As discussed in our meeting last week, I have a number of concerns with the proposed amendments to the Copyright Act in Bill C-61. The lack of public consultation (to date) on this bill also concerns me, and in lieu of such a process I ask that the suggested changes to C-61 herein be sent to the Minister of Industry and those responsible for chairing its parliamentary committee (once it is convened).
Concerns with Bill C-61
First, I will elaborate on three of my concerns specifically to give my suggested changes some context:
Playing legitimately-purchased DVDs on a Linux computer will constitute copyright infringement, according to the definitions of technological measure and circumvent in Bill C-61 (section 41.1);
Backing up legitimately-purchased digital media (e.g., movies on DVD, music on CDs, music from on-line music stores) will constitute copyright infringement, according to a number of sections of C-61, including, but not limited to, section 29.22 (1) (d), and in some cases, 29.22 (1) (c); and
Playing movies from legitimately-purchased DVDs on a video iPod will constitute copyright infringement, according to a number of sections in C-61.
Playing DVDs on Linux
Software called DeCSS is required to play the majority of commercially-produced DVDs on the Linux operating system; this software decrypts the Content Scrambling System (CSS) – an encryption and authentication scheme designed to prevent the direct copying of video files off of the discs themselves – on these DVDs. CCS is administered by the DVD Copy Control Association, which excludes Linux from the licensing it requires of the manufacturers of all DVD-related equipment (including DVD players, for example).
By defining a technological measure as “any effective technology, device or component that... controls access to a work...” – as opposed to focusing on those that control the right to reproduce the work (i.e., copy-protection measures), which is all that is required by the WIPO Internet Treaties – Bill C-61, section 41.1 prohibits the use of DeCSS, thereby prohibiting the playback of legitimately-purchased DVDs on any computer running the Linux operating system.
Backing up digital media
By the same reasoning, making a backup copy of the movies on legitimately-purchased DVDs – in case the original is scratched or otherwise rendered unreadable – is also prohibited by Bill C-61. Section 29.22 (1) (c) also prohibits making a backup copy of the music on legitimately-purchased CDs that include any sort of digital rights management software, as well as the music in files legitimately purchased from on-line music stores such as Apple's iTunes store – again, in case the original is scratched (in the case of CDs), corrupted (in the case of music files), or otherwise rendered unreadable.
However, Section 29.22 (1) (d) is even more troubling, as it prohibits both of the methods I currently use for backing up all of my music (including the music on legitimately-purchased CDs without any sort of DRM software): 1) making backup copies to blank DVDs; and 2) Carbonite's on-line backup service. The latter is a service that, for a fee, allows the user to designate certain files on their computer(s) for backup to the company's servers.
By using either of these methods, I am making more copies of this music than I have devices to play it; however, given the money I have invested in this music, and the time I have invested in making it available on my computers and iPods (likely the equivalent of many weeks at least, given my collection of approximately 700 CDs), I think that I am justified in wanting to back it up.
Playing DVD movies on an iPod
Making a copy of a movie on a legitimately-purchased DVD for the purpose of playing it on my video iPod is also prohibited by Section 41.1.
Suggested changes to Bill C-61
In the light of my stated concerns with Bill C-61, I present two options to address them:
The Private Use option:
Retain the Copying for Private Use section of the Copyright Act (i.e., C-42, Section 80); and
Amend it to cover digital media in general, including, but not limited to, music, movies and video games; and
Amend the definition of technological measure in C-61, Section 41 to focus on controlling the right to reproduce a work (i.e., copy-protection measures); OR
The Backup Exemption option:
Retain the Computer Programs section of the Copyright Act (i.e., C-42, Section 30.6); and
Amend it to cover digital media in general (as outlined above); and
Amend the definition of technological measure in C-61, Section 41, as outlined above; and
Replace the reference to “videocassette” in C-61, Section 29.21 (1) with a more general term that could refer to any number of video formats we might have in the future; and
Remove C-61, Sections 29.21 (1) (c) and 29.22 (1) (c).
Rationale for suggested changes to Bill C-61
In addition to the reasoning I provided as part of outlining my concerns with Bill C-61, I would like to highlight some examples of international law that support the changes I have suggested to Bill C-61.
Regarding the definition of technological measures
New Zealand's Copyright (New Technologies) Amendment Bill1 includes the following definition:
TPM or technological protection measure—
(a) means any process, treatment, mechanism, device, or system that in the normal course of its operation prevents or inhibits the infringement of copyright in a TPM work; but
(b) for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work)2
The Lithuanian Law No. IX-1355 of March 5, 2003, Amending the Law on Copyright and Related Rights3 includes the following article:
Article 75. Limitations for Application of Technological Measures
1. When technological measures applied by owners of copyright, related rights and sui generis rights prevent the users of such rights from benefiting from the limitations of copyright, related rights and sui generis rights, provided for in paragraph 1 of Article 20, subparagraphs 1 and 2 of paragraph 1 of Article 22, paragraph 1 of Article 23, Article 27, subparagraph 2 of paragraph 1 of Article 29, subparagraphs 4, 5, 6, 7, and 8 of paragraph 1 of Article 58, and paragraph 1 of Article 63 of this Law, the users of the rights must be provided with conditions or adequate means (i.e. decoding devices and other) enabling to use legitimately accessible objects of copyright, related rights or sui generis rights to the extent necessary for the users of the rights to benefit from the limitations of copyright, related rights and sui generis rights provided for their interests.
I would point out that Lithuania has acceded both treaties that make up the WIPO Internet Treaties.4
Finally, the Norwegian Copyright Act5 includes the following section:
§ 53a. It is prohibited to circumvent effective technological protection measures that the rightholder or others he has given permission employs to control the copying or making available to the public of a protected work.
The provisions of this section shall not hinder research into cryptology. Nor shall the provision in the first paragraph hinder private users in gaining access to legally acquired works on that which is generally understood as relevant playback equipment.
Regarding Personal or Private Use
New Zealand's Copyright Amendment Bill also includes the following section on personal use:
81A Copying sound recording for personal use
(1) Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:
(aa) the sound recording is not a communication work or part of a communication work; and
(a) the copy is made from a sound recording that is not an infringing copy; and
(b) the sound recording is not borrowed or hired; and
(c) the copy is made by the owner of the sound recording; and
(d) that owner acquired the sound recording legitimately; and
(e) the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and
(f) no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and
(g) the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.
(2) For the avoidance of doubt, subsection (1) does not apply if the owner of the sound recording is bound by a contract that specifies the circumstances in which the sound recording may be copied.
Lithuanian Law No. IX-1355 also includes the following article on personal use:
Article 20. Reproduction of Works for Personal Use
1. It shall be permitted for a natural person, without the authorisation of the author or any other owner of copyright, to reproduce, exclusively for his individual use, not for direct or indirect commercial advantage, in a single copy a work published or communicated to the public in any other mode, where the reproduction is a single-action.
Regarding backup copies
Finally, in the following article, Lithuanian Law No. IX-1355 also discusses the idea of multiple backup copies for use in the event that the original is unusable (as I discussed in my concerns above):
Article 30. Making of a Back-up Copies and Reproduction for Adaptation of Computer Programmes
1. A person who has a right to use a computer programme, shall, without the authorisation of the author or other owner of copyright, have the right to make back-up copies of the computer programme or to adapt the computer programme, provided that such copies or adaptation of the programme are necessary:
1) for the use of the computer program in accordance with its intended purpose, including for error correction;
2) for the use of a back-up copy of the lawfully acquired computer programme, in the event the computer programme is lost, destroyed or becomes unfit for use.
4http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=1071C and http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=1264C