Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

What’s wrong with Bill C-11

with 10 comments

Bill C-11, the so-called “Copyright Modernization Act” will not actually modernize Canadian copyright law.

Instead, if this law is passed as it stands, it will harm my interests as a creator, as well as Canadian culture and heritage.

Canadian DMCA logo

I’m working hard to master eBook conversion of my debut novel, so I have been valiantly trying to avoid looking at what’s happening with Bill C-11 (an exact revival of Bill C-32, which was itself the Successor to Bill C-60, or Bill C-61). No matter what number, nor which political party is driving it, in every version this law has been a Canadian DMCA.

I became interested during the Canadian copyright consultation when an unprecedented number of Canadians responded to the Government’s call for input into the new draft copyright law. To be fair, this new incarnation actually does do some of the things that Canadians asked for. The problem is that it won’t matter because chances are good we will never be able to make use of these benefits because they will be blocked by what are sometimes called “digital locks”. Or Digital Rights Management (DRM), or Technical Protection Measures (TPM).

It doesn’t matter what you call it.

I thought you might be interested in the best summation of the worst problem with Bill C-11 [the emphasis is my own]:

 

the keys to the locks are held by someone other than the owner that is what is locked.

It is not the owner of the copyright that has the keys (to the lock on the content or the lock on devices),

and it is not the owner of the device that has the lock on the device.

It is the device manufacturer and/or software distributor that controls the keys.

In any type of lock, digital or otherwise, it is the interests of the entity with the keys whose interests are protected.

— Russell McOrmond, Digital Copyright Canada: Bill C-11 debate day 1

This is what will make it far worse for Canadians and our culture than what American’s have had to cope with in the original DMCA.

It will be illegal to break the digital lock, even if you have the right to access the content. Bill C-11 will make digital locks the single most powerful element in Canadian copyright law. Copyright will be subjugated to software and device manufacturers. It won’t be publishing companies that decide what books Canadians can access, nor the writers or even the readers of those books.

The company that distributes the software or manufactures the device will hold the keys to copyright law.

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10 Responses

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  1. [...] What’s wrong with Bill C-11 [...]

  2. [...] A surge of public opinion regarding incursions against the Canadian right to privacy resulted in the removal of Lawful Access portion of Bill C-10, the Omnibus Crime Bill. However, the government is forging ahead and plans to push the pared down Omnibus Crime Bill through in spite of very real concerns raised on a variety of fronts. Serious issues raised by all stakeholders (the only exception being the corporate special interest group behind the draft legislation) have been similarly dismissed by the Government in respect of Bill C-11 “The Copyright Modernization Act” [...]

  3. The recipient of a DRMed work possesses the keys (in their storage or playback devices – and so own them if they own those devices). The DMCA makes it illegal for the recipient to attempt to locate and/or utilise the keys they possess except in ways permitted by the copyright holder or authorised licensee/equipment manufacturer.

    DRM doesn’t work. The DMCA says “Please pretend DRM works, but if you stop believing and look behind the curtain then we’ll punish you severely”.

    Crosbie Fitch (@Crosbie)

    October 20, 2011 at 6:55 am

    • Yes, Crosbie. But organizations like the EFF and Public Knowledge and KEI have been chipping away at the DMCA over the last decade. Even the DMCA didn’t set DRM above legal exceptions to the copyright monopoly like Fair Use.

      But Bill C-11 goes much further. This “Canadian DMCA” is the law that the USTR has been pressuring successive Canadian governments to pass in spite of resistance from virtually all Canadians. The copyright collectives are as opposed to it as I am.

      Under Bill C-11 DRM doesn’t have to actually work, it just has to be present. Circumventing it is a crime. Apparently there will be a process disabled people can go through to allow circumvention so they can access their own digital media in a limited fashion. (Even so, the accessibility lobby is opposed as well. )

      Even if you are circumventing the digital locks to read a book in the public domain it will be a crime. As possessing tools to circumvent will also be a crime. [I'm not sure how they'll manage that, as I assume this would be the same tools programmers and web developers use.]

      It matters not that I own the eBook reader, if the reader has DRM preventing self published books from being read on it – including a book I have myself written – I will be prevented by the “Copyright Modernization Act” from circumventing the digital locks law to read books I have myself written.

      Laurel L. Russwurm

      October 20, 2011 at 1:42 pm

    • Yup, that sounds like the DMCA with all the weak bits remedied or thrown out. Even so, my previous comment stands (for C-11 as much as the DMCA).

      NB Neither DRM nor the DMCA (or C-11) ‘prevents’ anyone from doing anything, they simply make it awkward/irritating and illegal respectively.

      I wonder if the C-11 still has the same flaw that I spotted in the DMCA Schrödinger’s Copyright.

      Crosbie Fitch (@Crosbie)

      October 20, 2011 at 2:06 pm

      • Like most people, I was not paying attention when the original DMCA came into effect, so I wasn’t aware that this is what the American government tried to saddle their citizens with. The US never succeeded at passing a law this onerous at home, but they may well succeed at having it passed in Canada. I expect that the lobbying pressure our government is facing is at least as bad as what UK politicians faced prior to the passage of the Digital Economy Act.

        I grant you that the laws don’t physically prevent people from taking action. However, the state is more powerful than any individual, and has no compunction about depriving mere citizens of their physical liberty when we break laws, no matter how specious. As a parent, the thing that makes me hate these ridiculous copyright laws is the price they have already begun to extract from our children.

        No copyright law can have any benefit that could possibly be worth the loss of even a few days liberty [as that young Chicago woman who was arrested and held in custody for a few days suffer for the "crime" of recording a family birthday video]. The very idea that copyright infringement, even on a commercial scale, could warrant a punishment equivalent to a death sentence [the effect on that young Montreal man whose suicide was linked with copyright infringement] simply boggles the mind.

        Schrödinger’s Copyright eh? I’ll have to take a look to see :)

        Laurel L. Russwurm

        October 20, 2011 at 2:37 pm

    • The DMCA, EUCD, and C-11 also provide future opportunities for civil disobedience.

      The C-11 applying even to works not protected by copyright, and even against the author/copyright holder/licensee, is an achilles heel (and why the DMCA avoided that error to some degree).

      I look forward to authors circumventing the DRM on their own eBooks by way of protesting against C-11 (and copyright), and perhaps Shakespeare lovers circumventing the DRM on eBooks of his works.

      These laws keep on getting more and more ridiculous because the legislators find that they cause such little popular resentment or rejection – the majority of ‘consumers’ are apparently couch potatoes indoctrinated to accept these illiberal laws they are told prevent poor authors from starving – and so yes, youngsters should be imprisoned for infringing copyright (disobeying our immortal corporate overlords).

      Crosbie Fitch (@Crosbie)

      October 21, 2011 at 3:23 am

      • Unfortunately you are too right, Crosbie. It is simply amazing how many opportunities for civil disobedience are being made available to citizens these days.

        Even without Wikileaks corroboration it has long been clear that all attempts at creating a Canadian DMCA originate outside Canada, so it isn’t surprising the lawmakers if our sovereign nation don’t understand the ramifications of the law they are rushing to pass.

        Another fairly serious one is that most people have no idea of what DRM, TPM or digital locks even are, or that they are or are not present on our media and devices. There is simply no legal provision to make consumers aware if there is DRM, TPM or digital locks on our the media and devices we think we own. If consumers don’t know what DRM, TPM or digital locks or, or if they are present, how can we know if we are circumventing it?

        Schrödinger’s Copyright is most probably applicable to Bill C-11, but I’m not without looking at it. Let me float it by a couple of folks who are far more versed in this draft legislation than I am.

        Laurel L. Russwurm

        October 21, 2011 at 12:11 pm

  4. Here are some of my thoughts on Bill C-11. Let me know if my thoughts are correct. This is the scenario that I see happening.

    Ever copy a dvd to your ipod or your computer? I make copies so my son doesn’t break the originals. With bill C-11 I will be a criminal. Sure right now movie companies are playing nice and give us “digital copy” etc. Nothing in this legislation says that this will continue. Even making a copy of a dvd that does not have digital copy will be illegal. Next thing you know we will be paying for content for blu-ray, smart phone, iPod, iPad, or some future device. This has nothing to do with piracy. Existing Canadian laws take care of this. This combined with criminal spying laws will lead to copyright holders going after people who are suspected of infringement without proof. Copyright settlements will be the new way media conglomerations will make money. Write to your MP now and let him know you are not interested in a Canada that locks us out of the media we purchase and does not promote fair use.

    Thanks,

    Doug

    Douglas Dennie

    October 20, 2011 at 3:34 am

    • Personal uses were never considered infringement until recently. I am not a lawyer, but from what I’ve read, everything you’ve said here is correct. Although Bill C-11 makes provision to allow for certain personal uses, and widens Canadian “fair dealing” exemptions to more closely align with the more liberal American “fair use,” the addition of DRM to either the media or the software will immediately counteract these and render all the apparent gains useless.

      As well, much is being made of the provision that this law is to be revisited every 5 years. The American DMCA has an ironclad guarantee that it will answer all challenges every three years. This is why the DMCA has become much kinder and gentler over time. Again, I’m not a lawyer, but it appears to me that the Canadian provision to revisit C-11 is more of a suggestion than a mandate. As well, five years is an incredibly long time in the life cycle of digital technology. Five years could easily accommodate the effective demise of the Independent Canadian media.

      The absolute craziest thing is that the movie and music companies have not even grasped Russell McOrmond’s point: they will not hold the keys to the digital locks. This law could very easily cut them out of the loop.

      Because Bill C-11 makes the device manufacturers and software distributors the new gatekeepers.

      Laurel L. Russwurm

      October 20, 2011 at 2:06 pm


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