Thursday, October 06, 2011

Bill C-11: Locks, Limits, Levies, Litigation & Now RIP “Rip, Mix & Burn”

I’ve been thinking a lot about Bill C-11. And now about the death of Steve Jobs. 

If laws about digital locks like Bill C-11 had been in place in 1980, we would have never seen the astonishing evolution of the “Rip, Mix and Burn” zeitgeist that Steve Jobs created. Not only has Apple gone from the brink of bankruptcy two decades ago to become the world’s very most valuable company at various recent times on the stock exchanges. It's also incontrovertible that Steve Jobs changed the world in the process - and much for the better.

“Rip, Mix & Burn” became an iconic mantra. Laws like Bill C-11 would have made much of what “rip, mix and burn” was all about illegal. Here's the transcript of a brilliant and prescient 2004 lecture by Princeton' celebrated Prof. Ed Felten about "Rip, Mix and Burn", and efforts to stifle the notion through copyright law. He makes a number of references to Apple. And when he talks about the promise of a future with a "universal media machine", just substitute the term "iPad". Prof. Felten asks in 2004 whether society should embrace the change that could come from the "universal media machine", and the spirit of the "Magna Carta" Betamax US Supreme Court decision of 1984, or whether we resist it.

So will Bill C-11 be Canada’s RIP to “Rip, mix and burn”?
So, here are some of my thoughts about Bill C-11, which would accomplish many good things but still has a few serious problems:

1.    The Digital Locks (TPM) measures continue to divide Canadians and to defy consensus. There are stronger than required by the WIPO treaties and stronger than necessary or desirable to serve any essential purpose. There are arguments made by credible people, such as Prof. Jeremy DeBeer, who is a respected academic and who is not a lobbyist,  that these provisions may even be unconstitutional.

2.    The Bill will not encourage innovation because it actually inhibits it overall. How does making it illegal to bypass a regional code to watch a perfectly legitimate imported Bollywood DVD that is not be available in Canada going to encourage innovation? (Note that market segmentation and price discrimination are not the same thing as innovation). Or making a backup copy of an expensive BlueRay disc or video game in case the family dog,  or a frolicking four year old, or a clumsy adult should accidentally destroy it? How does “book burning” in educational institutions encourage innovation?   

3.    How does making devices and content so difficult and finicky to use because of digital locks encourage innovation? Why tether content that has been paid for to specific devices or even types of devices? How many times must consumers pay once again for the same content every time their media or devices become lost, broken, or obsolete?

4.    How can Bill C-11 be said to be viable for now and for the future when it still hasn’t caught up to the American law from almost three decades ago, for example the landmark 1984 Supreme Court Betamax decision? The USA has long had less restrictions on time shifting than Canada’s proposed legislation would allow. And remote network personal video recorder technology, aka NPVR, held by the courts to be legal in the USA, would very likely be found to be illegal under Bill C-11, or require more Copyright Board hearings and court cases, and tariffs that would be so prohibitively expensive that Canadians would be denied, yet again, the benefit of another breakthrough in technology, or "taxed" for its use.

5.    It is arguable that if something like Bill C-11 been in place in 1980, we may never have seen the VCR or anything resembling modern PCs, iPods, tablets, etc. 

6.    And if Bill C-11 had been in place in 1980 and Apple had been a Canadian company, one would have never even heard about “Rip, Mix and Burn”.   

7.    Why will Canada continue to have multiple layers of rights for the same transaction that result in multiple payments and an incredibly confusing labyrinth of layers of tariffs and endless and ultra-expensive Copyright Board hearings that may have been instrumental in frightening away some very attractive services from Canada that are enjoyed in the USA and elsewhere?  The Copyright Board takes the view that every right in the Copyright Act can give rise to a new tariff - and that each tariff must be valued separately. The US Courts go to great lengths whenever possible to avoid this result, as we have just seen in the ASCAP case, where the Courts distinguish between performance”, which can be licensed by ASCAP, and “communication”, which cannot.  The Canadian Supreme Court will consider a very similar issue on December 6, 2011.

8.    Meanwhile, the Canadian Copyright Board has taken the position that each “right” gets a separate tariff.  Needless to say, the beneficiaries of this additional layer of rights and arguably redundant tariff will mostly be American interests.

9.    What would be the effect, if any, of the inclusion of the word “education” in the s. 29 fair dealing provision of the Copyright Act

10.    Will the inclusion of a special education exception for using publicly available material in educational institutions be necessary or even helpful? Do we need additional laws to confirm that educators and students can do what the law already allows them to do? And would such a law not suggest that it would NOT be OK for others (i.e. ordinary users working at home or in their office or students and teacher off campus) to do so? And, if that is the case, would such a law not play straight into the hands of Access Copyright and other collectives eager to license as much internet activity as possible?

11.    Why is Canada copying some of the least desirable features of US law and ignoring some of its better features, such as an explicit exception confirming users’ rights to fair use for teaching (including multiple copies for classroom use) and scholarship? The Americans also have an explicit exception confirming that record stores and electronics retailers need not pay stiff tariffs for playing CDs that they are trying to sell and demonstrating the equipment required to enjoy these CDs.  Why is Canada not eliminating market-distorting “taxes”, as Ministers themselves have called them, for the private copying of sound recordings, when the USA, Australia and the UK have categorically rejected such "taxes"?

12.    In fact, there are more than 21 ways in which Canadian laws are already stronger than American laws, most of which result in Canadian money going south.  Why would we add more than necessary to this already lopsided list?

13.    It should be remembered that copyright law is almost invariably a one-way ratchet. Rights given can rarely be taken away without enormous political and/or legal ramifications.

14.       And let's avoid excess complexity. Bill C-11 is really complicated. An ordinary Canadian household - much less a school or an SME business - should not require a resident copyright lawyer to get through the day without risk of serious litigation. And if that risk, however remote for practical purposes, is there but ignored, the law falls into disrepute. Laws that are too complicated to understand by those to whom they apply and which, when they are finally understood, make commonplace, socially acceptable and beneficial behaviour illegal are not wise.

15.    Therefore, we need to get it right. The Government has been listening for a long time and working quite hard on this. But the Government is still listening too much to certain sources whose economic interests run counterproductive to what is best for Canada and Canadians.

16.    Let’s take a few more months, listen to the Supreme Court of Canada (which brought us the landmark CCH v. LSUC decision and many other excellent copyright rulings), and get this bill right.

All that said, here are a couple of my early media comments on Bill C-11:

An interview on September 30, 2011 by Dave Rutherford, the top rated radio talk show host in Alberta who speaks for a lot of people. He evidently holds even stronger views that mine. And if it hasn’t been obvious for a long time, Ottawa, Toronto and Montreal need to pay attention to what’s happening in Alberta. From Nenshi to Redford to Rutherford to Prime Minister Stephen Harper to numerous rebellious librarians, something is happening out there. It’s time that the rest of Canada pays attention.

A perceptive article by Jennifer Brown in the influential Canadian Lawyer magazine, which quotes me at some length as to why the Government ought to wait to hear what the Supreme Court of Canada has to say about the five cases it will hear on December 6th and 7th, 2011 before it rushes, for no apparent reason, to pass Bill C-11 before Christmas. 


The responsible Ministers, particularly the Honourable James Moore who is both tech savvy and culturally attuned, have worked long and hard on this file. They really mean well. However, they have been badly advised in many respects - mostly by lobbyists and diplomats who have no concern whatsoever with Canada’s best interests, though I’m sure they to purport to speak for “Canadian artists”.  The Ministers should listen instead primarily to those who genuinely wish to help them help Canadians to do what is best for Canada. If the Ministers do so, Canadians will be very grateful. If they don’t Canadians will be very disappointed.

It’s high time for a “time out” while we wait to hear what the Supreme Court of Canada has to say in the five (5) cases that will be heard in a few weeks.  And consider whether we want embrace all that is good about "Rip, Mix and Burn" or repress it.