Separating facts from hype about C-32

September 27th, 2010 by Barry Sookman Leave a reply »

Some anti-copyright critics compare the proposed copyright amendments in Bill C-32 with the copyright laws of the US to argue that Canadian copyright law with Bill C-32 passed would be more restrictive than in the US. International comparisons of copyright laws can be a very useful tool to gauge how Canadian laws stack up with international standards and norms. Regrettably, anti-copyright advocates often make their case by inaccurately and misleadingly describing US law to make it look more permissive than it is and by describing Bill C-32 in ways that makes it appear more restrictive than it is. This makes it difficult for the vast majority of the public to really assess Bill C-32 and to make properly informed judgements about it.

An example of this are several widely disseminated blogs written by Prof. Geist purporting to compare “how badly” C-32 stacks up against US law on two key issues in the Bill, digital locks and fair dealing. On these issues he argues that “Canada is far more restrictive than the U.S.” However, in making his arguments, Prof. Geist makes numerous errors in comparing Bill C-32 and US law.

Here are some illustrations from his recent blogs, The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions, U.S. Developments Demonstrate Canada’s C-32 Digital Lock Rules More Restrictive Than DMCABill C-32: My perspective on the key Issues, and CRIA Goes To Washington:

Geist claim: “U.S. rules contain a mandatory review of anti-circumvention exceptions every three years, but Bill C-32 only contains a review of the entire law every five years with no specific examination of anti-circumvention rules or mechanisms for new exceptions.”

Response: Bill C-32 contains two clauses that allow for the creation of new exceptions at any time: (1) regulations can be made any time with broad flexible criteria to exclude new classes of TPMs; and (2) regulations can be enacted to exclude classes of TPMs if they unduly restrict competition. Moreover, the US DMCA has no mechanism such as is available under Article 6(4) of the EU Copyright Directive to require rights holders to take appropriate measures to ensure beneficiaries of an exception can avail themselves of it. However, C-32 permits the enactment of further regulations at any time to require rights holders to provide access to a work to enable individuals to avail themselves of the enumerated exceptions to the TPM provisions.

Geist claim: “U.S. rules now contain an exception for unlocking and jailbreaking a cellphone. Bill C-32 only covers unlocking.”

Response: Under the recent Rulemaking by the Librarian of Congress, a new limited exception was recently established under the DMCA to cover jailbraking cell phones. The exception permits “Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.” Bill C-32 has a generally applicable exception for interoperability of computer programs that would enable circumvention of TPMs for jailbreaking applications that includes but is not limited to cell phones. Bill C-32 also contains a generally applicable exception to permit reverse engineering of computer programs that might be needed to develop applications that can work with jailbroken phones. US law does not have a comparable exception. Reverse engineering a computer program for interoperability purposes can be a fair use in the US in certain circumstances. It would also be a fair dealing for research purposes in Canada where permitted in the US.

Geist claim:  “U.S. rules contain an exception for e-books designed to facilitate access for the sight impaired. The Canadian rules do not contain a similar exception.”

Response: Under the recent Rulemaking, a new limited exception was recently established under the DMCA. It is restricted to “Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.” Bill C-32 contains a much broader generally applicable exception that applies to TPMs that protect all works and subject matter to enable the content to be made perceptible to the person with the perceptual disability. It is not limited to any specific formats or type of perceptual disability.

Geist claim: “… the new YouTube exception in the Canadian bill – trumpted as progressive – is still subject to digital locks, while the U.S. has specific exception for it”.

Response:  Neither the US nor any other country I am aware of has anything similar to the proposed UGC (YouTube) copyright exception that is in C-32. The new proposed UGC exception would expressly exempt copying and other uses of content (such as movies, music, books, computer programs, games, art, architectural and engineering drawings, databases, websites and corporate logos) to create new works (including derivative works) and permit them to be disseminated over networks including the Internet. Since the US has no exception that permits this, it goes without saying that there is no exception for circumventing TPMs to enable individuals to engage in these types of activities.

Geist claim: “U.S. rules contain an exception for everyone to circumvent DVD protection to gather a short clip to create non-commercial videos. Canadian rules include an exception for non-commercial videos, but do not exempt circumvention.”

Response: The US exception for circumventing a TPM to create a non-commercial video, which came into force only after C-32 was tabled in the recent Rulemaking, is much more limited than described by Prof. Geist. The exception for non-commercial videos applies only to (1) motion pictures on DVDs that are lawfully made and acquired, (2) that are protected by the Content Scrambling System (CSS), (3) when the circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works, (4) the purpose must be for criticism or comment, and (5)  the person engaging in the circumvention must believe and have reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use. As drafted, the Canadian UGC copyright exception applies even if an individual circumvents a TPM to create the UGC work. Bill C-32 does not prohibit individuals from circumventing copy control TPMs in order to create UGC works, only access control TPMs. So if an individual has purchased, licensed, or otherwise lawfully obtained access to original content, the individual can hack a TPM that would prevent copying in order to create a UGC work.

Geist claim: The “digital lock rules effectively trump virtually all other rights in the bill (particularly fair dealing and the new consumer exceptions) and extend far beyond what is required to comply with the WIPO Internet treaties.”

Response: The TPM provisions in the Bill, like those in the DMCA, do not prohibit circumventing copy control TPMs for fair dealing purposes. Prof. Geist’s analysis of what is required to comply with the WIPO Treaties has been utterly rebuffed by the former Assistant Director General of WIPO here, here and here.

Geist claim: “U.S. law contains a flexible fair use provision that covers everything from recording television shows to making backup copies. Bill C-32 contains a series of new fair dealing exceptions that are collectively still more restrictive than the U.S. fair use”.

Response: Bill C-32 would introduce three new fair dealing exceptions, parody, satire and education. The Bill would also create numerous new exceptions covering a myriad of activities engaged in by individuals, researchers, businesses and educational institutions including copying for format shifting purposes, time shifting, making back-ups, creating and disseminating UGC works, reverse engineering computer programs, encryption research, security testing, technical processes, and copying practically any content that is publically available over the Internet for educational purposes. These latter exceptions are not bounded or restricted in any ways that require them to be subject to any “fairness” analysis. However, all US activities that are exempted under fair use are, by definition, required to be fair. So, it is by no means accurate to assert that the Canadian Act with these new exceptions would collectively be more restrictive than US fair use.

Geist claim: “The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” This is far less restrictive than Bill C-32.”

Response: Prof. Geist refers to a single US case involving MGE UPS Systems and GE for this unqualified assertion. As I previously pointed out, MGE v GE-what did the 5th Circuit decide about the scope of the DMCA TPM provisions and was it right?, Prof. Geist’s conclusions about this case are neither accurate nor complete. The case does not support the categorical statement that in the US “The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners”.

Geist claim: “Canada is not breaking any international treaties” with respect to copyright.

Response:  Canada signed the WIPO Treaties in 1997 committing this country to implement them, but hasn’t done so. Canada is the only G7 country to have failed to modernize its copyright laws to address the copyright issues associated with the Internet. Canada also lags behind all other G7 countries and international standards in failing to upgrade its laws to target counterfeiting and piracy. This was highlighted in a report just released by the RCMP.

Geist claim: “Bill C-32 adopts the successful notice-and-notice approach that has been used in Canada on an informal basis for many years.”

Response: As I have previously pointed out, Prof. Geist’s assertion that notice and notice works is without foundation. We have had a de facto notice and notice system in Canada for many years and there is no evidence that it changes people’s behavior to stop illicit file sharing and purchase creative products from legitimate services. As I also pointed out elsewhere, research by our trading partners shows that while a simple notice may have a temporary effect in reducing online file sharing, only notices that have a threat of some sanction operate as an effective deterrent.

In his latest blog Prof. Geist argues that “Canada needs to reform its laws based facts”.  I agree with this assertion. It is high time the debate about copyright in Canada was based less on hype and misinformation and more on facts.

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