ZeroPaid Interviews Russell McOrmond 2 – Canadian Bill C-32 (Part 1 of 3)

About two years ago, we interviewed a Canadian consultant to discuss various issues surrounding copyright. It was a fascinating interview and here making his return is Russell McOrmond for a second interview.

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

Russell McOrmond has always had interesting insights in to Canadian copyright as it impacts technology, creators, consumers and businesses. Over three months before Bill C-61 was tabled, we had the privilege to interview him in a three part series (1, 2, 3).

A lot has changed since 2008 when we interviewed him. For one, Bill C-61, the then newest copyright reform bill was tabled. Afterwords, an election was called and that killed the bill, an election was called, Canada had a nation-wide consultation on copyright, and Bill C-32, Canada’s most recent copyright reform bill, was tabled earlier this year. So there was plenty of things that happened between our last interview and now.

How much has changed and what seems to have never changed? That is up for debate, so we have invited Russell McOrmond back for a new interview. As you might remember, McOrmond is the host of, a co-coordinator of and a policy coordinator for to name a few projects he is doing.

We begin our three part series with him:

ZeroPaid (ZP): Bill C-32 is considered by most as an omnibus bill and there’s so much to consider in such a complex bill. I know because I’ve already gone through the bill and there were so many issues being touched on, I got that feeling of being completely overwhelmed with all of the complexities. I thought with my years of knowing the copyright debate in Canada, that I could just go through the bill without too much of a problem, but I was dead wrong and I couldn’t even begin to claim that I know everything about the bill even after a thorough review. Generally, though, in your view, is the bill an improvement over the last bill (Bill C-61) and the Liberal party copyright bill (Bill C-60)?

Russell McOrmond (RM): These bills are each omnibus bills. Rather than having a focus that can have a reasonable discussion, both the previous Liberal government and the current Conservative government have created bills that mix so many unrelated things that it is impossible to make any overall evaluations.

Canadian Copyright is already strong enough to deal with nearly all legitimate interests of copyright holders. Bill C-32 doesn’t modernize copyright beyond the level it obtained in 1997, but largely pushes forward controversial ideas that originated prior to 1997. I believe that current Canadian copyright is better than it will be under C-32. While I think that modernizing Copyright is a good idea, I don’t believe C-32 moves towards that goal.

The issue that brought me actively into the copyright debate is so-called technical protection measures. With a technical background I analyses from a practical “what can exist in the real world”. This is different than policy makers and lobbiests who are trying to provide legal protection for what is essentially snake oil being marketed by a few anti-competitive companies in the technology sector.

I recently did a presentation titled “Why legal protection for technical measures is controversial” (Video and slides).

The types of activities which copyright regulates all assume that you already have access to content. Copyright has never concerned itself with concept of access, which was left to other areas of law.

Technical measures can restrict access, but can’t in the real world directly restrict the types of activities that copyright regulates.

In essence, Copyright and technical measures are disjoint, but technical measures and other areas of law such as contract and e-commerce overlap.

This distinction is critical for a few reasons:

a) We don’t want to radically change the traditional definitions of copyright to include “access” as the concept of “access” would effectively replace the rest of the Copyright Act.

b) We don’t want to create a back-door protection of “access” by protecting “access control” technical measures, essentially creating two different forms of copyright: one for analog works, and one for digitally encoded works.

c) We have to ask why we aren’t protecting technical measures in contract, e-commerce and other laws where real-world technology overlap with uses applicable to the laws. Is this a matter of policy makers not understanding technology, or not understanding the law?

Is there possibly lobby groups whose goals are to dismantle the concept of Copyright and replace it with something very different that doesn’t protect the interests of creators or the general public? When I hear some lobbiests, especially those paid by the recording industry, I don’t hear much respect for the traditional definitions or contours of copyright.

The Liberal Bill C-60 contained a translation into Canadian law of what the 1996 WIPO treaties said. They tied legal protection for technical measures to activities that were already infringing.

The two Conservative bills C-61 and C-32 included both the WIPO language that the Liberals used, plus an explicit protection of “access control” technical measures they imported from the US Digital Millennium Copyright Act.

On this specific issue, which happens to be the most controversial, the Liberal Bill C-60 was far more consistent with the traditional definitions of copyright and international copyright law than either of the two Conservative bills.

ZP: When we were discussing the bill, you mentioned that the length of copyright is actually changing in some cases even though it is not directly mentioned in the bill. Is the length of the copyright term changing with this bill?

RM: It is an over-simplification to suggest that the copyright term is the life of the author plus 50 years. There are a number of other places where the term is different for a variety of reasons.

Under current copyright law, where the owner of the “initial negative or plate from which the photograph was derived” is a corporation, the term of copyright is a fixed 50 years from when the photograph was made. This is being repealed by Bill C-32, such that it will be the life of some unknown and most often unknowable person plus 50 years.

Under current copyright, the term for a performers performance is 50 years from when it was performed and/or recorded. Under C-32 this is able to be extended by publishing the recording, at worst 49 years from when the recording was made giving an effective 99 year copyright term.

These are both cases of recordings, in one case photography and in the other sound recordings of performances.

I am a firm believer that the copyright in all recordings should be based on the date when the recording was made. Multiple recordings can be made of a real-world event, and it is impossible to differentiate which is made by which human, whether that human is working for a specific corporation, or even if a human was involved beyond installing equipment and/or pushing a button to start the recording. Knowing who this human is to determine the term of copyright that expires based on the death of this human is impractical, and should not be considered in Copyright.

The changes to copyright of recordings seem to presume that all or a majority of recordings are being made by artists. These days with recording devices in the pockets of so many people, and being used casually in many places of business (and by governments for surveillance and other reasons), the number of recordings attributable to professional art is almost insignificant. It is frustrating to see Copyright changed to favour this almost insignificant minority while making life so much harder for the majority.

ZP: Many consider the anti-circumvention parts of the legislation as DMCA-style, but supporters of the bill say that there are a host of exceptions and that concerns about anti-circumvention are overblown. Are the anti-circumvention provisions too broad and the exceptions too narrow? Do they protect fair dealings?

RM: Bill C-32 anti-circumvention includes both WIPO style protection which was intended to respect the contours of copyright including fair dealings, and “access control” technical measures which have little to do with traditional definitions of copyright.

The USA DMCA explicitly protects their flexable Fair Use regime, and makes some ties to the existing contours of their Copyright, by stating that “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title”. Bill C-32 explicitly states in a few places that what limited fair dealings we have are able to be circumvented through the abuse of a technological measure.

The types of excessively complex fair dealings language seen in C-32 are not necessary in the USA as it has a flexable fair use regime. Their more modern and robust fair use regime has been interpreted by their courts far more liberally and protected far more innovation and fair activities than the extremely weak fair dealings language in Canada.

In other words, not only are the anti-circumvention provisions in C-32 too broad and the exceptions too narrow and unnecessarily complex, but that C-32 is far worse than the USA DMCA.

I sometimes wonder if the supporters of the bill have actually read various documents such as C-32, the two 1996 WIPO treaties, existing Canadian copyright act and the USA DMCA. In some cases they are paid lobbiests whose job is to confuse and misinform, and in other cases it is people who have not done adequate research.

Part 2 of our interview is currently being posted at this time. Part 2 of our interview has now been posted.

Drew Wilson on Twitter: @icecube85 and Google+.

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