Bill C-32: Flawed But Fixable

Canada's new copyright legislation contains many things worth fighting for, but the inclusion of digital lock provisions undermines the rest.

Last week, the government introduced the Copyright Modernization Act (or Bill C-32), the long-awaited copyright reform bill. It has been nearly two years since C-61, the government’s previous attempt at copyright reform, was introduced, and nearly a year since the national copyright consultation. Yet, discouragingly, some things have not changed.

As I reported several weeks ago, Canadian Heritage Minister James Moore won the internal fight over Industry Minister Tony Clement for a repeat of C-61's digital lock provisions and against a flexible fair dealing approach. C-32 reflects those policy victories.

However, over the past month, Clement made steady inroads in trying to restore some balance and achieved some wins. The bill contains some important extensions of fair dealing, including new exceptions for parody, satire, and (most notably) education. It also contains more sensible time shifting and format shifting provisions that still feature restrictions (they do not apply where there is a digital lock) but are more technology neutral than the C-61 model. There is also a "YouTube exception," which grants Canadians the right to create remixed user-generated content for non-commercial purposes under certain circumstances.

While still not as good as a flexible fair dealing provision, the compromise is a pretty good one. Throw in the notice-and-notice system, which means that internet providers must pass along notifications of copyright infringement to subscribers but take no other action, backup copying, and some important changes to the statutory damages regime for non-commercial infringement that sets a maximum of $5,000 for fines, not insignificant but it is well below the current $20,000 maximum, and there are some provisions worth fighting to keep.

Yet all the attempts at balance come with a giant caveat that has huge implications for millions of Canadians. The foundational principle of the new bill remains that anytime a digital lock is used – whether on books, movies, music, or electronic devices – the lock trumps virtually all other rights. In other words, in the battle between two sets of property rights – those of the intellectual property rights holder and those of the consumer who has purchased the tangible or intangible property – the IP rights holder always wins.

This is market intervention on behalf of a particular business model by a government supposedly committed to the free market. It means that the existing fair dealing rights (including research, private study, news reporting, criticism, and review) and the proposed new rights (parody, satire, education, time shifting, format shifting, backup copies) all cease to function effectively so long as the rights holder places a digital lock on their content or device. Moreover, the digital lock approach is not limited to fair dealing – library provisions again include a requirement for digital copies to self-destruct within five days and distance learning teaching provisions require the destruction of materials 30 days after the course concludes.

The digital lock provisions are by far the biggest flaw in the bill, rules that some will argue render it beyond repair. I disagree. The flaw must be fixed, but there is much to support within the proposal. There will undoubtedly be attacks on the fair dealing reforms and pressure to repeal them, along with the U.S. and the copyright lobby demanding that their digital lock provisions be left untouched. If Canadians stay quiet, both are distinct possibilities. If they speak out, perhaps the bill can be fixed.