Meera Nair

correction to the Honourable Member

In Posts on February 10, 2012 at 9:18 pm

During the current debate concerning C-11 (the Copyright Modernization Act), the Honourable Member Scott Armstrong (CPC) sought to bolster the merits of C-11 by invoking the presumed support of Canadian students:

That is why the Canadian Alliance of Student Associations is in support of this bill. It states that “the government has demonstrated a commitment to…Canada’s education community”. It goes on to state that students across Canada are greatly encouraged. It goes on to state that “the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers”.

The Honourable Member omitted some details. Following the announcement of Bill C-32 (the predecessor of C-11), the Canadian Alliance of Student Associations (CASA) expressed favour at the expansion of fair dealing, but also expressed concern. From the CASA statement dated to 3 June 2010:

By expanding fair dealing as proposed in Bill C-32, the government has demonstrated a commitment to creating new, supportive measures in our copyright law for Canada’s education community … CASA members are concerned that this excellent education right may be lost in the debate around digital rights management, but we will continue to review the legislation and provide feedback to Minister Clement and Minister Moore to ensure that the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers (emphasis mine).

CASA members are not the only Canadians concerned about the capacity of C-11 to give with one hand, and to take with the other. As Michael Geist has repeatedly documented (ex. here and here), thousands have expressed their wishes, to the Government of Canada, that the legality or illegality of circumvention of digital locks be determined by the purpose of the circumvention. Said another way, circumventing a lock for a legitimate purpose should not be infringement. Such an approach is consistent with the World Intellectual Property Organization (WIPO) Treaties of 1996.  (These treaties appear to be among the principal reasons for amending Canadian copyright law, despite the fact that the treaties were highly contested.*)

Even more curious about the Honourable Member’s remarks is his keen awareness of the industries that have come of age and repute, under our existing copyright law:

The Copyright Act was changed in 1988 and then again in 1997. Many of the technologies we enjoy today were not invented by then and many of the students who I used to teach, who enjoy these devices today, were not even born the last time the Copyright Act was changed. The current act does not respond to the opportunities and challenges provided by Web 2.0 and social media. It does not answer the needs of the multi-billion dollar industries of today that were in their infancy the last time Parliament amended the Copyright Act. For these reasons, we need to modernize Canada’s copyright laws and bring them in line with the demands of the digital age. (emphasis mine).

There is an absence of logic with the Honourable Member’s conclusion. If multi-billion dollar industries grow in the shadows of copyright, Canada would do best to keep those shadows as broad as possible.

* See Michael Geist, The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements in Michael Geist, ed., From ‘Radical Extremism’ to ‘Balanced Copyright’: Canadian Copyright and the Digital Agenda 204 (Irwin Law, 2010).

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