The “Deliverance” of C-61 Begins

Here we go… [UPDATED: Links added]

It’s been a week since the Minister of Information Industry, Jim Prentice, dropped a piano Bill C-61 on us. Thanks to Prof. Michael Geist, we had some warning: This bill would not be a brave surge forward into the 21st century for Canada, embracing the Information Age and showing the world that we lead in promoting innovation and civil liberties, that we have the wisdom to strike balance where others are stricken with fear, and that we anticipate rather than kowtow.

This bill is instead sycophantic obsequiousness to groups that should be politically and legally notwithstood according to any definition of Canadian sovereignty or democracy.

Our public interest groups (Canadian Internet Policy and Public Interest Clinic – CIPPIC), private interest groups (Canadian Music Creators Coalition – CMCC), and even corporate lobbyists (the Business Coalition for Balanced Copyright – BCBC) have spoken, but it was to the U.S. Ambassador, the RIAA, the MPAA, and the other foreign interests that elected Members of Parliament Jim Prentice and Josee Verner listened.

If not for the environmental catastrophe that would be precipitated by tons of polycarbonate in open water, I would advocate dumping boatloads of blank CD-Rs and flas memory cards in Boston Harbour. Why should our laws be dictated by a government not elected by us? I think I’ve heard that before.

Anyway, I’m going to spend the next while continuing to sink my teeth into the meat of C-61 and will try to get specific in critiquing its shortcomings.

I’ll give you a taste of some detailed analysis, however:

Section 17 of C-61 adds an obfuscatingly numbered s. 29.21 to the Act. This section 29.21 includes the following:

(1)[The exceptions to infringement withstand as long as]

(c) the individual, in order to make the reproduction, did not circumvent a technological measure or cause one to be circumvented…

[In other words, Technological Protection Measures (including digital rights management and anything else the major copyright holding companies can dream up, according to the new s.41 - more on it later) trump all user rights. Period. If there's a TPM, the company wins, you lose, no more exemption.]

(2) If the individual has downloaded the work or other subject-matter from the Internet and is bound by a contract that governs the extent to which the individual may reproduce the work or other subject-matter, the contract prevails over subsection (1) to the extent of any inconsistency between them.

[In other words, End User License Agreements, Terms of Service/Use Agreements, and other click-wrap agreements are now given carte-blanche to pre-empt the statutory regime. Let me clarify: A corporation anywhere in the world will be able to trump the Canadian Copyright Act by making you click "I Agree". I can only begin to list the critiques of this approach. I would suggest my own paper, "Opening Source: Has Davidson Shut the Door on the Fair Use / Fair Dealing Exceptions, and thus on User's Rights"; and I suggest anything by Stanford's Margaret Jane Radin, such as "Regulation by Contract, Regulation by Machine," and "Regime Change in Intellectual Property: Superseding the Law of the State with the 'Law' of the Firm."]

There’s more. I’ll keep writing as often as I can, and I will be as thorough as time will allow me to be.

I will be comparing C-61 (and its progenitor, the DMCA) to contrary (and noble) goals stated either as PR here (such as the Preamble to C-61, which promises balance) or as forgotten debate elements (such as Sen. Patrick Leahy eloquent speech to the U.S. Senate suggesting that no diminishing changes be made to Fair Use in the DMCA).

I am also starting to think about the statutorily-allowed LIMITED monopoly that is created by IP, and how the degradation of those limits fits within competition policy.