The Canadian government today introduced its long-awaited, much-derided, totally-not-influenced-by-US-interests copyright reform bill (C-61) today. How do we know it wasn't influenced by US interests? The Canadian government says so.

"Our government has committed to ensuring Canada's copyright law is up-to-date, and today we are delivering by introducing this 'made-in-Canada' bill that balances the interests of Canadians who use digital technology and those who create content," said Industry Minister Jim Prentice in a statement today.

Made in Canada? What could possibly go wrong?

Consumer benefits

While there are some things to like from a consumer perspective, nothing revolutionary or even particularly interesting is present. Canadians will now have the right to legally record TV shows, copy legally-acquired music onto devices such as iPods, and make backups of books, newspapers, videocassettes, and photographs. That's... about it, and people are doing all those things already.

The other major benefit to noncommercial copyright users is that statutory damages will be capped at a mere CAN$500. Compared to the huge statutory rates payable in the US—Jammie Thomas paid more than US$9,000 per song—this seems like a far more rational approach. Until you look at the details.

Ah, those pesky details. In every case we've mentioned, the details make even the "consumer-friendly" parts of the bill a bit less friendly.

Take time-shifting as an example. Canadians have been doing it for years, but it hasn't been entirely clear that the practice was legal. The new bill does allow the time-shifting of both television and radio programs "to which you have legal access, including on-demand programs," but it limits this to a single recording with no further copies and explicitly rules out keeping the shows indefinitely. Canadians can't build up a library of shows this way as they could with a VCR.

When we come to backup copies, the list is a curious one: books, newspapers, videocassettes, and photographs. This is not accidental. The government's "fact sheets" on the bill indicate that DVDs are not included, and CDs don't seem to be, either. While a "backup right" might sound consumer-friendly, it doesn't apply to things that consumers actually want to back up: DVDs, computer software, CDs. Backing up books is not, so far as I can tell, a huge priority for people, in part because your toddler doesn't tend to destroy books by shoving them into the DVD player the wrong way.



Prentice takes a victory lap

Limitations on statutory damages for noncommercial copyright infringement have long been called for by consumer advocates in the US, and the Canadian bill initially seems to offer some relief here. But when applied to the digital world, the CAN$500 cap only applies to people who download infringing content.

"Posting" music "using the Internet or peer-to-peer (P2P) technology" or uploading a copyrighted picture or video to YouTube, Facebook, or your blog does not qualify for any protection, and anyone who does so remains liable for up to CAN$20,000 in statutory damages. In addition, judges have discretion to impose punitive damages in all cases.

That's it for consumer rights, and what's there isn't particularly interesting.

Creator benefits

Creators gain some important new rights and have other rights clarified to address P2P. The new bill makes clear that swapping copyrighted files is illegal and provides a "making available" right to creators. Making such a right explicit makes it far easier to go after file-swappers, since there is no question of having to prove that other people are downloading the file in question; if someone is making it available, that person is infringing.

In addition, rightsholders can go after those who bypass or break DRM schemes, giving them more ability to tie up content and devices simply by adding a bit of encryption. Courts in the US have placed limits on this practice (you can't slap some useless encryption into your company's garage door opener, for instance, and then try to lock out competitors on anticircumvention grounds), so we'll have to wait and see how a similar right actually develops in Canada.

Technological protection measures, also known as DRM, get full-on DMCA-style protection under the new bill. It is illegal to circumvent DRM or to provide circumvention services or devices. While other countries have allowed circumvention for legal uses, the Canadian bill only allows people to bypass DRM for the purposes of reverse engineering, security testing, and encryption research.

A union of Canadian consumer groups this week sent a letter to the government (PDF) urging that any new copyright policy "should seek to protect creators, the public, and the public interest, not the technology that limits access to content," but that request was ignored.

The government is unapologetic about its approach to DRM, even as it admits that it will be controversial. In a "backgrounder" on the bill, the government says that it is aware that "some groups fear that the legal protection of [DRM] will unduly hinder public access to works. Others view such protections as potentially threatening to free speech and privacy."

The rebuttal to these ideas is telling: "a majority of rights holders have been asking for years for Canada to get in line with the current international consensus on protecting copyright in the digital era." Ask and you shall receive, copyright holders! The government does point out that companies are under no obligation to use DRM and consumers are under no obligation to buy products that contain it, but that's cold comfort in the wake of the Sony BMG rootkit debacle.

The bill also increases the "moral rights" of creators, a European concept that basically gives an author or composer some rights over controlling how and where his or her work is used. The Canadian bill would make it illegal to "distort or mutilate a copyright performance," as the fact sheet has it, something which has the potential to cripple mashups, criticism, and certain forms of satire and remix if handled in the wrong way.

Finally, rightsholders get term extensions: music is now covered for 50 years after first publication and photographs are copyrighted for the life of the photographer plus an additional 50 years.

Just the beginning?

The government also makes clear in several parts of today's announcement that the bill is only one part of its copyright overhaul; the secretive development of the Anti-Counterfeiting Trade Agreement (ACTA) will also be part of the "government's broader intellectual property strategy."

That approach appears to fit perfectly with the way that the new copyright bill was developed: in secret, without public consultation. Now that the bill is out in the open and Parliament has a chance to whack away at it, we'll be watching to see whether a groundswell of protest can lead to a more consumer-friendly product after derailing an earlier version of the same bill last December.

The new bill is being pitched as a way to bring Canada into the modern age and "ensure that Canada's copyright protection will be among the strongest in the world." How "strongest in the world" and "balanced" (another term that pops up repeatedly) can coexist is left as an exercise to the reader.