October 6, 2011 10:15 AM

Canadian Heritage Minister James Moore recently granted TVO's Search Engine an interview on Bill C-11 and Canadian copyright reform. The interview demonstrates yet again that Moore is one of the government's most skilled ministers - he knows the copyright file and is able to actively debate its merits. Yet the interview raised several points worth challenging.

At 4:30, host Jesse Brown raises the issue of the "book burning" provision that requires students and teachers to destroy lessons that rely on the exception within 30 days of the conclusion of the course. Moore moves quickly to the departmental talking points that I obtained under Access to Information, which claim that this is simply part of the balance. Yet few teachers will rely on a provision that mandates the destruction of their materials at the conclusion of a course and few students will want to have their materials destroyed. The provision is an illusion - it looks at first glance like it will assist education, yet practically it will be ignored. At 6:00, Moore continues by arguing that it is common for students to encounter "time limited" materials. But this provision does more than just create time limitations for students since it creates matching time limits for teachers, which effectively ensures it will rarely be used.

At 12:00, Brown and Moore engage in a discussion on digital locks, with Moore turning to the claim that the government isn't imposing digital locks, that the free market should work, government should get out of the way, and creators should be able to protect themselves against people who want to hack into their product and steal from them. Brown notes that a better balance is available by linking circumvention to infringment, to which Moore goes right back to the department talking points that simply state the government has the right balance.

Moore's response demands a few comments.

First, no one has suggested that the government is requiring digital locks. However, far from allowing the free market to work, it is proposing interventionist legislation that creates incentives to use digital locks since copyright works enjoy far more rights when a digital lock is present. Without a digital lock, copyright works are subject to the usual copyright balance including the various copyright exceptions or user rights.  With digital locks and Bill C-11, the copyright exceptions often disappear. Second, everyone agrees that creators should enjoy protection. That isn't the issue. The issue is why the government is choosing to deny Canadians their user rights/exceptions when a digital lock is used.  It could protect against those that "want to hack into their product and steal from them" and retain the exceptions by linking circumvention to copyright infringement, but it is choosing not to do so.

At 15:50, Moore restates something he said at the press conference: "piracy should be illegal in Canada and right now it's not." This is simply false. Leaving aside the fact that "piracy" is not a legal term in the Copyright Act, Canada is currently compliant with its international obligations.  People who make unauthorized copies of copyright without an exception violate the law as it stands today. People who authorize infringement of copyright can be found liable under the Copyright Act. The Copyright Act includes some of the largest statutory damages in the world. There are currently lawsuits in Canada against individual file sharers and websites like isoHunt that use existing law. To say that piracy is presently legal in Canada is plainly wrong.

At 18:00, Moore harkens back to his "radical extremist" comment of June 2010 when, after Brown asks about file sharing lawsuits, he says that he has read Brown's stuff and that the one political party that agrees with the idea that "people should be able to hack into other people's software" is the Pirate Party. Moore knows full well that those calling for balance on digital locks include mainstream political parties such as the Liberals and NDP, along with virtually every education group in Canada, library group, consumer groups, and business groups. This is not about a wild west for copyright. It is about retaining the same balance that exists offline in the digital realm.

Finally, at 19:00, Brown raises the issue of U.S. influence over the Canadian copyright reform process.  Moore interjects by stating "I have not met with a single American [movie] studio." A review of the lobbyist communication reports indicates that this may not be accurate. The reports reference a meeting with the Motion Picture Association-Canada and Moore in 2010, just weeks before Moore appeared before the C-32 committee.  More recently, Moore met with the Canadian Recording Industry Association and the Canadian Chamber of Commerce's IP Council, which features both the MPA-Canada and CRIA as members. None of this is surprising or wrong (the only surprise would be if the Canadian Heritage minister didn't meet with these groups).  The surprise was Moore's claim to have not had such meetings.

Blogger Profile: Michael Geist

Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. Dr. Geist has written numerous academic articles and government reports on the Internet and law and was a member of Canada's National Task Force on Spam. He is an internationally syndicated columnist on technology law issues. He is an internationally syndicated columnist on technology law issues.

Posted by Sue Ansell at October 6, 2011 10:15 AM

Categories: Copyright

Comments

Andrei Mincov email - mincovlaw.com

A much more legible version of Bill C-11 ( http://canadacopyrightlaw.com/doc/bill_c-11 ) and the version of the Copyright Act with the proposed amendments consolidated (http://canadacopyrightlaw.com/doc/canadacopyrightact_consolidated_with_bill_c-11 ).

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