On Bill C-11, Another Act To Amend The Copyright Act

Between April 2006 and March 2011, Canada was governed by a minority Conservative government, meaning the government needed the co-operation of the opposition parties to pass legislation. Despite a lot of talk about minority governments necessarily yielding instability, having a minority government forestalled the worst of the Conservatives' plans. In the last federal election in March, the Conservative Party won a majority of the seats in Parliament – meaning they have enough votes to pass any legislation they want, barring opposition within their own party. Given Prime Minister Stephen Harper’s iron-fisted control over his caucus, that’s unlikely.

One of the Conservative’s pet projects is “modernizing” the Copyright Act, introducing bills twice during minority Parliaments. Those bills died on the order paper when Parliament was suspended. Before that happened, consumer advocate groups and tech policy wonks conducted large-scale public education campaigns and pushed back on the worst parts of the bills.

To be sure, good changes were proposed. Adding more exceptions for fair dealing (Canadian fair dealing is an enumerated list, not a general principle, like in the US – one of the few high points of US copyright law), and limiting statutory damages for small-scale infringement were both good (not perfect) changes. But the bad overshadowed the good. Primarily, the provisions protecting “digital locks” – it would be illegal to break DRM regardless of the reason. And it doesn’t look like the government has changed anything in the bill since the last Parliament – Michael Geist has a good review of the proposal, and I wrote a submission in summer 2009 on bill C-32.

So, archives can preserve copyrighted works in the public interest – unless they’re protected by DRM. Consumers can back up their software, music, and videos – unless they’re protected by DRM. You get the picture.

There are three problems with this. The first is that this just isn’t good public policy – giving the force of law to DRM essentially constitutes sticking your head in the sand. There are legitimate reasons for breaking DRM, and the proposals ignore the very real public interest in not having these uses blocked.

The second is perhaps more academic, but I think no less important. The changes essentially abdicate the government’s responsibility for creating laws to private corporations. If some company decide to do so, they can magically make an otherwise-legal action illegal.

Finally, such a bizarre policy just won’t be respected by Canadians. Techdirt, an influential blog on technology policy, writes on this topic regularly. If you have unreasonable requirements in law, then those laws will simply be ignored. If the government wants to engender greater respect for copyright in Canada, then they’re doing exactly the wrong thing. They should be striking a reasonable balance, not throwing giveaways to the US copyright industry.

The legislation is unchanged from the last Parliament, so they don’t plan on re-starting the committee hearings (those who have already spoken won’t be asked back), giving every indication they’re just going to ram it through – and they have the required votes. Unfortunately, the opposition parties can’t block this bill from becoming law, and I doubt if we can create a large enough public backlash to change the government’s plans.

I suppose the Conservatives are proud of themselves, but I and many Canadians are not proud of our country today. Caving to US pressure is not patriotic.