We have just wrapped up reviewing bill C-32, Canada’s copyright reform bill. Since Canada had a huge public consultation on the matter earlier, we found it to be an interesting idea to go over the submissions and try to determine whether or not Canadians were listened to or not.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
Since it would be far too complicated to simply go through every single submission, we’ll use Michael Geist’s submission summary of the 2009 copyright consultation to help determine whether or not Canadians were listened to or not.
You can check out our review of the Canadian copyright reform bill in our previous articles (part 1, part 2, part 3, part 4, part 5, and part 6)
Obviously, one cannot listen to absolutely everyone’s ideas since so many contradict each other – after all, there were 8306 submissions in the copyright consultation. So who was listened to and who was ignored?
Our review will go: what the submission is, the verdict (did they get what they want (Winner) or not (Loser) or is that debatable (Debatable), and the summary of my reason for coming to that conclusion?
Just keep in mind that this is not a legal opinion issued by a trained professional. This is merely the opinion of a concerned average Canadian citizen.
Submissions against another Bill C-61 – total submissions: 6138
Verdict: Debatable
Summary: This is a very broad comment. Was the reasoning that Bil C-61 was too loose or too tight? What provisions were there in particular that made Bill C-61, well, Bill C-61? There are new provisions such as damage awards which was not seen in C-61, but there is also the anti-circumvention part which, if you read the exceptions, may as well be the same as C-61 as far as consumers are concerned.
Submissions in favour of shorter Copyright terms or against extending Copyright terms – total submissions: 5520
Verdict: Loser
Summary: Nothing in the legislation increased or decreased the term of copyright that we could tell.
Submissions against anti-circumvention or in favour of limiting DRM/Digital locks – total submissions: 6641
Verdict: Loser
Summary: This bill is pretty much full of anti-circumvention. While there are exceptions related to fair dealings, everything, as far as the consumer is concerned, is overridden legally by the presence of a digital lock. While there are exceptions, they do not or hardly effect general consumers.
Submissions in favour of stronger personal use/copying and backup protections including format shifting and time shifting rights – Total submissions: 6242
Verdict: Debatable
Summary: As mentioned in the previous section, on the presence of a digital lock, fair use is overruled. Still, by technical definition, fair dealing is strengthened by the exceptions found in the bill. So really, they are both strengthened and weakened at the same time. The severity depends on what you are doing with what content.
Submissions in favour of an “open copyright” system – Total Submissions: 16
Verdict: Loser
Summary: We aren’t entirely sure what is meant by “open copyright” in particular in this case. After reading the bill, we didn’t really see anything that would suggest “open copyright”, so we are putting this in the “Loser” category for lack of evidence that those that submitted this got what they wanted.
Submissions advocating abolishing or reforming Crown Copyright – Total Submissions: 209
Verdict: Loser
Summary: That we can tell, crown copyright wasn’t even touched in this legislation.
Submissions opposed to adopting an American-styled DMCA – Total Submissions: 262
Verdict: Debatable
Summary: A vast majority of the anti-DMCA sentiment originates from the anti-circumvention laws found in the DMCA. In that sense, these submissions would be put in the “Loser” category. Some of it revolves around takedown notices (notice and takedown). In that sense, it would actually be in the “Winner” category. So, it all depends on what the focus was when discussing “DMCA-style”.
Submissions in favour of stronger fair use/fair dealing protections – Total Submissions: 5962
Verdict: Debatable
Summary: Like the stronger copying submissions. With anti-circumvention laws, this would put these in the “Loser” category. However, if you want to be technical in saying that without digital locks, these are stronger, then you can legitimately say this. For many, this is little comfort though.
Submissions opposed to implementing WIPO – Total Submissions: 19
Verdict: Loser
Summary: There were very few submissions in favour of this. There were provisions in the bill that is suppose to bring us in line with “international agreements” including WIPO that we could tell.
Submissions in favour of eliminating all copyright – Total Submissions: 14
Verdict: Loser
Summary: It’s very rare that people go as far as to say we should eliminate all copyright. This is the false myth perpetuated by foreign copyright holders. In any event, the bill is definitely not eliminating copyright.
Submissions against a three-strikes rule – Total Submissions: 170
Verdict: Winner
Summary: Against CRIA’s wishes, this copyright reform bill contains no three strikes provision.
Submissions that favour a “notice and notice” approach – Total Submissions: 6027
Verdict: Winner
Summary: With what the copyright bill has said, notice-and-notice will definitely be continuing under the current iteration of the copyright reform bill.
Submissions in favour of instituting a levy for file-sharing/monetizing P2P – Total Submissions: 104
Verdict: Loser
Summary: The ever famous SAC proposal as well as the voluntary collective idea of the EFF. Unfortunately, it didn’t ultimately make it’s way in to very many submissions and never even got close to the copyright reform bill.
Submissions in favour of greater exemptions for education/research – Total Submissions: 74
Verdict: Winner
Summary: As far as research is concerned, there were definitely exceptions to anti-circumvention laws. With that on top of fair dealing exceptions inserted in to the bill, it’s enough to say that this would fall under the “Winners: category.
Submissions in favour of establish a good-faith defence that the user believed their use of a work was fair and non-infringing – Total Submissions: 5958
Verdict: Winner
Summary: There are small provisions located in the bill that would hint at this sort of thing because a judge would determine the amount of damages. It’s, as far as we can tell, sort of a winner.
Submissions in favour of laws that are technologically neutral – Total Submissions: 5617
Verdict: Winner
Summary: There’s sufficient grounds to believe that this is technologically neutral. It’s neutral even on the fact that if there were copy controls, legally, you would have to abide by it. Really, it doesn’t say a whole lot about the bill either negatively or positively.
Submissions that argue individuals should be protected from liability as long as their use was private and non-commercial – Total Submissions: 5987
Verdict: Loser
Summary: While there is a separation for damages in commercial and non-commercial use, individuals aren’t necessarily “protected” outright as this entry would suggest.
Submissions in favour of a parody/satire exemption – Total Submissions: 80
Verdict: Debatable
Summary: Difficult to say for sure. While the bill addresses parody, there’s also moral rights that throws a wrench in to things.
Submissions in favour of ISP neutrality – Total Submissions: 76
Verdict: Winner
Summary: Network neutrality is buried in the legislation. If this refers to making ISPs little more than dumb pipes, then that is in the bill as well. Either way, a winner.
Submissions satisfied with current laws – Total Submissions: 29
Verdict: Loser
Summary: If this was a winner, we wouldn’t have a copyright reform bill at all.
Submissions calling for a stronger/updated public domain – Total Submissions: 133
Verdict: Loser
Summary: As far as we know, nothing in the bill strengthens the public domain in any way.
Submissions against media levies – Total Submissions: 45
Verdict: Loser
Summary: If this was an attempt to ban media levies, that obviously failed. The legislation made a few edits that might have increased the strength of current levies as a matter of fact (towards the end of the bill)
Submissions that favour low caps on statutory damages for non-commercial infringement – Total Submissions: 47
Verdict: Winner
Summary: Interesting that this was a winner when looking back at the consultation. We’ve covered this portion of the bill to great detail in our review, so we know these submitters got what they want there.
Submissions in favour of digital access to archival holdings – Total Submissions: 29
Verdict: Debatable
Summary: Is there a digital lock on that mister?
Submissions concerned about maintaining privacy – Total Submissions: 23
Verdict: Winner
Summary: Winner by default since this wasn’t really addressed in the bill. There were anti-circumvention laws, but security researchers can dig in to this and discover any privacy flaws.
Submissions in favour of stronger penalties for copyright infringement – Total Submissions – 11
Verdict: Loser
Summary: As far as we can tell, technically, penalties really didn’t increase that much if they did. With the distinction of commercial and non-commercial infringement, you could safely argue that, in many cases, penalties were lowered (since non-commercial infringement is much more common)
Submissions in favour of turning copyright into a crime – Total Submissions: 5
Verdict: Loser
Summary: Actually, this was vague. Was it making infringement criminal or making copyright a crime? More than likely, it was the former. In any event, we didn’t notice infringement becoming a criminal offense.
Submissions arguing for more protections/reforms for photographers – Total Submissions: 21
Verdict: Winner
Summary: There were reforms for photographers that we noticed.
Submissions against works being available in digital or other forms for free and that argue creators need to be fairly compensated – Total Submissions: 256
Verdict: Loser
Summary: A very strange idea to ban all forms of digital content for free (what if the creator wants it free?). In any event, there’s no ban on free content in the legislation.
Submissions arguing for stronger protection for writers and other artists – Total Submissions: 79
Verdict: Winner
Summary: There was tonnes about the bill that was about rights protection – just look at remedies and anti-circumvention to name two huge examples.
Submissions opposed to creating new/expanding exceptions – Total Submissions: 108
Verdict: Loser
Summary: New and expanding exceptions were inserted in the bill. Not that they mean much with anti-circumvention.
Submissions opposed to an expansion of fair dealing – Total Submissions: 107
Verdict: Loser
Summary: Fair dealing was expanded, technically speaking. Again, not that this means much with anti-circumvention.
Submissions in favour of notice and takedown – Total Submissions: 24
Verdict: Loser
Summary: As far as the bill is concerned, it’s pretty much status quo with the notice-and-notice regime.
Submissions in favour of implementing WIPO – Total Submissions: 187
Verdict: Winner
Summary: Inverse of being opposed to WIPO. As far as we can tell, the bill is WIPO friendly.
Submissions promoting a collective licensing scheme – Total Submissions: 97
Verdict: Debatable
Summary: Was it for strengthening collective licensing schemes in particular or was it creating a new licensing scheme. Unfortunately, too vague to say for sure.
Submissions in favour of high statutory fines – Total Submissions: 9
Verdict: Loser
Summary: Again, there is a distinction between commercial and non-commercial infringement. Was it high like the US? No.
Submissions promoting longer copyright terms/opposed to shortening copyright terms – Total Submissions: 5
Verdict: Loser
Summary: Again, term was neither increased nor decreased in this bill.
Submissions in favour of fining those who violate copyright laws – Total Submissions: 1
Verdict: Winner
Summary: A strange submission comment considering how general this is. Fines do exist for copyright violations, so this submission was a winner.
Submissions in favour of limiting/halting unauthorized file sharing – Total Submissions: 153
Verdict: Winner
Summary: Very difficult to determine this one. Realistically, enforcement would be impossible. Since we’re not talking about enforcement, but rather, what is in the bill, then technically, these submissions got what they called for since unauthorized copyright infringement is technically punishable. Would it halt file-sharing, hardly. Even three strikes can’t do that.
Submissions endorsing Bill C-61 – Total Submissions: 54
Verdict: Debatable
Summary: As we said towards the beginning, what part of Bill C-61? Anti-Circumvention? Then they got what they wanted. Damages? Then no, they didn’t get what they want.
Submissions proposing the expansion of the private copying levy – Total Submissions – 73
Verdict: Debatable
Summary: By how much? There was that provision tacked on towards the end that allow collectives to collect royalties whether or not rights holders authorized it or not. So really, this is debatable.
Submissions supporting anti-circumvention measures – Total Submissions: 46
Verdict: Winner
Summary: Obviously, anti-circumvention is in the bill.
Submissions proposing a re-sale right – Total Submissions: 25
Verdict: Loser
Summary: I’m not aware of this really popping up in the legislation. I think there was actually provisions that prohibit this, but not completely certain.
Submissions calling for broader Moral Rights protections – Total Submissions: 24
Verdict: Winner
Summary: Moral rights is in this legislation.
Submissions calling for ISPs to play a bigger gatekeeping role in stopping online piracy – Total Submissions: 19
Verdict: Loser
Summary: As far as the legislation is concerned, ISPs are dumb pipes.
Submissions proposing a graduated response penalty system – Total Submissions: 5
Verdict: Loser
Summary: Graduated response or three strikes is definitely not in this legislation.
TOTALS:
Winning Opinions: 18,500
Losing Opinions: 19,291
Debatable Opinions: 18,938
Total Opinions: 56,729
On an interesting note. When it comes to opinions that say artists deserve to be paid, by technicality, those people did not get what they wanted. The bill was long on enforcement and short on compensating artists. I didn’t see anything that actually ensured artists get paid. By a stretch, record labels are definitely going to make money, but artists are getting shafted if they wanted to be, for sure, compensated for their work. Was this an appropriate channel to demand that artists get paid? Maybe. If you want to look for provisions that talk about who is getting compensated, look towards the beginning of the bill and you’ll see the emphasis is on rights holders, not artists.
So, when you boil it all down, did the government listen to its own citizens? Even looking at all the opinions of the consultation, all of the provisions and comparing the two, and crunching the numbers, I would conclude that the government ultimately just did their own thing on the fact that there’s such inconclusiveness in the numbers. If the government listened to its own citizens, there would be a huge majority of numbers in the “Winners” column. If the government ignored its citizens, then a vast majority of the opinions would be in the “Loser” column. That is why we can safely say that the government did its own thing. Was it trying to strike a balance in the middle of the debate as far as the consultation is concerned? I would argue that the numbers could have been closer together (between the winners, losers and debatables) for that kind of conclusion.
Drew Wilson on Twitter: @icecube85 and Google+.
