Thursday, December 13, 2007


It started. It stopped. It almost happened. Twice in one week. The tabling that was supposed to take place on December 11, 2007 didn’t happen. It was supposed to happen again today, Thursday, December 13, 2007. It didn’t happen.

This is a bit ambiguous. It would have been better in some respects to see the bill in all its detail - and let the public have 6 - 8 weeks to analyse and debate it before the House resumes. Now, it’s back to the backrooms, where anything can happen. Hopefully for the better, possibly for the worse.

The better scenario is that the Bill will get much better in the interim, and deal with the right issues so that it can be improved even more in Committee. And/or that it be tabled as a “draft” bill, like I suggested yesterday. This might be something like the “exposure draft” mechanism that they have in Australia, as I understand it.

Let’s hope that the Ministers and the PMO get this right and do the right thing, whether for sound policy reasons for simply for purely political reasons. They would then garner a huge amount of respect from the thousands of wired and articulate people who are watching this drama unfold and who are not going to fade away and forget very easily.

Here is my suggestion.

The Government should rework the bill that it obviously had profound second thoughts about and come up with one that ensures that:

1. ISPs should face no liability for users’ activities if they to respond promptly to “notice and notice” demands. “Notice and takedown” is not appropriate in Canada.

2. DRM and TPM protection measures must be minimal at most and not circumvent user’s rights to do anything otherwise legal under the Copyright Act or interfere with users’ first sale and exhaustion rights and must be directed at specific behaviour and not multipurpose technology.

3. Users’ rights must be extended to include such fair dealing rights as parody, time shifting and format shifting. They should be inclusive and not exhaustive, i.e. with inclusion of inclusive language such as “such as”....Broadcasters should get their ephemeral rights. There’s no need and no basis for a special educational exception for the internet.

4. The private copying levy scheme should be repealed

5. Any “Making available” right must require proof of actual and prejudicial distribution.

6. Statutory minimum damages should be eliminated against:
a. Any person (individual or corporate) and any third parties serving them when there is a bona fide belief that the activity is fair dealing
b. Any person (individual or corporate) doing anything without any expectation of direct financial gain.

This government could earn immense respect from countless real Canadians and people who watch Canada around the world if it shows real leadership here.



  1. Some other thoughts I have are:

    * If DRM is used to prevent copying, then there should not be restrictions on the return policy. There are many software products that can't be copied due to DRM, yet if you open them they can't be returned, even half an hour later.

    * If DRM is used, it shouldn't trivial in nature. If it's easy to bypass, it becomes nothing but bait for lawsuits.

    * If there is to be protection on the content, then all media forms must also be DRM'ed. It makes no sense to DRM downloads from iTunes, when the same files are unencrypted on CD. It becomes a crime to convert the file from a DRM format, even if it is released for public sale in unencrypted form as well?

    * P2P should remain legal, with or without the levy. There are many legal uses for P2P, not the least of which is to download Linux (plus patches, new versions, extensions and additional "free" software).

    * DRM content files should be provided to the government in unprotected form, in case the DRM fails and prevents people from accessing their purchased items. Google tried to shut down its music store, and walk away from DRM support. Sony uses 3 levels of DRM on Bluray movies, and you need to update drivers to keep playing the movies. Not all companies update as quickly as the disks, or will always support "that model". DRM shouldn't require constant repurchase of content.

    * Copyright content must be made available to libraries, and be available in the public domain once their copyrights expire. If the DRM prevents either of these scenarios, then perhaps copyright law shouldn't really apply because they are inherently uncopiable, and will never be in the public domain?

    * "Corporate copyrights" and length of term. When and how do these expire?

    * Some system be considered that makes it clear when a file can be legitimately downloaded. Currently, big media corporations use legal takedowns, but what if some item (such as a Linux distribution) are clearly permitted to be copied?

    * Some musicians use mp3 files to promote their music, rather than just sell it. How are people expected to know the difference between "free" mp3's (that still retain their copyright status), and mp3 files that result in $20,000 damages for downloading? Or, is the government officially eliminating "free" things? And doesn't that essentially outlaw the public domain?

    Anyway, thanks so much for all your posts, I do read them even if I don't always respond.

  2. Thanks for this Howard. I get very hung up on the rhetoric and anger this debate inspires. I have to say, and have said (see link), I find this posting refreshing.

    be of good cheer: