Canadian DMCA Tabled – File-sharers Could Get Fined $500 Per Infringement

It was one of the much anticipated and much feared bills for digital rights activists.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Now, at the last possible moment in the session of parliament, activists worst fears were realized as Jim Prentice tabled Bill C-61 which is dubbed ‘The Canadian DMCA’

The Canadian DMCA (Digital Millennium Copyright Act) got its name out of fears that the new copyright bill, which would amend the copyright act, would be modeled after the DMCA in the United States. The DMCA is very frequently pointed at for allowing the Recording Music Industry Association of America to sue thousands of American citizens and threaten thousands of college students for alleged copyright infringement.

Bill C-61 was tabled today and, as the nickname suggests, is modeled after the American DMCA. One of the major criticisms for the DMCA in Canada was the fact that the person who created the DMCA said that the DMCA was a failure. It’s now come to fruition that the Conservative party, the governing party in Canada currently, very likely ignored these criticisms and went ahead and tabled a copyright reform bill that is modeled after the DMCA anyway.

This isn’t the first time that DMCA-type legislation was tabled. Back in 2005, Bill C-60 was tabled by the Liberal party in Canada who was, back then, the governing party of Canada. Like the bill today, the copyright bill in 2005 was also modeled after the DMCA. The bill died on the order-paper when an election was called after the fall of the minority government.

There was attempts by the Conservative party to table copyright reform towards the end of 2007, but the fast growth of Fair Copyright for Canada among other things caused the party to panic and pull the legislation off the table. The movement didn’t stop there as Jim Prentice was later surrounded by protesters in his riding as this video shows:

While we are currently analyzing the bill, university law professor Michael Geist is offering a preliminary analysis of the bill. Here are some highlights he offers:

2. The digital lock provisions are worse than the DMCA. Yes – worse. The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent. While Prentice could have adopted a more balanced approach (as New Zealand and Canada’s Bill C-60 did), the effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM’d book, or even unlocking a cellphone.

While that is the similar to the U.S. law, the exceptions are worse. The Canadian law includes a few limited exceptions for privacy, encryption research, interoperable computer programs, people with sight disabilities, and security, yet Canadians can’t actually use these exceptions since the tools needed to pick the digital lock in order to protect their privacy are banned. In other words, check the fine print again – you can protect your privacy but the tools to do so are now illegal. Dig deeper and it gets worse. Under the U.S. law, there is mandatory review process every three years to identify new exceptions. Under the Canadian law, its up to the government to introduce new exceptions if it thinks it is needed. Overall, these anti-circumvention provisions go far beyond what is needed to comply with the WIPO Internet treaties and represents an astonishing abdication of the principles of copyright balance that have guided Canadian policy for many years.

3. The other headline grabber is the $500 fine for private use infringement. This will be heralded as a reasonable compromise, but check the fine print. Canadian law already allows a court to order damages below $500 per infringement, so the change may not be as dramatic as expected (though $500 in damages is the maximum for private use infringement). Moreover, it is already arguably legal to download sound recordings in Canada. Under the proposal, there are exceptions for uploading or posting music online (ie. making available) and even the suggestion that posting a copyright-protected work to YouTube could result in the larger $20,000 per infringement damage award.

5. The education community received several provisions that are largely gutted by the fine print. For example, library materials can be distributed in electronic form, but must not extend beyond five days. In other words, it turns librarians into locksmiths. Moreover, there is an Internet exception that educators wanted but it does not apply for any works that are either password protected or include a notification that they cannot be used. In other words, online materials that are available under a Creative Commons license are fair game (as they are already), but most everything else is still potentially subject to a restriction. This was precisely what many feared – rather than pursuing the far superior expansion of fair dealing, the education community got a provision that does little to enhance classroom learning.

While this will no doubt become a flash point for hot debate, we here at ZeroPaid will be conducting some analysis of our own in the coming articles on this topic.

Drew Wilson on Twitter: @icecube85 and Google+.

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