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Law & Disorder / Civilization & Discontents

“Canadian DMCA” defends DRM, legalizes DVRs

Canada's major new copyright reform legislation would legalize DVRs, CD …

Canada's long-awaited copyright modernization bill appeared today. If passed, it would explicitly legalize DVRs, YouTube mashups, backups, and parodies—and it would slap strong, US-style restrictions on bypassing DRM.

Forget fair dealing; as in the US, digital locks trump all.

The good, the bad, the ugly

Last time around, Canada's tough attempt at reforming its copyright laws fell apart over widespread public anger. The country learned its lesson, eventually embarking on a lengthy public consultation process before trying again.

The product of those consultations dropped today in the form of Bill C-32 (read a leaked version). It provides a host of welcome changes to Canadian law and legalizes behavior that Canadians have been engaging in for years.

The highlights:

  • Time-shifting. It's finally legal, though with an odd caveat: "the individual keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time." In other words, no long-term archiving. Also, no giving recordings away.

  • Format-shifting. Ripping CDs—finally, unambiguously legal! You need to own the original source material.
  • Backups. They're now legal for all digital works, though you can't bypass DRM to make one and the source must be a legitimate copy.
  • Statutory damage distinctions. Statutory damages now apply differently to non-commercial infringers and range from CAN$100 to CAN$5,000 in such cases. Commercial infringers can be hit with up to CAN$20,000 per infringement. Compare this to the US, where willful infringement can hit $150,000 even for noncommercial use.
  • Mashups. C-32 contains a section on "Non-commercial User-generated content" that makes mashups legal, even when they use copyrighted content. So long as they are noncommercial, mention the original creator (when "reasonable in the circumstances to do so"), and don't have a "substantial adverse effect" on the market for the original work.
  • Temporary copies. The bill would legalize most temporary copies made by technical processes, such as caches and fleeting copies existing only in RAM.
  • Parody. Canada's limited fair dealing rights get a boost, with named copyright exceptions for "research, private study, education, parody, or satire."

When it comes to ISP liability, the bill skips the US "notice-and-takedown" model found in the DMCA. Instead, it codifies a "notice-and-notice" regime. If a rightsholder sends a copyright infringement letter to an ISP, the ISP does not need to take down or block access to that content; instead, the ISP need only forward the notice to the subscriber in question. This keeps the dispute over infringement between the two main parties, and keeps ISPs from getting involved.

The bill also ratchets up enforcement against P2P sites. "It is an infringement of copyright for a person to provide," says the bill, "by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service."

But the big new enforcement piece is the DMCA-style DRM provisions. Bypassing DRM won't be allowed except in a few narrow cases. Just as in the US, the bill makes no exception for legal uses; DRM trumps fair dealing. Circumvention software and devices would also become illegal to sell or distribute.

It's this provision that incenses copyright critics like law professor Michael Geist, who otherwise has a positive take on the bill.



The bill remains open to amendment as it moves through the legislative sausage grinder. Canadians who care about these issues would be well-advised to contact their MPs quickly, perhaps noting that ratifying the 1996 WIPO Internet Treaties (one big goal of C-32) does not actually require this sort of approach to DRM.

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