“Bill C-11 contains an “enabler” provision which currently states, “It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.” — Russell McOrmond Is Bill C-11 related to SOPA/PIPA?
If it’s an infringement to provide a service the person knows or should have known is designed primarily to enable acts of copyright infringement IF AN INFRINGEMENT OCCURS…
Wait: does that mean it isn’t an infringement if no one actually infringes?
Hum. It appears that Bill C-11 is straying pretty far afield for copyright law. And sounds pretty dependent on what other people do.
It is reasonable for me to be responsible for my own dog, because I have control of my own dog. If my dog bites the letter carrier, it is my responsibility.
But I would not be liable if someone else’s dog bit the letter carrier.
Or what about “the person knows or should have known” …. Well. We all make mistakes. Who can know what anyone else will do?
If rent out a building to a tenant who cooks up methamphetamine in the basement, or takes pot shots at passersby out the window… is this then my responsibility? After all, it’s my building. It’s in a bad neighborhood so I should have known renting it out might make it possible for badguys to do bad things.
Think about it.
“…the person knows or should have known is designed primarily to enable acts of copyright infringement…” If the design of the thing is to primarily enable bad things… why don’t we make laws like that for anything in the real world?
Many perfectly respectable stores like Canadian Tire sell guns. In a pinch, you could use your handgun to drive a nail, but that isn’t what it was designed for. A gun is a weapon that is clearly designed to put holes in things. Quite often, guns are used to put holes in people. And guns can and are used in a commission of a crime far more serious than copyright infringement.
Yet no one is suggesting gun manufacturers be held responsible for crimes committed with the guns they made.
In the real world, this kind of preventative lawmaking is not the practice in Canada.
Recreational drug use has been illegal in Ontario throughout my life, yet there are whole stores devoted to selling the attendant paraphernalia. It is perfectly legal for “head shops” to sell hookahs and bongs openly on the main shopping street of law abiding cities like Waterloo. And these devices are most certainly designed to enable acts of illegal drug use.
Any tool can be used for good or ill, as Cory Doctorow recently pointed out with his suggestion that wheels should be outlawed since wheeled vehicles allow criminals to flee from the scene of the crime. A hammer is a wonderful tool for driving nails, and yet a simple hammer can double as an effective weapon since it is easy for anyone to wield.
In the real world, we don’t arrest people for thinking dangerous thoughts or manufacturing goods or creating a service that someone else might use to break laws. We don’t hold innocent people responsible for the crimes of others.
The legal standards for citizen protection must be the same both online and off. Yet Bill C-11 lowers standards for citizen protection in Canada.
Although Canadians have mounted waves of opposition against each succeeding incarnation of a “Canadian DMCA,” both Liberal and Conservative Canadian Governments have attempted to pass copyright legislation that’s clearly against Canadian interests. Initially there was only supposition that the various drafts of a “Canadian DMCA” were produced in response to American pressure. After all, the USTR has been spreading misinformation about supposed Canadian piracy for years, in spite of the fact that the American DMCA has not stopped American digital piracy levels from being far higher than ours. Thanks to Wikileaks it is no longer an unsubstantiated guess: the Canadian government wants only to pass a Copyright Law that will make the American Government happy.
Four different Canadian Governments led by our two traditional ruling parties have tried to accomplish this, the previous efforts failed due to a combination of opposition and politics.
But this time it is different: our majority Conservative Government can pass anything it likes.
The only possible way to stop it is for public outcry. The problem is that most Canadians still don’t know this is happening or why it is important or what it will do. The mainstream media coverage has not helped raise awareness because their corporate masters have a vested interest; after all, the MPAA and RIAA (through its branch plant formerly known as CRIA) have a very long reach.
TPM, DRM, Digital Locks
DRM technologies attempt to give control to the seller of digital content or devices after it has been given to a consumer. For digital content this means preventing the consumer access, denying the user the ability to copy the content or converting it to other formats. For devices this means restricting the consumers on what hardware can be used with the device or what software can be run on it.
Whatever you call it, it will be terrible for Canadians. It won’t matter if a person has legally purchased a copy of an eBook, game, a movie or music, if Canadians need to circumvent TPMs in order to read, play watch or listen to our own legal copies, we will be breaking the law. If I want to watch a movie DVD on my Linux computer, I won’t be able to. Linux users will be forced to switch to Apple or Windows operating systems of they want to watch their DVDs. If I want to format shift any digital media I’ve purchased so that it will play on the device of my choosing, I won’t be able to without breaking the law.
Does this mean it will be illegal to have my printer’s ink cartridges refilled with off brand ink? Probably. I was foolish enough to buy a printer that has computer chips in its printer cartridges. The chip tells the printer not to work because a certain amount of ink has been used or the printer cartridge is too old. Bypassing that programming may well be considered circumvention of the manufacturer’s technical protection measures. After all, to be protected under the new Bill C-11 Copyright Law, TPMs won’t have to be tied to any actual copyright infringement or criminal wrongdoing.
This is not a good thing for consumers.
Once this law is passed, I imagine that it will be only a matter of time before every digital device and most software destined for the Canadian market will be tightly locked in DRM. Further, as a self publishing Canadian writer, my further concern is also that digital locks may well be used to limit distribution of my own work.
Why did Canada sign ACTA?
The speed with which digital innovation and the Internet have set the world on end is unprecedented; even Malcolm Gladwell, one of Canada’s brightest sons doesn’t get it. So I’m inclined to think that the largest problems is that most of our government doesn’t understand the issues.
It is unreasonable to expect elected officials to understand everything. They are only human, after all, and so they can’t. What they must do, is to find out about each issue as it arises, and the fastest way to do this is to consult with the experts. The problem that has arisen is that the experts governments the world over rely on when forging laws to govern this new technology are the mainstream media. And the mainstream media has a clear and present interest in both copyright and and controlling technological innovation.
It is very possible that C-11 is intended as a law to allow Canadian compliance with the dreadful ACTA Trade Agreement.
ACTA is one more offensive against the sharing of culture on the Internet. ACTA (Anti-Counterfeiting Trade Agreement) is an agreement secretly negotiated by a small “club” of like-minded countries (39 countries, including the 27 of the European Union, the United States, Japan, etc). Negotiated instead of being democratically debated, ACTA bypasses parliaments and international organizations to dictate a repressive logic dictated by the entertainment industries.
ACTA, a blueprint for laws such as SOPA and PIPA, would impose new criminal sanctions forcing Internet actors to monitor and censor online communications. It is thus a major threat to freedom of expression online and creates legal uncertainty for Internet companies. In the name of trademarks and patents, it would also hamper access to generic medicines in poor countries.”
Although Canadian negotiators were included in the secret ACTA treaty negotiations, sitting members of parliament and the public were deliberately kept in the dark as to what ACTA was about. Although ACTA is supposed to stand for “Anti-Counterfeiting Trade Agrement” the prime reason for its secrecy was the copyright law provisions.
Among those who are aware of ACTA, its agenda is believed to be that of the American movie and music industries. These Industries have been investing unprecedented amounts of time and money in attempts to coerce sovereign nations around the world to enact copyright laws beneficial to their special interests.
In spite of the fact that the final round of ACTA negotiations failed to achieve consensus in the secret negotiations, some time later Canada went ahead and signed the treaty anyway. The European Parliament signed ACTA a few days after the SOPA protest, but it must pass a plenary vote this summer before it will be official.
Copyright law has always been concerned with Intellectual Property, but Bill C-11 strays into the realm of physical property. A law that prevents citizens from making personal use of our own legally purchased media on the digital devices of our choices strays beyond the realm of intellectual into the realm of physical property. Making all circumvention illegal is equivalent to putting citizens in jail for breaking into our own home of we’ve inadvertently locked ourselves out.
You know, the one I’m talking about, the one that was ushering in gender equality?
As a teen I felt empowered by the classic Marlo Thomas television special “Free To Be, You and Me” My high school drama department class even mounted Free To Be You and Me as a show.
When I was a kid, my favorite team sport was soccer, and that turned out to be the sport my son wanted to participate in. He loved the game, and played for fun in the co-ed “house league” throughout his public school years. But when he was in high school, the league began segregating the younger teams according to gender. I asked why, and was told it was to make sure that girls got to play as much as the boys.
That’s a shame.
I don’t think such a policy is particularly good for either boys or girls. Some of the best soccer players my son played with were girls. As a parent watching all the games, I always saw at the beginning of each season, there were always some boys and some girls who seemed a little uncomfortable playing together. Boys wouldn’t pass to girls, for instance. And maybe some of the girls lacked the confidence to fight boy players for possession of the ball. But by the end of every season, every year, the boys and girls were working together. It was necessary if your team was going to have a shot at winning. And the one thing that the boys and girls had in common was the desire to win.
Segregating the teams by gender might make it easier for girls to play the game, but does them no favors for later. There are few career paths available to women that are devoid of men, outside of nunneries. From my perspective, the most important thing to come out of co-ed soccer was an opportunity for boys and girls to work together and discover they are all people.
Maybe if we had more of that in the places where we socialize our kids, we would have more women in politics.
When it comes to online social networks, particularly the ones seeking to bring about social justice, there certainly seem to be at least as many women fighting for change than men. Maybe more. When you look at any political party, how many of the rank and file, the volunteers, the workers, are women? So why aren’t women more involved in making policy and governance?
Capital “F” feminism
I used to consider myself a feminist, until I became disillusioned when the feminist movement seemed to be less about gender equality and more about a power reversal to seize the power that men traditionally held. So I stopped thinking of myself as a feminist, even though I think that everyone should have equal rights, regardless of gender, skin colour, sexual orientation, or planet of origin.
Every human should have equal rights, no matter what our differences. Period. Does that make me a humanist? Human, anyway. But today I’m considering gender. I realize now I was lucky to grow up in a large family where the girls and boys were treated pretty much equally, with a father who was very supportive of whatever any of us wanted to do or be.
Men and women are all people, we all make mistakes, and you can’t generalize about an entire gender. Sometimes men behave badly, but women aren’t any more perfect than men. Blaming everything that’s wrong in the world on one gender or the other doesn’t help. Blaming doesn’t generally fix anything. Clearly some of the women who have become political leaders have been terrible, just like some male political leaders. It’s even possible that women might screw up even worse that men when it comes to governing nations, maybe because of the way we have been socialized or simply because we lack experience. I don’t know.
As a woman, I’ve tended toward female medical professionals whenever a choice is possible. The wonderful Toronto Women’s College Hospital came into existence to ensure women received proper medical treatment; but the female obstetrician who worked out of WCH was more paternalistic than any male doctor I’ve ever seen. When I asked her questions – pregnancy was a new experience for me – she ordered me to stop reading and to just do as I was told. So in my third trimester I switched to a male obstetrician (and this is unheard of) to make sure I would deliver my child across the street at Mount Sinai.
Men and women are different.
Well, of course we are. People are different. We all have different strengths and weaknesses. We don’t always have the same goals, we often want different things. There are some things men seem to do better as there are some things women seem to do better. And it’s hard to know what gender differences are due to nature and which are due to nurture. But a lot of those things are from the the way we socialize our children.
Democratic government is all well and good, but in order to be truly representative, a democratic government really should come close to reflecting the populace. If you look at the Members of Parliament who are supposed to represent us at the federal level, that isn’t anywhere close to the case gender wise. Although the Canadian population is slightly more than 50 percent female, the House of Commons is barely managing 25% women. Well, 24.7 since the most recent Federal election.
What Canada actually has is a Conservative Party majority government. Yet only 17% of Conservative MPs are women. Lets look at the breakdown within each party:
In total, Canada currently has 76 (or 24.7%) women sitting in the House of Commons.
40 of them (or 13%) are from the NDP,
28 of them (or 9%) are from the Conservative Party,
6 of them (or 2%) are from the Liberal Party,
1 of them (or 0.3%) is from the Bloc Québécois, and
1 of them (or 0.3%) is from the Green Party.
So although the numbers are up for women in government, only 9% are in the majority party. And of the five national political parties represented in our government, only the Green Party has a woman leader.
Canada has only had one female Prime Minister, whose term ran for mere days as she was appointed and left holding the bag for Brian Mulroney’s misguided policies. Campbell would probably have done a better job than Mulroney had she got the position at the beginning rather than the end. (Admittedly, my cat could have done a better job than Brian Mulroney…)
Fairvote Canada‘s Anita Nickerson told me that Canada has “basically been at a “glass ceiling” of 20-22% women for the past 20 years.” What changed in the last Federal election was that the “Orange Crush” bumped up our gender numbers dramatically up from 22%. The NDP commitment to gender equality has led to policies that have resulted in more female candidates, and thus more women in our government. During the last provincial election I learned that the NDP will only run a male candidate if there are no women willing to take on the riding. Yet even with this policy, it is clear that the NDP has only managed 40%.
Personally, I wouldn’t vote for any candidate based on gender. You can have good or bad candidates. My goal in voting in any election is to vote for the person I believe will do the best job, so I would certainly never vote for a woman who did not inspire my confidence.
But still, it is a problem. If women aren’t represented in our democratic government, the laws made by that government are unlikely to be in our best interests. That is a problem.
On Thursday I’m attending the screening of a documentary hosted by the Fairvote Canada Waterloo Chapter:
What: Documentary (see the trailer at: http://www.youtube.com/watch?v=PoLWSzq2v74 ) When: Thursday January 26, 7 PM Where: Lyle S. Hallman School of Social Work Auditorium Room 301
(located behind Kitchener City Hall, across the street in the Laurier building)
Looking at the Senate for the Oh! Canada blog, I was struck by the much higher percentage of women serving on the Senate than in the House of Commons. Where we’re barely managing a quarter of our representatives in the House of Commons are women, the Senate boasts more like a third. This is a problem.
Perhaps the film will shed some light on the disproportionate lack of women representing us in Parliament.
I’ve been having a terrible time getting my debut novel to market. I’m way behind the schedule I set for myself. It’s a good book, and I’m very proud of it. So what’s the problem?
Well, there is a lot to self publishing. Just learning the technical stuff – crafting an ebook format that makes me happy is a bit more difficult than I expected. Especially when there are other calls on my attention. I think that I blogged more in November (NaNoWriMo) than any other time during the year because so many important political issues are coming to a head right now.
Then there are real life issues… like getting prepared for the festive season that is almost upon us. I haven’t even got my annual Christmas card ready, which results in a twinge every time I open a card I’ve received. I’m a dinosaur, I like mailing cards. It’s a nice way to stay in touch with family. The worst of it has been the politics. I’m not a politician, I’m a writer. A fiction writer. But a lot of stuff is happening that I just have to blog about. In the past, the world of politics has traditionally slowed down in the weeks leading up to Christmas.
In Canada: Our government seems in a rush to follow the American footsteps in becoming a police state with the prosecution of Byron Sonne and Julian Ichim
Canada is also fast tracking legislation that will assault Canadian civil rights with the Omnibus Crime Bill
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”
Yet the Canadian Government has stated its firm intention to pass both of these highly controversial and unpopular laws by Christmas.
Are they doing this because they hope those of us who believe passage of these laws will be a tragedy for Canada will stop being concerned because we will be too caught up with our Christmas preparations, you know, peace on earth and goodwill toward men?
My child will be coming home from university this Christmas, so I want it to be special. That’s important.
But what is even more important is that the world he inherits should be at least as free and respectful of his Charter rights as it was when he was born.
Peace on earth is a good goal – maybe it’s time to bring our soldiers home from an unjust foreign war.
Good will toward men is another. I raised my child to be a good citizen, to live with honour, to think for himself, to share what he has with friends, to help those less fortunate than himself, to safeguard the environment, and to respect the law. When he was small, our family mantra was “people are not for hurting.” Now that he is an adult, it still is.
So. For 2009, my house will be messier than usual, my cards will be late, and my book delayed, all because I don’t want to see our government legislate away our privacy, our ability to share our culture freely if we choose, or our liberty without very good reason. My grandparents escaped from Soviet Russia so they wouldn’t have to raise their family in the shadow of the Gulag. I don’t want to see my child, or any other Canadians, deprived of liberty by incarceration except as a last resort. An ounce of prevention is worth a pound of cure, and it’s a lot cheaper, too.
My Christmas wish for Canada is to see some real “Good will toward men” … and women … and children.
Further reading should include Stephen Bradley Scott’s important three part Lawful Access series. Although removed from the Omnibus Bill, our Government remains committed to this legislation.
The rest of the world calls it DRM (Digital Rights Management)
The Canadian government is partial to the term TPM (Technical Protection Measures).
Michael Geist has popularized and may even have coined the phrase digital locks to put a face on the concept, so that ordinary Canadian consumers without law degrees might better understand the copyright law — Bill C-11 — that will change the world on us.
No matter what you call them, these third party locks (what Russell McOrmond calls them) are bad enough for consumers all on their own. The most serious problem with Bill C-11 is that circumventing these things, no matter what you call them, will become illegal.
Even if circumventing them ~ breaking the lock ~ is to do something that is perfectly legal. Like watching the DVD you bought. Or listening to the music file you downloaded. Which is why Napster is shutting down Canadian operations — because of Bill C-11.
These downloads are DRM-encoded WMA files and can be backed up by burning them to audio CDs. Doing this will allow you access to your music on any CD player and generally have a maintenance free permanent copy. If you do not back up your purchased Napster music downloads by burning them to CD and you later change or reinstall your computer’s operating system, have a system failure or experience DRM corruption, then the downloads will stop playing and you will permanently lose access to them.
In Canada, it is not illegal to circumvent a padlock. If I put a padlock on my shed, and it rusts out, it is perfectly legal to take bolt cutters and cut the lock off.
Because the defective padlock is preventing my legal right to access my own stuff.
It is not legal for me to do the same to my neighbor’s padlock. If I were to lop off his padlock to gain access to the contents of his shed, there are hosts of criminal charges that can be brought against me.
Bill C-11 will make it illegal for Canadians to access our own stuff.
Creative work that is not “protected” by copyright is in the public domain. That means that anyone can copy it without fear of legal repercussion. Although terms for copyright are discussed at length in Canada’s Copyright Act” the public domain is not even mentioned.
Originally copyright applied only to the printed word, but it has been expanded to “protect” all of our modern culture; artwork, photographs, music, film, even performance. It used to be that copyright terms were relatively short; most creative work would find itself in the public domain during the lifetime of the creator.
Nowadays, of course, in most parts of the world, ever expanding copyright terms ensure that creative work will only enter the public domain decades after the death of the creator. Some of us are concerned that the reality may be that much of our art and culture will never go into the public domain. The very existence of the public domain is important.
He’s right, and it is indeed a much needed reminder, because all too often the public’s rights are overlooked when they are not spelled out in law. The public lacks lobbyists; in a democracy, the government is expected to safeguard the public good.
The Public Domain
The public domain belongs to the public. Any time copyright “protection” is expanded in some way, it is always at the expense of the rights of the public.
Which is why I get so annoyed when I stumble upon creative work in the public domain like this painting “The Empress Comes (or Poppaea Comes)” by George Lawrence Bulleid:
And find such a public domain reproduction marked with a notice like this one:
This image (or other media file) is in the public domain because its copyright has expired. However – you may not use this image for commercial purposes and you may not alter the image or remove the WikiGallery watermark.
This applies to the United States, Canada, the European Union and those countries with a copyright term of life of the author plus 70 years.
Once any creative work is in the public domain, it can be copied, and altered by anyone for commercial purposes or otherwise.
That is the point of the public domain.
Attempts to lock up public domain creative work in this manner is called Copyfraud.
Copyfraud is everywhere.
False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution.
Archives claim blanket copyright in everything in their collections.
Vendors of microfilmed versions of historical newspapers assert copyright ownership.
These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner’s permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.”
Copyfraud exists because laws criminalizing false statements about copyright are weak.
Or nonexistent, like Canada.
Currently the Canadian government is contemplating passage of legislation to “modernize” Canadian Copyright law.
Yet Bill C-11 does nothing to address the issue of Copyfraud, a practice which inflicts untold harm on Canadians and our culture. Copyfraud prevents Canadians from accessing public domain work we are legally entitled to access. Denying us this access stops us from engaging fully with our cultural history and prevents us from building on our own history and culture.
Archives Canada is a federally funded website that offers to serve as “your gateway to Canada’s collective memory!” It’s a wonderful government initiative to help bring our past alive.
This archive offers permission “for scholarly and personal research purposes only”, stating that we must first get written permission from the University of Saskatchewan Archives to reproduce, publish or publicly display all materials.
What of public domain material held by the archive?
Canadian heritage is important. Canadian copyright law should indeed have balance, and work to protect the rights of Canadian citizens. It is past time to establish penalties for copyfraud. Perhaps we should establish statutory damages to redress the infringement of the rights of Canadians.
[redacted: see note below]
All Canadians have legal rights to all work in the public domain. Setting those rights down into law would be an excellent way to modernize our Canadian copyright law.
If Canada is modernizing copyright law, it should explicitly make copyfraud illegal.
“The Empress Comes (or Poppaea Comes)” by George Lawrence Bulleid (Public Domain)
Those of you who might have read this article earlier may notice I had originally included a reproduction of a Canadian artwork held by the Saskatchewan archives that I erroneously believed to have been in the public domain. Math has always been a personal nemesis, and I lost a decade in my calculations. Therefore I have withdrawn the image as the work referenced was not actually in the public domain.
However, more than once I have come across public domain works in Canadian archives, presented as though the archive controls the copyright of the work, when it does not exist because the copyright term has ended.