Reining in the rhetoric on copyright reform

This blog post is a longer version of the article entitled This Bill is no SOPA published in the Financial Post  today.

While recent attempts by the usual suspects making hysterical predictions about copyright reform in Canada have been ratcheted up yet again, this time the claims are so outrageous that they can perhaps best be described as having “jumped the shark”. Canadians are being told that Bill C-11, an act to amend Canada’s outdated copyright law, could be used to shut down popular web sites like YouTube, fundamentally change the Internet, sabotage online freedoms, and hog-tie innovators.

Canadians are being urged to protest the impending Bill C-11 “Internet lockdown” by activist organizations making wild claims about the bill that have no basis in reality like OpenMediaandAvaaz illicit businesses who sell hacking devices for pirated video games, and the online BitTorrent site isoHunt, all urging online protests and all relying on the hyperbolic musings of what might or possibly or could one day happen from Michael Geist. To fully ratchet up the frenzy, these groups are claiming attempts are being made to bring SOPA to Canada.

These warnings are an attempt to exploit the controversy and unpopular anti-copyright sentiments about the much misunderstood U.S. legislation in Congress called the StopOnline Piracy Act (SOPA), to derail parts of Bill C-11 and proposals to amend it. It doesn’t seem to matter that SOPA and Bill C-11 are entirely different pieces of legislation, with different goals, and legislative text. Canadians should examine the facts and see the hysteria for what it is.[1]

Bill C-11 contains many provisions that would greatly expand the freedoms of Canadians to copy creative products like music, movies, TV programming, books, software and games for private purposes. The bill proposes new exceptions for format shifting onto personal computers, tablets like the iPad and PlayBook, and even to private clouds. It would also permit copying for time shifting purposes. Individuals would be able to make and disseminate user-generated content – mash-ups – without fear of accusations copyright infringement.

Bill C-11 also proposes new exceptions to promote innovation that will permit reverse engineering of computer programs, copying for encryption research and security testing.  Making temporary copies of works to view them online or to disseminate them would not create liability.  ISPs, hosting providers, search engines and other service providers would have new and wider exceptions to protect them from infringement charges when they act as neutral intermediaries. Broadcasters would be able to make temporary copies of music without paying rights holders. The Bill also proposes new exceptions to support learning and education.

With these new exceptions, Canada’s copyright law would become one of the most user friendly, if not by far the most user friendly, in the world. An Internet lockdown? Hardly.

Bill C-11 also proposes amendments to enable Canada to ratify the two 1996 WIPO Internet treaties and clarify Canadian secondary liability laws so that entities that use the Internet in ways that primarily enable copyright infringement –  the “wealth destroyers” – can be shut down.

To satisfy the requirements of the treaties, Bill C-11 would provide protection against hacking and trafficking in technological protection measures (sometimes referred to as digital locks or TPMs) created to safeguard intellectual property products. These proposed amendments would adopt internationally accepted measures to protect and promote innovation in digital products and services such as video game software and online music and movie streaming services.  The bill contains numerous exceptions which permit circumvention of TPMs such as to facilitate interoperability, encryption research, personal information and network security testing. The bill also has more flexible processes to expand the exceptions in case of need than the processes of our trading partners in the US, the European Union, and elsewhere.

Some opponents of legal protection for technological measures have called for amendments to these provisions to limit violations to intended infringement of copyright. These proposals would eviscerate the usefulness of the law in promoting innovation in digital products and have been authoritatively rejected by the former Deputy General of WIPO as not meeting the standards of protection required by the treaties.

The SOPA rhetoric has led opponents of legal protection for TPMs to mount further opposition to Bill C-11 by trying to link the anti-copyright sentiments about SOPA to the TPM provisions in Bill C-11, arguing, for example, that they are the “Canadian version of SOPA”. They do this even though there is no connection whatsoever between them. Some opponents, including a trade organization called the Canadian Coalition for Electronic Rights’ (CCER) that represents commercial sellers of “mod chips” that let users hack video game decks – the very businesses targeted by the TPM provisions in Bill C-11 – have encouraged the public to protest this SOPA-like law by using their letter writing wizard.

Bill C-11 also proposes an amendment intended to make it an infringement of copyright for a person using the Internet to knowingly enable copyright infringement. The poster children for this legislation are BitTorrent sites like IsoHunt that have been found to facilitate the distribution of files 95% to 99% of which are infringing and peer to peer file sharing networks like LimeWire which was found to enable the distribution of files 98.8% of which were copyright protected or highly likely copyright protected.

Other targets of the enablement provision are sites like MegaUpload, a cyber locker site whose principals were just indicted for criminal copyright infringement. That site had an average of 50 million daily visits and accounted for a remarkable 4% of total Internet traffic. The FBI estimates that the founder, Mr. Kim Dotcom personally made $115,000 a day from his network of sites.

This provision is currently worded to apply only to sites that are “designed primarily to enable acts of copyright infringement”. Michael Geist claims that clarifying the wording to expressly cover services that are “primarily operated to enable infringement or induce infringement” could be used to shut down sites like YouTube and would stifle innovation. These claims are ridiculous, though not surprising given his historical antipathy to laws designed to protect the creative industries from theft.

To be clear, SOPA was intended to target foreign rogue websites that would already be illegal under US copyright law if those sites were operated from the US.[2] The US already has robust contributory infingement laws that can be and have been used against sites that primarily enable or induce copyright infringement. Other countries around the world have similar laws that have been successfully used against pirate sites.

Bill C-11 is not about foreign pirate sites. It is Canada’s attempt to establish rules about what is and isn’t legal in Canada. This is long overdue. The fact that Canada has not updated its copyright laws to deal with the Internet environment has led to our reputation as a haven for internet piracy operations both with our trading partners and pirate operators including MegaUpload’s Kim Dotcom.

The current wave of opposition to the amendments appears to be an opportunist effort to turn the tide on effective copyright reform by leveraging anti-SOPA public opinion. The amendments that are being objected to were first tabled before the Parliamentary Committee examining Bill C-32 in March 2011 and were publically disseminated including by Michael Geist – well before the SOPA uproar. Until the recent SOPA ruckus, even he did not publicly oppose the new enablement right or the proposed amendments as going too far. Rather, he argued the enablement right was not needed because it was “old wine in new bottles”, even telling a Parliamentary Committee examining Bill C-32, “I don’t have a problem with it.”

The new argument that amendments would cover sites like YouTube is spurious. Bill C-11 provides a series of criteria that a court would need to consider in determining if a site primarily enables infringement. The targeted sites are those: marketed or promoted to enable acts of infringement; that know they are being used to enable a significant number of acts of infringement; that have no significant uses other than to enable acts of infringement; that refuse to take actions available to them to limit the acts of infringement; that benefit from enabling the acts of infringement; and that would be economically unviable were it not for enabling acts of infringement. YouTube would clearly not be an enabler under these criteria.

The argument that these amendments could “stifle new innovation” leaves only one real possibility about the kind of sites the opponents must be concerned with protecting. It is not YouTube. The types of “new innovation” that would be affected are sites like IsoHunt and MegaUpload, the very wealth destroying “innovators” that the bill targets.

Bill C-11 is an important framework law that is intended to bring Canada’s copyright laws into the 21^st century. It has the potential to benefit consumers, other IP users, intermediaries, authors and owners of copyright. The government has recognized that technical amendments are required for the bill to meet its policy objectives. A healthy debate based on facts can be expected as Parliament’s Special Legislative Committee continues to consider it and thoughtful debate is always helpful to ensuring a proposed law meets its objectives. But lets not be fooled by chicken little claims. Canadians will all be hurt if the debate continues to be marred by political opportunism and misinformation spread for political purposes.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

[1] For some background on SOPA and the debates about it in the US, see, Lobbyists 1, Internet 0: An Alternative Take on SOPA ; Who Really Stopped SOPA, and Why?; The False Ideals of the Web; No oil meets no copyright; What Wikipedia Won’t Tell You; The Truth Behind Google’s Copyright-Bills Hysteria; Anti-piracy battle reveals dysfunctional thinking; Behind he music: What if the culture industry shut down for a day? ; If you critique SOPA, read the text. If you read the text, read it right; SOPA: A Bad Solution to a Very Real Problem; Protecting Americans from Web scams ; Fighting Online Piracy; Put Down the Pitchforks on SOPA; ITIF Comments on PIPA/SOPA Developments; My DNS Filtering Research before House SOPA Panel; DNS Filtering is Essential to the Internet

[2] For an overview of SOPA’s provisions, see, Terry Hart, Hey, what happened to Wikipedia? (An intro to SOPA) and Terry Hart New remedies for existing liability