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Last Chance For Copyright Extremists To Warp Bill C-11


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Last chance for copyright extremists to warp Bill C-11

Globe and Mail Update


Wednesday, Mar. 14, 2012 1:00PM EDT


Things are rapidly coming to head with the fourth effort to revamp copyright law in Canada in the last seven years (Copyright Modernization Act, Bill C-11).

The bill itself has numerous elements that are not bad as currently written (no term extension for copyright holders, a very limited role for ISPs, search engines and others as “digital gatekeepers,” an innovative user created content add-on to fair dealing, etc.), but deeply troubling aspects as well (the digital locks provisions, notably). While the bill has passed second reading and finished committee review last week (March 7), during the latter stage the “copyright maximalists” lined up one after another in a last-ditch push to convince MPs that the bill needs to be radically overhauled and stuffed with all sorts of provisions that have thus far been rejected.

More related to this story

The bill is now with Parliament for a clause-by-clause reading and while there’s still third reading and Senate review to pass, there may still be 11th-hour attempts by a few lobbyists to rewrite the bill.

What kind of provisions, you no doubt ask? Here’s just a partial list, culled mostly from the music and gaming industry lobbyists and like-minded legal advisors (see here and here):

  1. Tough rules that could require intermediaries from ISPs through to search engines (e.g. Google), social networking sites (e.g. Facebook, Digg, Twitter) and data/web hosting sites (e.g. BlackSun and other “cloud” providers) to block access to websites and others alleged to enable copyright infringement.

  2. The substitution of a "notice and take-down" as well as the graduated response regime that would see ISPs disconnect subscribers accused of repeated copyright infringement instead of the much less intrusive "notice-and-notice" regime already included in the bill and practiced as a matter of course by all of Canada’s major ISPs.

  3. Claw backs to the innovative user-generated content (UGC) clause of the act that allows people to make mashups and remixes for non-commercial uses.

  4. Copyright term extension from lifetime of the creator plus 50 years to life plus 70 years.

The chances of any of these things being adopted is uncertain, but it needs to be stated clearly that any attempt to stuff the bill full of SOPA-like provisions is a non-starter. For those not in the know, SOPA stands for the Stop Online Piracy Act in the U.S. that gained so much notoriety earlier this year that its backers finally put a stake through its heart, at least for the time being. But that was only after an extraordinary outcry against the bill and after Wikipedia, Firefox, Google and thousands of other sites went black for a day on January 18th, 2012.

SOPA would have required: (1) ISPs to block access to ‘rogue websites’, (2) search engines to make such sites disappear from their results and (3) payment providers like Paypal and Visa cut-off payments, etc. Such activities would constitute the fundamental remaking of the Internet contemplated unleashed a firestorm of protest, in the U.S. and globally, ultimately leading to a tactical withdrawal of SOPA. Yet as SOPA was being withdrawn in the US, the copyright maximalists here in Canada were on a roll and began pushing what looks like much of the same thing.

The first indication of this can be seen in the language used, with the copyright maximalists such as Barry Sookman, James Gannon, the Entertainment Software Association of Canada (p. 6) and the Canadian Federation of Musicians carving up the world into “good guys” and “bad guys,” backed by repeated references to “wealth destroyers.” This stuff is imported directly from copyright maximalists such as Daniel Castro from the supposedly “non-partisan” Information Technology and Innovation Foundation (ITIF) who referred to “parasites,” “rogues” and “leeches” to make his case for the “mother of SOPA” early last year.

I’ve done this before but it bears repeating that the claims of wealth destruction are bogus. The trick is simple when it comes to the music industry, which in the present case has been bandying about a figure of $800-million dollar as having simply disappeared. That figure has been subsequently recycled by those on the committee, notably by Dean Del Mastro of the Conservatives, who stated on opening day and drawing directly on the lobby group Music Canada: “Over $800-million a year [is] going missing. That’s coming right out of the pockets of artists, and that’s money that’s not being invested in this country (at 1645-50 in the transcripts).”

I have no idea where this figure has been tallied from, but it seems to be a magnification of already circumspect numbers that have been used in the past. The ruse in all this, as I’ve shown in earlier posts, is to take just one part of music industry revenues — recorded music sales (cds, LPs, etc.) — that really have suffered badly, i.e. dropping about $550-million (not $800-million) in the past eight years, and then let this one segment stand for all revenues across the media industries as a whole.

The music business only appears to be in dire straits if you don’t include the recorded-music segment and the three fastest-growing segments of the business: (1) concerts; (2) Internet and mobile phones; (3) publishing rights. Once we do that, the world looks entirely different.

And this is not just the case for the music industry, but the movie industry as well. Again, the following chart helps illustrate the point (click to zoom in):


Source: MPAA (2011). Theatrical Market Statistics— Source: MPAA (2011). Theatrical Market Statistics

Source: MPAA (2011). Theatrical Market Statistics.

As with the music industry, these figures for “Box Office Revenues” are only half the matter, actually a little less than half the matter. When we open our eyes wider to look at all revenue sources for the film industry, including pay-per view TV, cable and satellite channels, video rentals, rapidly declining DVD sales and fast-rising new areas such as online subscriptions and digital downloads, the picture changes dramatically.

Doing that, it is clear that the movie business is doing even better than the box-office numbers suggest, rising sharply on worldwide basis from $46.5-billion in 1998 to $87.4-billion in 2010. Table 1 below shows the trend.

Table 1: Worldwide Film Industry Revenues, 1998 – 2010 (US$ Millions) 1998 2000 2004 2008 2009 2010 Change % 46,484 52,803 82,834 82,619 85,137 87,385 + 88%

Sources: PriceWaterhouseCoopers (2010; 2009; 2003), Global Entertainment and Media Outlook.

The same case can be made for the electronic software and video gaming industries, the constituents of the Entertainment Software Association of Canada (ESAC) and their corporate lobbyists who have also been out their plying their trade, backed by similar dubious assertions.

That their positions are indeed those of radical extremists can be seen by, for example, comparing them with other interests in the mainstream of business thinking, such as the Business Coalition for Balanced Copyright. The BCBC group represents most of the major ISPs in Canada (Bell, Rogers, Telus, SaskTel, MTS Allstream), Google, Yahoo, eBay and so forth.

Where the ESA, Canadian Federation of Musicians, Canadian Independent Music Association and copyright lawyers like Mr. Sookman and Mr. Gannon, call for “much stronger and enforceable” notice-and-takedown regime, and graduated responses that would require ISPs to disconnect Internet users accused of repeatedly infringing copyright material, the Business Coalition for Balanced Copyright forcefully rejects “notice-and-takedown and graduated response policies, which would turn intermediaries into ‘copyright police.’ ” The group also rejects such a role being imposed on other digital intermediaries such as Google and social media services.

This is not unusual. To its credit, one of the world’s largest telecom and Internet gear manufacturers, Ericsson, makes the same case in perhaps even more expansive language. Indeed, while supporters claim that the “graduated response” and digital intermediary strategy have only a minimal impact on individual liberties (see here and here), a recent UN Internet & Human Rights report minced no words when it argued exactly the opposite point of view: “. . . [C]utting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, [is] disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights."

As for the attempted claw back on user-generated content, once again we see the copyright maximalists as not just being out of step with others but so wedded to a restricted view of the world that they think that copyright law is all about them. Yet, as James Boyle observes in The Public Domain: Enclosing the Commons of the Mind (pp. 66-70), copyright sets out rights for creators and owners, on the one side, and users, readers and audiences to do as they please with media acquired legitimately, on the other.

From the blinkered position of the maximalists, it’s easy to understand the drive to extend copyright terms from life of the author plus fifty years to seventy, but why not in perpetuity? That they have not pursued this is mere capitulation to political reality versus any kind of principled stance.

Reading any of the above “copyright maximalists” interventions one would be hard pressed to know that copyright law is about two sets of interests: copyright holders and media users. To them Bill C-11’s carve out for non-commercial user-generated content is completely unacceptable, akin to a tax, a subsidy, a sop thrown to the masses. It is not, it is simply recognizing that people have rights too.

This is the tragedy of the digital locks provisions of C-11. Indeed, whilst the bill acknowledges a new right with the user created content provision, the restrictions on tampering with digital locks effectively nullifies those rights. In other words, what the bill gives with one hand, it taketh away with the other.

Again, the Business Coalition for Balanced Copyright is much more onside in this matter than the content and entertainment industries. Indeed, they are emphatic that the greater articulation of user rights in the Bill is an advance, and that this is especially so with respect to the user created content right, but state equally emphatically that “the digital locks provisions render them illusory.”

Ericsson stakes out a similar position, setting out three general principles that ought to govern whatever digital locks mechanisms that are used and backed by the force of law:

  1. They should be “built on an interoperable set of proprietary standards or consist of DRM technologies that are based on open industry-wide standards.

  2. “Must not limit individuals’ statutory right to make legal private copies of Music, Books and AV works.

  3. “[C]ontract law and technical standards should not be allowed to override statutory exceptions such a fair use regime or private copy exemptions, thereby limiting the availability of lawfully acquired content to format or device shift within the scope of the private sphere.”

My point in all this is not to make a fetish out of those who make, own and run the pipes that make up the Internet. Instead, it is to demonstrate that those who are trying to stuff Bill C-11 with SOPA-stlye restrictions are radical extremists, and well in the minority.

Dwayne Winseck is a communications professor at the School of Journalism and Communication, Carleton University in Ottawa. Prof. Winseck been researching and writing about media, telecoms and the Internet in one way or another for nearly 20 years. You can read more comment on his blog, Mediamorphis.

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