C-11 ~ It isn’t just a danger to Fair Dealing

Nora Young interviewed CIPPIC’s David Fewer on her CBC Spark program, and one of the points that they discuss is the worry that TPMs (digital locks/DRM) will stop Canadians from doing “what we what we would ordinarily be allowed to do under fair dealing.”

But it is more than that.

Fair dealing is only part of it. Under Bill C-11 TPMs will stop us from doing things we are legally allowed to do, including things that have nothing to do with fair dealing.

If it is illegal to circumvent TPMs, Canadians will be prevented from accessing content that is in the public domain, or work that has been licensed to share. This is already happening now.

As a writer, I’ve been appalled that books in the public domain have been locked behind TPMs. Bill C-11 will make it illegal to circumvent this kind of TPM.  Even using a pen and paper to hand copy the words of a public domain work like The Happy Prince if TPMs are present, will be copyright infringement – and illegal – when Bill C-11 becomes law.

Bill C-11 will make it possible for Microsoft to prevent people from replacing the Windows Operating System that comes preloaded on most computers with free software of our choice ~ like Linux. So Bill C-11 could very easily be used to kill free software in Canada.

Even worse, if it illegal to circumvent TPMs, it will be possible to prevent Canadians from accessing content that is our own.

When my sister first got Windows 7, the software wouldn’t allow her to transfer photos of her own kids, from her own digital camera, to her own computer. That’s a real life example of how TPMs can go terribly wrong. Because the assumption behind TPMs is that we are all infringing copyright, so the default is always maximum. Had Bill C-11 been the law at that time, my sister would have had to break the law to circumvent the TPMs (that wrongly accused her of copyright infringement) to transfer her own photographs — which she unquestioningly owned the copyright for — from her own digital camera to her own computer — both devices being her own physical property.

Just now I’m reading Lawrence Lessig’s “Free Culture,” where he writes about the MPAA argument that Intellectual Property should enjoy the same level of protection that physical property does.

“Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest

— Jack Valenti, MPAA president quoted in Lawrence Lessig’s “Free Culture”

But Bill C-11 goes far beyond equality, and clearly tips the balance so our physical property rights are overwhelmingly quashed in favour of the rights of Intellectual Property owners.

So it isn’t a very big jump to see that Bill C-11 will have the capacity to suppress independent creators from releasing our own work, because we won’t have the keys to the digital locks.

Enabling technology to enforce the control of copyright means that the control of copyright is no longer defined by balanced policy.

— Lawrence Lessig, “Free Culture


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