Bill C-61 (39th Canadian Parliament, 2nd Session)

Bill C-61, "An Act to amend the Copyright Act", was a bill tabled in 2008 during the second session of the 39th Canadian Parliament by Minister of Industry Jim Prentice. The bill died on the table when the 39th Parliament was dissolved prematurely and an election was called by the Governor General Michaëlle Jean at Prime Minister Stephen Harper's request on September 7, 2008. [http://www.itworldcanada.com/Pages/Docbase/ViewArticle.aspx?ID=idgml-2ea4d00b-3de4-462b&Portal=448d158c-d857-4785-b759-ffa1c005933c&sub=46833] . The Conservative Party of Canada has promised in it's 2008 election platform to re-introduce a bill containing the content of C-61 if re-elected. [http://www.cbc.ca/technology/story/2008/10/07/tech-conservatives.html]

The bill was the successor to the previously proposed Bill C-60 (38th Canadian Parliament, 1st Session), and was the government's most recent attempt to update Canadian copyright laws. Specifically, the Conservative government claimed that the bill was intended to meet Canada's WIPO treaty obligations. Bill C-61 attracted widespread criticism from critics who claim that it does not strike a fair balance between the rights of copyright holders and consumers.cite web |url=http://www.cbc.ca/technology/story/2008/06/12/tech-copyright.html | title=Copyright law could result in police state: Critics. | accessdate=2008-06-12 | author=Nowak, Peter|publisher=CBC News ] There is also confusion between C-61 and the Anti-Counterfeiting Trade Agreement which would also significantly modify copyright in Canada.

Jim Prentice claimed that it would "expressly allow you to record TV shows for later viewing; copy legally purchased music onto other devices, such as MP3 players or cell phones; make back-up copies of legally purchased books, newspapers, videocassettes and photographs onto devices you own" [http://www.stephenglauser.com/archives/news/the_end_of_digital_freedom_in/] . However, the bill makes it illegal to circumvent DRM technologies effectively rendering the rights granted useless for DRM protected digital media. [cite web |url=http://www.michaelgeist.ca/content/view/3025/125/ | title=The Canadian DMCA | accessdate=2008-06-23 | author=Geist, Michael ]

Details

The proposed bill contains the following changes on what constitutes copyright infringement and what does not for personal use:cite web |url=http://www.thestar.com/article/442677 | title=Troubling details in new downloading law | accessdate=2008-06-23 | author=Geist, Michael|publisher=The Star ]
* Time shifting, limited format shifting, copying for personal use, and device transferring of media is legal as long as:
* Citizens do not retain recorded programs for extended time
* Are not backups of DVD's (can only be of videocassettes in format shifting ).
* Do not circumvent any and all "digital locks"
* Transferring of media occurs only once per device owned by the purchaser of the original copy while retaining the original copy.
* Are not of shows broadcast with "no recording" flags
* Are not governed by any other clauses between the right holder and consumer (ex. Amazon's non-transferability clause, promotional use only, do not sell/transfer, etc.) cite web |url=http://blogs.pcworld.com/staffblog/archives/007113.html | title=Canada Warming Up Its Own DMCA | accessdate=2008-06-23 | author=Townsend, Emru|publisher=PC World ]
* Format shifting must comply with the twelve processes listed [http://www.michaelgeist.ca/component/option,com_docman/task,doc_download/gid,16/ here] (pdf) in addition to all other conditions listed. [cite web|url=http://www.faircopyrightforcanada.ca/61-reforms-to-c-61-day-4-format-shiftings-12-step-approval-process/|title=61 Reforms to C-61, Day 4: Format Shifting's 12 Step Approval Process|accessdate=2008-06-27 |author=Geist, Michael|publisher=Fair Copyright For Canada] Hosts, such as ISPs, will no longer have legal responsibility under the new bill when their services are unintentionally used to provide access to copyrighted material. Prentice, Jim. [http://www2.parl.gc.ca/HousePublications/redirector.aspx?RefererUrl=Publication.aspx%3fDocid=3570473%26file%3d4 "Bill C-61, An Act to Amend the Copyright Act."] House of Commons of Canada (Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008) June 12, 2008. Retrieved on 2008-07-26.
(a)Section 31.1.
(b)Section 20, Subsection 5.01 (c).
(c)Part II - Performers’ Rights 1.1. ]

Methods of protecting privacy would become legal under the proposed bill, however distribution of software to do so will be illegal, effectively canceling out the new right.

The bill will make circumventing all digital locks illegal, including locks on the Internet. cite web|title=The Impact on Newspapers of Bill C-61, an Act to amend the Copyright Act|url=http://www.cna-acj.ca/en/news/public-affairs/the-impact-newspapers-bill-c-61-act-amend-copyright-act|accessdate=2008-07-07|author=Gollob, David|publisher=CNA]

It modifies what libraries can do in providing digital copies, such that they would be allowed to create digital copies for patrons, but the copies must self destruct/be destroyed within 5 days of creation

It modifies the copyrights of performers and their performances such that a performer is given the sole right to:
* "communicate [their performance] to the public by telecommunication."
* "to perform [their performance] in public."
* fix their performance in material form, such as recording their performance onto a dvd.
* reproduce, rent, sell or otherwise transfer ownership of any sound recording of their performance. Proposed fines for breaking the law are (per each instance, personal use):
* A new statutory damage award of $500 for music downloads.
* Since the $500 limit does not apply to all cases, fines up to $20,000 (defined in previous bills) [cite web |url=http://ca.news.yahoo.com/s/capress/080612/technology/technology_copyright_crackdown | title=Proposed copyright amendments would lower penalty for illegal downloads | accessdate=2008-06-23 | author=Rennie, Steve|publisher=Canadian Press (Via Yahoo!) ] may be incurred (per instance) for:
* Circumventing digital locks or DRM regardless of reason/intent.
* Uploading regardless of awareness, including uploading to YouTube or peer-to-peer networks. Note that peer-to-peer programs generally allow files to be both uploaded and downloaded by default.
* "Making available" of copyrighted material (regardless if it was actually uploaded). [cite web |url=http://www.faircopyrightforcanada.ca/a-week-in-the-life-of-the-canadian-dmca-part-five/ | title=A Week in the Life of the Canadian DMCA | accessdate=2008-06-25 | author=Geist, Michael ] In the case of commercial circumvention of DRM, Clause 32 of the Bill specifies penalties of $1,000,000 and/or five years imprisonment on conviction on indictment, or $25,000 and/or six months imprisonment on summary conviction.

Confusion with Anti-Counterfeiting Trade Agreement

There have been confusion between Bill C-61 and ACTA, evident by letters sent by Jim Prentice detailing that no border checks will occur. The proposed border checks are part of ACTA, and not Bill C-61.

Reaction

A poll using the following question resulted in 45% of the population against, and 45% of the population in favor of the question. cite web |url=http://www.cbc.ca/technology/story/2008/06/19/tech-copyright.html | title=Canadians Divided over copyright bill: survey | accessdate=2008-06-23 | author=Nowak, Peter|publisher=CBC News ] [http://angusreidstrategies.com/uploads/pages/pdfs/2008.06.19_Copyright.pdf Canadians Evenly Split on Amendments to Copyright Act] Angus Reid Strategies. Retrieved on 2008-06-19.]

By age, 58% of those aged 18-34 were opposed as compared with 37% of those 35-54 and only 27% of those older. The poll has been criticized for not mentioning any of the anti DRM circumvention provisions and an inaccurate definition of "hacked"

upport

Proponents of the bill, including some copyright holders in the entertainment industry, have called it a much needed "assurance that [investors are] protected." They have also called it a "win win" balance between consumers and copyright holders with some pushing further asking for format shifting to be made illegal.cite web |url=http://www.nationalpost.com/news/story.html?id=590280 | title=Canada's new copyright bill:More spin than "win-win" | accessdate=2008-06-23 | author= De Beer, Jeremy|publisher=National Post]

The MPAA and RIAA support the proposal, as they see it as finally bringing in Canada to WIPO standards, having lobbied/pressured hard for stricter copyright rules. [cite web |url=http://www.michaelgeist.ca/content/view/1910/125/ | title=MPAA & RIAA Criticize USTR Position on Canada | accessdate=2008-07-02 | author= Geist, Michael]

The Alliance of Canadian Cinema, Television and Radio Artists is supportive. According to Brad Keenan, Director, ACTRA Performers' Rights Society and Sound Recording Division, "the Bill not only introduces the new concept of format shifting, it is also [revises] existing rules on time-shifting. ACTRA believes that consumers should have flexibility, however, artists must be compensated for uses of their work and we don't see this part of the equation in the government releases. We would be deeply concerned if the Bill allows people to copy artists' work onto media devices like iPods without compensation for creators; and, also if existing levies and royalties are affected by this Bill." The current bill does not allow such actions without compensation, and does not override EULA and other forms of agreements. Stephen Waddell, ACTRA's National Executive Director, says it has been "more than a decade since Canada signed on to the WIPO copyright treaties," and that, "implementing these treaties as this Bill does, will bring our laws into the 21st Century." [cite web |url=http://www.actra.ca/actra/control/press_news1?id=10677 | title=Copyright Reform A Good First Step | accessdate=2008-06-23 | author=Ponting, Susan |publisher=ACTRA National ] However, among the ranks, there is dissent by some ACTRA members despite the group's public stance. Jason Chesworth, a member of ACTRA on Broadcast This wrote that he, "questioned the union’s position," and that he, "wholeheartedly disagree [s] with ACTRA…in fact….believe [s] that the proposed changes will become a major detriment to artists trying to create content while protecting only those at the top" [cite web |url=http://www.zeropaid.com/news/9606/ACTRA+Member+Dismayed+Over+ACTRA+Stance+on+Copyright+Reform | title=ACTRA Member Dismayed Over ACTRA Stance on Copyright Reform | accessdate=2008-07-02 | author=Wilson, Drew |publisher=Zero Paid ]

Criticism

Opposition to the bill has come from many sources, including:

Liberal MP Scott Brison, who has called the bill a "US made law" that would establish a "police state." A substantial majority (76%) of the population agrees the bill was drafted in the US, despite claims it was "born in Canada."

The New Democratic Party, which has promised to fight the bill, and is strongly opposed, with statements by NDP Leader Jack Layton and NDP Member Charlie Angus. [cite web |url=http://www.faircopyrightforcanada.ca/ndp-response-to-the-prentice-dmca/ | title=NDP Response to the Prentice DMCA | accessdate=2008-06-23 | author=Layton, Jack ] [cite web|title=Question to Minister of Industry: Bill 61, Copyright Legislation|url=http://www.charlieangus.net/houseitem.php?id=98|accessdate=2008-07-07|author=Angus, Charlie]

As of September 29th, 2008 , more than 92,000 people have joined the Facebook group [http://www.facebook.com/group.php?gid=6315846683 "Fair Copyright for Canada"] , started by law professor Michael Geist, to protest Bill C-61. Geist's [http://www.faircopyrightforcanada.ca/ blog] also contains educational resources on copyright reform, and provides tools for constituents to contact their local Members of Parliament. Micheal Geist has also started a series on 61 possible reforms to Bill C-61 that would make it more palatable. [http://www.michaelgeist.ca/content/view/3117/125/] In addition, the magazine "ComputerWorld Canada" has started its own petition drive, asking the government to amend the bill because it discourages experts and other coders from conducting innovative research. ["ComputerWorld Canada", August 1, 2008 (vol 24, #15):pp. 1, 16. ]

The Canadian Software Innovation Alliance, an association of open source developers questions the bill, because of its potentially harmful effects on open source software modification. Spokesman Bob Young, Lulu Inc's CEO (and the former CEO of Linux vendor Red Hat) says "We're crafting these laws without having anyone from the technology industry engaged in the process." He contends that the bill caters too closely to the content industry and not to engineers and software developers. [Rafael Ruffolo, "Bob Young Leads Copyright Fight." 'ComputerWorld Canada', June 20, 2008, p. 3] [cite web|title=Canadian open source community upset over proposed copyright law|url=http://www.linux.com/feature/141384|author=Palmer, Ian|publisher=Linux.com|accessdate=2008-07-16]

Consumer groups including Option consommateurs, Consumers Council of Canada, Public Interest Advocacy Centre (PIAC), the Canadian Internet Policy and Public Interest Clinic (CIPPIC), and Online Rights Canada have voiced opposition on not being consulted in the creation of the bill.

The Appropriation Art Coalition, condemning the Bill saying "Copyright is meant to nurture the rights of creators, not suppress and criminalize artistic practice. It is not the responsibility of any government to legislate art." [cite web |url=http://www.appropriationart.ca/bill-c-61-made-in-the-usa.htm|title=Appropriation Art Condemns Bill C-61|author=gduggan(online nickname) |accessdate=2008-06-25|]

The Canadian Association of University Teachers, which has opposed the bill as "making it more difficult for university and college teachers and students to have access to learning and research materials". It noted that material that can be copied now in paper format would not be legally copyable in electronic format when it is digitally encrypted. James Turk, exectutive director said, "This could be the effective end of fair-dealing, the right to copy and use works for purposes such as research and private study." ["New Copyright Bill Harms Educators and Researchers," "CAUT Bulletin" 55, 6 (June 2008), pp. A1, A4.]

Some opponents, like the CIRPA and the CRIA have said the bill should focus more on commercial piracy instead [cite web |url=http://www.macleans.ca/article.jsp?content=20080616_092813_10676 | title=A users guide to the copyright bill | accessdate=2008-06-23 | author=Kennedy, Kate and Selley, Chris |publisher=Macleans ] , while others have called into the question of the enforceability of the new bill [cite web |url=http://www.financialpost.com/most_popular/story.html?id=582892 | title=New Copyright Act targets online piracy | accessdate=2008-06-23 | author=Schmidt, Sarah | publisher=Canwest News Service (Via Financial Post) ] . Other copyright holders and artists, like the CMCC, have spoken out against the bill in its entirety. [cite web |url=http://www.mediacastermagazine.com/issues/ISArticle.asp?id=85644&issue=06132008 | title=Copyright Reform Bill Doesn't Help Canadian Artists: CMCC | accessdate=2008-06-16| author=| publisher= Mediacaster Magazine ]

Others have stated that the new bill would make criminals out of ordinary people who are, for example, using a multi-regional DVD player (popular for immigrants, who otherwise would be prevented from watching movies from their countries of origin; and tourists, who would be prevented from watching videos bought abroad), transferring legitimate DVD media to iPods, or using various other devices. [cite web |url=http://www.palluxo.com/2008/06/14/canadian-ipod-users-beware-of-government-of-canada/ | title=Canadian iPod Users: Beware of the Government of Canada | accessdate=2008-06-23 | author=|publisher=Pulluxo ] Backing up a computer that contains copyrighted material might also be illegal under the new law. [cite web|title=61 Reforms to C-61, Day 10: Music Shifting Provisions May Conflict With Computer Backup Systems|url=http://www.michaelgeist.ca/content/view/3147/125/|accessdate=2008-07-07|author=Geist, Michael]

There have also been criticism for making "technology trump whatever rights consumers or competitors might have otherwise had", in that people only have whatever rights the right holders give them in superseding "agreements", for example, EULA, digital contracts shown when users install, download, etc.) In addition, there has been criticism about the fact that purchasing songs as a gift and transferring the song onto a device owned by the gift's recipient under the new bill would be illegal.

Editorial reviews of the bill have been mostly negative or neutral. In a listing of editorials compiled by Michael Geist there were no on topic editorials expressing positive support for C-61. [cite web |url=http://www.michaelgeist.ca/content/view/3122/1 | title=Mapping C-61 Media Coverage | accessdate=2008-06-27 | author=Geist, Michael ] . In addition, the Canadian Newspaper Association is critical of the bill, for having negative impacts on news gathering.

In late July 2008, Michael Geist criticized the bill on environmental grounds. Specific criticisms include:
*If enacted, Bill C-61 would not allow unlocking of cellphones, forcing consumers to acquire a new cell phone each time they switch a carrier, creating excess waste.
*Bill C-61, which parallels American DMCA, could allow lawsuits over the legality of companies that offer to recycle printer ink cartridges.
*Bill C-61 creates new barriers in the race toward network-based computing, since the ICT industry accounts for more carbon emissions than the airline industry. Network-based computing -- often referred to as "cloud computing" -- basically are large server farms situated near clean energy sources. The bill could prevent developments on Canada's northern high-speed optical networks with zero carbon emissions. Bill C-61 would further prohibit many uses of network-based computing such as video recording services, backup of data, etc. [cite web|title=Government copyright bill runs counter to emphasis on environment|url=http://www.canada.com/ottawacitizen/news/bustech/story.html?id=0ea363f6-f0e0-4a69-9a9f-414e4e65a4cb|author=Geist, Michael|publisher=Ottawa Citizen|accessdate=2008-07-25]

The Canadian Library Association has released an [http://www.cla.ca/AM/Template.cfm?Section=Copyright_Information&Template=/CM/ContentDisplay.cfm&ContentID=4507 advocacy kit] to oppose the new bill, citing concerns that the bill does not protect the public interest.

Notes

Related Articles

* Anti-Counterfeiting Trade Agreement (ACTA)
* Bill C-60 (38th Canadian Parliament, 1st Session)
* Canadian Copyright Act
* DADVSI
* Digital Millennium Copyright Act (DMCA)

External links

* [http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3570473&Language=e&Mode=1 Parliament Canada - Bill C-61 - Table of Contents]
* [http://www2.parl.gc.ca/HousePublications/redirector.aspx?RefererUrl=Publication.aspx%3fDocid=3570473%26file%3d4 Parliament Canada - Bill C-61 - complete text of the bill]