Yesterday, we went through the first page of Canada’s latest copyright reform bill (Bill C-32). It’s a lengthy piece of legislation that requires multiple articles simply due to its size. We continue with part 2 of our detailed review to verify what was reported all along and, maybe, find something new that was otherwise missed.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
Introduction
Yesterday, we had a detailed examination of the first part of Canada’s copyright reform legislation. We picked out things that were interesting in the legislation and discussed what we found.
There were certainly a few things that were rather cryptic, but that might be because we are not lawyers. So, just like in part one, we are not lawyers, nor are we qualified to give legal advice. As such, none of this should be taken as legal advice in any way. This is merely one average Canadian citizen reading through the legislation and talking it through.
We continue our review on page 2 of the legislation.
Section 22 – The YouTube Provision?
Note: If you are just opening up to page two of the legislation and only see the number 29, that is not the section because you have to look at page one on the very bottom to see that this is actually section 22 of the legislation. The header seems to just be poorly placed in the web pages is all. The very top of the section of page 2 is actually section 22 of the legislation.
There was talk of a YouTube provision where users could take content and “remix” it for non-commercial purposes. This section appears to be that provision previous reports were talking about.
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individ- ual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
One of the things that aids in the creation of new works is taking bits and pieces of previously made content and producing something completely unique. YouTube users in particular often take a few seconds of a copyrighted work and use it for, say, critical examination.
A rather famous example of this on YouTube was the Rubik’s cube viral video which features an alleged foot specialist solving a Rubik’s cube in a short period of time with his feet only. Another YouTube user who saw the video re-posted parts of the video and created a critical analysis where he debunked the video and showed that the video was, in fact, played back in reverse and, thus, showing that the “foot specialist” was merely scrambling the cube instead.
If you’re thinking that the video that was critically analyzed wasn’t really copyrighted because it was user generated, that would be incorrect because, at least in Canada for sure, copyright on content is made the moment it is fixated. Fixation is a French term that can mean the process of a liquid becoming a solid. In this case, it’s referring to the moment something is recorded in a medium. If a song is recorded on vinyl, it has been fixated. If a movie is filmed, it’s also been fixated. Sending content away in a sealed envelope to a copyright office is a way to confirm copyright, but it isn’t technically necessary to obtain copyright in Canada.
Reading through this particular provision is really uplifting to me because its very progressive because this can definitely help content creators make art and possibly not have to worry about whether their original work is infringement or not. It’s particularly uplifting to see (d) because it appears to address the use of sampling. Does a quarter of a second of audio sprinkled through a brand new piece of work constitute copyright infringement? As long as it’s not a substitute of the original work which, clearly, a short sample embedded in to an original work, is definitely not.
The only setback that I see directly in this particular provision is the culture of video game modding because (d) in this section says that as long as it’s not a substitute, it’s fine. A lot of game mods practically is a substitute of the original work in one light because the whole game can be completely changed around. Perhaps (b) might be a saving grace for game modding because most, if not, all legit game modding does typically leave behind the original creators of the work. Unless the game being modded is open source and licensed under an open license, this could potentially be a grey zone for developers.
The one thing that has come to my mind, and it is something that no one else has mentioned thus far, is what about international agreements? Say it’s legal in our country to take a sample of an existing work and create something else. What if that sampled work originates from a country that disallows sampling? That is something that isn’t real clear to me, but I’m not entirely sure if it was possible for this bill to be able to cover such issues.
The more publicized issue, of course, is the issue with digital locks. We haven’t gotten to those provisions, but it is something to keep in mind as we go through this legislation in detail.
Section 22 Continued – Reproduction for Private Purposes
Section 22 is definitely big and is covering a lot of ground. This next part of section 22 is definitely important:
29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if
(a) the copy of the work or other subject-matter from which the reproduction is made is not an infringing copy;
(b) the individual legally obtained the copy of the work or other subject-matter from which the reproduction is made, other than by borrowing it or renting it, and owns or is authorized to use the medium or device on which it is reproduced;
(c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;
(d) the individual does not give the reproduction away; and
(e) the reproduction is used only for private purposes.
(c) is definitely worth noting in particular in all of this because this is where, suddenly, every fair dealing suddenly ends. It’s also one provision that is definitely causing quite a substantial uproar because now, the laws of the land don’t decide your rights, but rather, rights holders. So if there is anything that definitely needs to be removed in this legislation it’s 29.22 (1) (c) as it’s entirely uncalled for.
There have been scholars in the past that argue that there is no way that rights holders would be locking everything down. That is likely because, in many cases, the legal framework isn’t there to rely on. I would argue that once certain restrictive legal framework is in place, everything will be put under lock and key. It’s already happening with BluRay and DVDs because the discs themselves come with a “digital lock”. If you have a home movie recorded on a DVD and you back that movie up by ripping the content from that DVD and burning that movie on to another DVD, you’ve broken the anti-circumvention law. Say what you want about the extra digital locks put on top of content (i.e. RipGuard), but the real devil is the digital locks embedded in to a device or medium itself.
Section 22 – Audio Work
There’s an interesting exception just shortly after this part and it does refer to the above part of section 22:
(3) In the case of a work or other subject-matter that is a musical work embodied in a sound recording, a performer’s performance of a musical work embodied in a sound recording or a sound recording in which a musical work or a performer’s performance of a musical work is embodied, subsection (1) does not apply if the reproduction is made onto an audio recording medium as defined in section 79.
This is interesting because Section 79 in the copyright act states the following:
79. In this Part,
“audio recording medium”
« support audio »“audio recording medium” means a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium;
I think it’s outrageous that this section is even in there. So let’s quickly review the youTube provision along with the exceptions. You can totally back anything you want up for personal use unless it’s a DVD, BluRay, HDDVD, a music album, a musical mixtape or anything that can record audio. This renders the exception of backing up something for personal use meaningless because it’s saying, “You can back something up for personal use unless it’s something you plan on backing up.”
This is definitely the concept of, “We give you some rights, then take them all away at the same time.” many observers have already pointed out. Definitely another provision that must be struck out of the bill because it’s just silly and nonsensical. Tell me how it makes sense that you are allowed to back music up as long as the medium that work is being reproduced on to is incapable of reproducing sound. Is this two ministers idea of a joke? It’s not funny.
Update: I was informed by readers as well as Michael Geist that it is possible that this particular section may have something to do with the private copying levy. If that’s the case, than this section of the bill is the most cryptic section I’ve come across so far.
Another reader asked why I said that this is section 22 when it says it’s section 29. To clarify, it’s section 22 of the bill, section 29 in the act. Since we are talking about the bill more specifically and not the copyright act already enshrined in the law, it makes more sense to go by the sections of the bill, rather than the act – particularly since the bill section numbers jump around far less.
Section 22 – Time Shifting
29.23 (1) It is not an infringement of copyright for an individual to fix a communication signal, to reproduce a work or sound recording that is being broadcast or to fix or reproduce a performer’s performance that is being broadcast, in order to record a program for the purpose of listening to or viewing it later, if
(a) the individual receives the program legally;
(b) the individual, in order to record the program, did not circumvent, as defined in section 41, a technological protection meas- ure, as defined in that section, or cause one to be circumvented;
(c) the individual makes no more than one recording of the program;
(d) 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;
(e) the individual does not give the recording away; and
(f) the recording is used only for private purposes.
Again, another provision that sounds good unless you read (b). In this case, it’s grounds for creating a broadcast flag that was so hugely controversial in the US. Another provision that is hugely controversial. I’d say (b) in this subsection should be struck down.
The subsection also offers this important part:
(2) Subsection (1) does not apply if the individual receives the work, performer’s performance or sound recording under an on-demand service.
So on-demand content does not count.
Section 22 continued – More backing up
This section appears to be directed at software, but it doesn’t make that obvious:
29.24 (1) It is not an infringement of copyright in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter (in this section referred to as the “source copy”) to reproduce the source copy if
(a) the person does so solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable;
(b) the source copy is not an infringing copy;
(c) the person, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection meas- ure, as defined in that section, or cause one to be circumvented; and
(d) the person does not give any of the reproductions away.
As usual, only this time it’s (c), digital locks are, again, impeding fair dealing. As already said previously, that particular part should be struck down.
Conclusion
We’re not all the way through page 2, but we have covered a lot of ground in this. A lot of the content covered is what is so hugely controversial. Personally, I think 29.22 (1) (c), 29.22 (3), 29.23 (1) (b), and 29.24 (1) (c) absolutely have to be removed from the bill if this bill can be considered “balanced”. If this bill passes as is, no one in their right mind would be able to follow those provisions. We know CDs don’t come encoded with a digital lock. I highly doubt that section 29.22 (3) was made without this knowledge – it was very intentionally directed at a specific technology.
Previously: A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 1)
Stay tuned for part 3. Update: A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 3) is now up.
Drew Wilson on Twitter: @icecube85 and Google+.
