When Copyright reform hit Canada and it was discovered to be serving only a few multinational interests, CRIA (Canadian Recording Industry Association), an organization long seen as merely an arm of the RIAA (Recording Industry Association of America) in Canada after major Canadian record labels left them over CRIA’s views on the previous copyright reform legislation was quick to applaud the latest copyright reform by the current Conservative government.

One of the groups that CRIA showed off was a group known as ACTRA (Alliance of Canadian Cinema, Television and Radio Artists) who, in a press release, said that C-61 was ‘a good first step’. It’s an interesting stance considering back in January were reports about strikes over being paid – namely in new media or online revenues. So, some how, the organization that has fought against mainly foreign interests over unfair wages is still all for letting them take on overwhelming new powers against the Canadian consumer base at large through copyright reform. One ACTRA member has recently made serious concerns publicly known recently.

“A few months ago, I wrote a long open letter to ACTRA (a union to which I belong as a performer),” writes Jason Chesworth of Broadcast This, “questioned the union’s position which overwhelmingly supports changes to the Copyright Act that they believe will enrich the finances of their membership. I wholeheartedly disagree with ACTRA…in fact…I believe that the proposed changes will become a major detriment to artists trying to create content while protecting only those at the top (read: broadcasters, big business and their lobby groups as well as internet service providers).”

Other highlights:

ACTRA went on strike over “new media”…so, why are they now practically handing new media over to those we struck against?!

It should be noted that all of this occurred *before* the proposed changes were made public. As soon as the changes to Bill C-61 were public knowledge, I made a bee-line over to the ACTRA website and (though not surprised at all), was thoroughly dismayed by Stephen Waddell’s (Exec. Director of ACTRA), statement that “vocal opponents of this Bill will characterize it as mimicking what’s already been done in the U.S., but that’s oversimplifying things.”

While ACTRA maintains that they are *not* in the pocket of big business, it’s hard to accept the idea that we can be (as a union), members of a lobby group with big business and still represent the interests of artists. To put a finer point on it: how can a union represent interests that aren’t heard? Again, forgive me, but…it makes me wonder who is advising the executive at ACTRA on these matters. How can ACTRA continue to bash our collective heads against the brick wall of government (censorship, arts funding) and keep coming up empty-handed, AND THEN – hand copyright and intellectual property control over to the very people that don’t want to pay us anything for our work.

What’s most fascinating about the post is that it highlights possibly a rather dark side to the copyright industry – buying copyright reform support. It also puts into serious question how sincere the support for the current iteration of copyright reform legislation as highlighted by CRIA really is. Obviously, when record labels like Nettwerk broke away from CRIA over copyright legislation under the previous Liberal government, many questioned how Canadian CRIA really was in the first place since the so-called A-list (the big four record labels) were allegedly trumped by the B-list labels (Nettwerk, etc. with big acts like Bare Naked Ladies, Sum 41, etc.)

Judging by the reaction from the ACTRA member, the kind of move as seen by Canadian record labels leaving CRIA over simply listening to international interests may be only the tip of the iceberg. Now that CRIA is relying heavily on other big acronyms (likely due to the dramatic fallout in 2005), it seems as though that kind of dissent may spread beyond Canadian record labels from within other organizations.

Also worth noting is Chesworth’s complete debunking of ACTRA’s Myths and Facts about Canada’s DMCA.

Hat tip: Michael Geist

Previously in our series:
Actual Text – Damages – $500 – $20,000
Actual Text – Music – Sony Rootkit Legalized

We are switching our focus a little on our series in this segment. While the previous entries focuses primarily on the text of the current legislation, this segment focuses on the legislation that is in front of Canadians today and the legislation of the previous government. Michael Geist also offers two series on the text of the bill, one entitled ‘A Week in the Life of the Canadian DMCA‘ and ‘61 Reforms to C-61‘.

As we mentioned at the beginning of the series, section 41 of Bill C-61 contains anti-circumvention legislation which bars Canadians from general fair dealings that was otherwise enjoyed if there is a digital lock on it. What does Bill C-60, the previous legislation say? It says the following in section 34:

34.02 (1) An owner of copyright in a work, a performer’s performance fixed in a sound recording or a sound recording and a holder of moral rights in respect of a work or such a performer’s performance are, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work, the performer’s performance or the sound recording for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it or for the purpose of making a copy referred to in subsection 80(1).

(2) An owner of copyright or a holder of moral rights referred to in subsection (1) has the same remedies against a person who offers or provides a service to circumvent, remove or render ineffective a technological measure protecting a material form of the work, the performer’s performance or the sound recording and knows or ought to know that providing the service will result in an infringement of the copyright or moral rights.

(3) If a technological measure protecting a material form of a work, a performer’s per­formance or a sound recording referred to in subsection (1) is removed or rendered ineffective in a manner that does not give rise to the remedies under that subsection, the owner of copyright or holder of moral rights nevertheless has those remedies against a person who knows or ought to know that the measure has been removed or rendered ineffective and, without the owner’s or holder’s consent, does any of the following acts with respect to the material form in question:

(a) sells it or rents it out;

(b) distributes it to such an extent as to prejudicially affect the owner of the copyright;

(c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public; or

(d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c).

From Bill C-61:

41.1 (1) No person shall

(a) circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, provide — including by selling or renting — offer for sale or rental or distribute any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a techno- logical measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

Outside of some rewording of the legislation, all-in-all, the anti-circumvention seems to remain relatively unchanged with a few exceptions. One of the most immediately obvious differences is that the Liberal legislation frames circumvention in a way that basically says, ‘the copyright holder is entitled to damages over circumvention’ while the Conservative legislation basically says ‘no person shall circumvention technological measures that is against a copyright holders permission’

This difference seems pretty significant considering that, before, it seemed as though the legislation would give way to lawsuits from copyright owners. Under this legislation, judging by the snippet, it would possibly open the door for any authority figure to target forms of copyright infringement. This kind of idea easily goes along with what ACTA would allow – searching of people’s iPods, laptops and other recordable mediums based on suspicion and permit authorities to “destroy” confiscated belongings. One might wonder if ACTA was around when Bill C-60 was tabled, if this backdoor would exist in the legislation at the time as it clearly does now.

Further reading: Our coverage on ACTA

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This is the second part of our running series on Bill C-61.
Part 1 of our series can be found here.

One of the news outlets that reported on the $500 per infringement was The National Post. Michael Geist meanwhile says that infringement damages (namely uploading) can run upwards of up to $20,000 per infringement. With all this in mind, it may quickly become confusing as to where the $20,000 per infringement even comes from – so much so that we had to ask Michael Geist for clarification on the matter.

First of all, the act has the following:

30. (1) Subsection 38.1(2) of the Act is replaced by the following:

(1.1) If a copyright owner has made an election under subsection (1), a defendant who is an individual is liable for statutory damages of $500 in respect of all the defendant’s infringements that were done for the defendant’s private purposes and that are involved in the proceedings.

(1.2) However, the copyright owner may not recover statutory damages from a defendant referred to in subsection (1.1) in respect of the defendant’s infringements that

(a) were done for the defendant’s private purposes before the institution of the proceedings in which the election was made; and

(b) are not involved in those proceedings.

(1.3) If a copyright owner has made an election under subsection (1) in respect of a defendant referred to in subsection (1.1), no other copyright owner may elect statutory damages in respect of that defendant for the defendant’s infringements that were done for the defendant’s private purposes before the institution of the proceedings in which the election was made.

(1.4) Subsections (1.1) to (1.3) do not apply with respect to infringements that were made possible because the defendant circumvented or caused to be circumvented a technological measure that protected the work or other subject-matter, within the meanings of the definitions “circumvent” and “technological measure” in section 41.

(2) If subsection (1.1) does not apply and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of an award under subsection (1) to less than $500, but not less than $200.

On a quick breeze through of the legislation, it really does look like not only would there only be a $500 per infringement provision, but claim that you didn’t know this was an infringement and damages would fall to $200 per infringement. There’s also the provision that suggests that a defendant can only be liable for an infringement only once and no other rights holders can claim damages on the specific infringement.

Now, consider the fact that typical claims of copyright infringement deal with more than one work. Consider the fact that, typically, an entire organization usually ends up being the rights holder of the works. In a specific case, an album might hold 12 songs. In this hypothetical situation, a copyright collective could claim damages on all 12 songs totaling up to $6,000 for merely downloading these works. A producer might claim infringement on one song, a manager might claim infringement of another song, etc. If a person downloads numerous albums, the total amount of damages can multiply and add up very quickly because it’s a different infringement in question. This was the easy part to understand.

Where does the $20,000 per infringement for uploading come from. First look at 1.2 (a) of this section and note that the $500 per infringement is for “were done for the defendant’s private purposes” This pretty much hints at the mere act of downloading. What about uploading or posting content? A simple word search for “20,000″ in the entire legislation will turn up with no results. In order to find “20,000″, one must look up the copyright act in section 38.1 (named Statutory Damages – author note: the anchor link points to the French version) This contains the following:

38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.

Where defendant unaware of infringement

(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.

Hang on a second, doesn’t act suggest that 38.1 would be replaced? This is what we asked Michael Geist and he responded, “The bill replaces 38.1(2). 38.1(1) is untouched.”

Of course, he’s referring to the first line in the section of the act which reads: “Subsection 38.1(2) of the Act is replaced by the following:”

The number 2 is important because it points specifically to the paragraph after the paragraph which specifically mentions the $20,000 in damages which, of course, renders 38.1 (1) untouched as Geist said. It’s a very ingenious part of the act because only the trained eye would catch something like this.

Of course, applying this in real life for the average file-sharer would make this act even more draconian. Bearing in mind what was mentioned in our hypothetical scenario of ‘per infringement’, most file-sharing applications, namely LimeWire, Azureus, uTorrent, eMule, etc. have uploading built-in to help the network grow. Most, file-sharing clients allow partial uploading, thus making it very easy to put a hypothetical defendant into the $20,000 per infringement category, not the $500 per infringement. Of course, there’s also the much publicized YouTube example of posting content as well, but this would also apply to anything else that involves some form of posting or uploading of content.

So really, there would be very few examples of copyright infringement that involves solely downloading content (outside of FTP and UseNet that is) especially considering that pretty much all of the copyright infringement cases in the United States only deal with uploading in the first place.

On a side note, there’s two great comic strips from Artizans making fun of the new Copyright legislation. The first one is by Michael de Adder and the second one is by Sue Dewar.

The current hope is that the legislation in question was really designed to not be passed and die on the order paper much like the Liberal copyright reform bill, Bill C-60.

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We reported earlier today that the Canadian DMCA was tabled. Reading legislation is a time consuming process. While we aren’t lawyers or are able to offer legal advice, we can offer how an ordinary citizen might interpret what is being said in the legislation.

We begin this series with one of the flash points held within the bill – the anti-circumvention provisions. This is namely the circumvention of music (which is called “Reproduction of music” in the act). This provision is found in section 29.22 of the act. The provision starts out seemingly reasonable enough with the following:

(1) It is not an infringement of copyright for an individual to reproduce onto a medium or device 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, or any substantial part of such a work or other subject-matter, if the following conditions are met:

(a) the sound recording is not an infringing copy;

(b) the individual legally obtained the sound recording, otherwise than by borrowing it or renting it, and owns the medium or device on which it is reproduced;

Is this a DMCA or a fair Use provision? It almost sounds quite reasonable and that this would allow for numerous new rights for the consumer such as format shifting. Unfortunately, and as Michael Geist has put it, “check the fine print”. The provision continues with this devil in the details:

(c) the individual, in order to make the reproduction, did not circumvent a technolog- ical measure or cause one to be circumvented, within the meanings of the definitions “circumvent” and “technological measure” in section 41;

Ouch, ouch and ouch again. First of all, Apple’s iTunes use DRM. So if you burn the music onto a CD (which would require circumvention, you’d be liable for copyright infringement. There’s also the issue of music that has some form of copy protection. One of the most notorious iterations of copy-protection was the Sony Rootkit DRM which opened up people’s computers to malicious attacks using cloaking technology that even virus scanners won’t pick up. So if you were to protect yourself from the Rootkit DRM and manage to put the music onto your hard drive, that would be an infringement. The same seems to be said if one were to get the music through disabling auto-run – a way to prevent the malicious rootkit software from being installed onto the computer. In essence, the Sony Rootkit through this provision alone has been more legalized then ever.

The provision mentions section 41 which states the following:

41.1 (1) No person shall

(a) circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, provide — including by selling or renting — offer for sale or rental or distribute any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a techno- logical measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

So basically, no one is allowed to break DRM in any way shape or form which appears to include the Sony Rootkit DRM according to 41.1 (1) A.

Making anything that is primarily used to circumvent DRM is illegal according to 41.1 (b). One may wonder how one can interpret the law. The main question is, who can make the opinion that a certain “device” has the primary function of DRM circumvention? Viacom suggests that YouTube is primarily used for watching TV, but this isn’t really true given that there are thousands of people posting videos of their own such as home movies, opinion pieces, vlogging, animation demos, music video demos (something even major record labels are offering), making parodies of videos, etc. etc. The question is, is YouTube only used for copyright infringement? Arguably, according to the major copyright industry, this would be accurate, but to the digital activist, this is not at all true. The same could be said for something that could be used to circumvent DRM in music. This legal gray area the act creates would no doubt open the floodgates for litigation.

Section C also makes it illegal to distribute devices that are ‘primarily used for circumvention’ This clearly takes away rights from software writers given that even if they give permission for their works to be distributed (ala GNU/GPL/etc.) then the people redistributing the software (i.e. file-sharing) would still be violating the copyright act.

Some suggest that the act will close a legal loophole for software writers. Arguably, this section alone goes beyond this and makes it possible to punish people who use file-sharing to obtain free/open sourced content of this nature as well.

Going back to the music provision, it goes on to say the following:

(d) the individual reproduces the sound recording no more than once for each device that the individual owns, whether the reproduction is made directly onto the device or is made onto a medium that is to be used with the device;

So, in other words, if one were to manage to obtain a DRM-free CD, manage to avoid DRM through the process of copying, you can only put this work onto a device only once. If, say, the song is accidentally erased, it would be an infringement to copy it over to that said device (i.e. iRiver) It’s even worse to think about what would happen if there’s a system failure of some sort on your computer because copying the music onto the computer would be illegal. Put it in another way through example:

1. Person buys an MC Lars album.
2. That person rips a copy of that album onto their computer.
3. That computer undergoes a system wipe due to viruses getting on there through the Rootkit installed via the Switchfoot album earlier.
4. Said person re-installs everything and rips the MC Lars album.
5. Said person buys and iPod
6. Said person copies Lars album onto iPod

This “said person” is now a copyright criminal because of step 4 which made step 6 possible. So much for format shifting.

Moving on to the next section which states the following:

(e) the individual does not give the reproduction away;

This seems reasonable enough until one factors in the simple fact that Canadians pay a levy on blank media. Basically, whenever a person buys a blank CD, money goes to a copyright collective known as the CPCC. In some respect, this makes it even more illegal to give away music via CDs, thus criminalizing free promotion through mix CDs, mixtapes, etc.

Moving on to a reasonable bit:

(f) the reproduction is used only for private purposes.

Obviously, physical pirates, which many in the file-sharing community never really liked that much to begin with, would be in trouble legally speaking because of this alone.

This is how a non-legal expert might interpret this section of the bill. Obviously, a lot of controversial parts in this one section alone, but since this is a large bill, this is pretty much only the beginning.

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