that the parties most interested in defeating digital rights management schemes need not operate in countries unfriendly to their cause. As such, a government mandate that protects the sanctity of digital locks will not have the desired effect of preventing widespread domestic piracy. Instead, such a ruling will serve only to impact the ability of consumers to utilize their rightfully purchased digital media in a fair and open manner.

Since anti-circumvention legislation has not reduced piracy rates in countries where it has been introduced, and since the digital rights management schemes that it aims to sanctify often do little to stop widespread piracy, but do inconvenience legitimate customers on a wide scale, it is a simple matter to conclude that this type of legislation is not, and never will be, in the best interests of the consumer, who also happens to be the voter responsible for electing the officers of government that attempt to introduce it into law. So why are your elected representatives being complacent in protecting your interests? Perhaps you should ask them about it.

Those readers with an interest in copyright law, internet piracy, and the effects of anti-circumvention legislation are encouraged to read Ripped by Greg Kot and Moral Panics and the Copyright Wars by William Patry, as well as to check out Professor Michael Geist’s excellent Blog.