MOORE HAS HIS FACTS WRONG ON COPYRIGHT

Minister James Moore’s attempts to paint opposition to his proposed copyright bill as “radical” and offside with Canada’s international trade obligations are just plain wrong. In a letter to the Minister of Industry and Minister Moore, New Democrat Digital Affairs Critic Charlie Angus (Timmins – James Bay) said the Conservatives are out of step with the international community and need to check their facts with the World Intellectual Property Organization (WIPO), the trade body that deals with international copyright obligations.
“The digital lock provisions will subject Canadians to arbitrary limitations on their legal rights of access,” said Angus. “The government is trying to create the impression that this unbalanced approach to digital locks is necessary in order to bring Canada into compliance with WIPO and the Berne Convention. Nothing could be further from the truth.”
Angus pointed out that WIPO allows signatory countries enormous latitude for determining the limitations for digital locks. The Conservatives, however, are pushing a maximalist approach that would allow a digital lock on a DVD or an e-book to override any rights that would be normally guaranteed to citizens for access and extraction of works.
"The government is establishing a two-tiered set of rights. Bill C-32 offers rights that consumers will be restricted from exercising,” said Angus. “These provisions make a mockery of the claim that the bill is balanced and pro-consumer.”
Angus noted that many WIPO compliant countries have developed balanced copyright. He is calling on Moore to ask WIPO for an official opinion regarding the right of Canadians to break digital locks in order to legally access works that they otherwise have a right to access.
“Either the government has a faulty understanding of international treaty obligations or is looking to use these existing treaties as a cover to pursue a specific political agenda,” said Angus. “The New Democratic Party will challenge any provisions that would lead to unbalanced and arbitrary copyright legislation.”

letter to Minister below

OTTAWA

The Honourable Tony Clement
Minister of Industry
235 Queen Street
Ottawa, Ontario K1A 0H5
Fax : 613-992-0302

The Honourable James Moore
Minister of Canadian Heritage
15 Eddy Street
Gatineau, Quebec K1A 0M5
Fax : 819-994-1267

July 6, 2010

Re: Digital Locks, Treaty Obligations and Bill C-32

Dear Ministers Clement and Moore,

As you well know, the New Democratic Party has been a consistent advocate of the need to update Canada’s copyright regime. We have stated our willingness to work with the government on moving forward with balanced copyright legislation that responds to the realities and needs of Canadian creators and consumers in this second decade of the millennium. To this end, I am writing you regarding our party’s growing concern over the proposed digital lock provisions in the Bill C-32.

Much of the public concern over C-32 relates to the unbalanced approach being taken with regards to digital locks. By failing to ensure that works containing digital locks are subject to the same access rights and exemptions as works in the non-digital realm, the government is creating a two-tiered level of rights for consumers and educators. Instead of legal certainty, Canadian citizens will face arbitrary limitations on their legal rights of access.

Minister Moore’s comments that such concerns reflect “radical” or “extreme” viewpoints must be challenged. The fact that Minister Moore made these comments while defending Canada’s need to meet international trade obligations could create the mistaken perception that the digital lock provisions of C-32 are necessary in order to comply with existing international treaties. Nothing could be further from the truth.

It is simply not credible to defend such an unbalanced approach as being necessary to bring Canada into compliance with WIPO and the Berne Convention. If this were the case, the government would be able to show that it has vetted the digital lock provisions to prove they are consistent with the three-step test as embodied in Article 9(2) of the Berne Convention, Article 13 of the TRIPS Agreement and Article 10 of the 1996 WIPO Copyright Treaty.

I believe the government will be unable to produce evidence that these onerous digital lock provisions are the result of existing treaty obligations. To this end, I am making a formal request that you seek an opinion from WIPO regarding the issue of specific exemptions laid out in Bill C-32 and whether or not extending these exemptions to materials encoded with TPMs would be consistent with international obligations.

The exceptions in Bill C-32 include: fair dealing (Section 29), the creation and dissemination of non-commercial user-generated content (Section 29.21), reproduction for private purposes (Section 29.22), fixing signals and recording programs for later listening and viewing (Section 29.23), the making of back-up copies (Section 29.24), certain educational uses (Sections 29.4, 29.6, 30.1-5), certain archival copying (Section 30.21), reproducing computer programs for purposes such as compatibility (Section 30.6), copying for the print-disabled (Section 32.01).

While the New Democratic Party lauds the codification of these exemptions, we note that they are essentially limited to the hard copy, non-digital world. They are limited because the legal protection for TPMs (Technological Protection Measures) trumps any rights that would otherwise be afforded to consumers. Section 41 of the Act lays out legal protection for digital locks (TPMs) with a very narrow window of exemptions. Those exemptions are only for purposes such as law enforcement (Section 41.11) and computer program interoperability (Section 41.12).

There are no exceptions for consumers who circumvent TPMs for fair dealing, format shifting, time shifting, or the making of private copies. Thus Bill C-32 offers rights that the consumer will not be able to exercise. These provisions make a mockery of the claim that the bill is balanced or pro-consumer.

In terms of existing treaty obligations, does the right to impose digital locks supersede domestic rights defined in copyright legislation? Clearly not. The proposed exemptions provided in C-32 for formation shifting or fair dealing easily meet the exemption tests of WCT, the WPPT and the Berne Convention.

These are rights defined and recognized by precedent. Digital locks however, are not guaranteed copyright rights, they are simply enforcement measures. At the most, TPMs may be thought of as adjuncts to exclusive rights, thus they cannot trump actual rights guaranteed by law.

The WIPO treaty does not, in any way, limit the ability of Parliament to craft “Made in Canada” legislation that reflects a balanced position on digital locks and legal-use exemptions.

Canada would certainly not be breaking any new ground by attempting to balance these rights. For example, on June 10, 2010, WIPO’s Standing Committee on Copyright and Related Rights released the results of a questionnaire on limitations and exceptions in Member Countries. Thirty-one Member States responded that they had TPM provisions, while six stated they did not. Of these, nineteen states “indicated that in their national laws, at least in some cases, provided mechanisms to ensure that prohibition of circumvention of TPMs does not prevent the beneficiaries of copyright limitations and exceptions from exercising them.”

More specifically, the WIPO questionnaire asked, “Do limitations and exceptions prevail over the prohibition to circumvent TPMs?” Sixteen countries were reported as communicating to WIPO that “in their national laws, limitations and exceptions prevail over the prohibition to circumvent TPMs,” and one country, Poland, reported that the protection against circumvention does not apply if TPMs are circumvented to allow lawful use.

Treaty language clearly states that limitations may be supported as long as they “do not conflict with a normal exploitation of the work” (Article 10 of the WCT) .
In fact, the treaty goes further and states (Article 10) that all signatory countries, including Canada, may, “carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.”

There is nothing in the treaty suggesting that the freedom granted in Article 10 does not apply to the WCT Article 11 TPM right. Indeed, since TPMs are not rights at all, but merely enforcement measures to rights, it is absurd to suggest that there can be fewer exceptions to an adjunct to a right than exceptions to the right itself.

Resolving the issue of exemptions for digital locks will be key to resolving the debate that has developed around Bill C-32. Therefore I point you to the analysis provided in the book "The WIPO Treaties: 1996" (Tottel Publishing 2007) by Jorg Reinbothe and Silke von Lewinski, where, on page 146, paragraph 27, it is written that the WCT "contains no obligation to protect technological measures in areas ... where limitations and exceptions to the rights exist under domestic law and have thus permitted by law the use of the protected works."

In the following paragraph, they add: “The link contained in Article 11 WCT between the protection of technological measures against circumvention and limitations of an exception to the rights is, therefore, rather strong.”

This view is backed up in the comprehensive 2003 study “WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment,” by Professor Sam Ricketson the leading scholar on the Berne Convention and the WIPO treaties. In the study, he makes the following observation regarding TPMs: “Whether exceptions and limitations are provided under national laws to the protective measures required by Articles 11 and 18 [of the 1996 WIPO Treaties] is therefore a matter entirely within the Contracting States’ discretion.”

I have taken the steps to reference these works so that you can be reassured that Canadians who raise questions about the unbalanced implementation of digital lock provisions are not pushing “extreme” or “radical” views. In fact, they are very much within the mainstream regarding international implementation of these treaties.

Indeed, if there is a case for any “extreme” behavior in the present debate it would be the decision of the government to use C-32 to pursue an agenda that goes well beyond the norms established by WIPO signatories.

As it stands now, Bill C-32 is a flawed piece of legislation and will face increasing opposition because of its one-sided approach to digital locks. It is clear that either the government has applied a faulty understanding of international treaty obligations or is looking to use these existing treaties as a cover to pursue a specific political agenda.

Either way, the New Democratic Party will challenge provisions that would create a two-tiered set of rights with arbitrary limitations on citizen’s use of legally-accessed works.

Nonetheless, I would prefer to address these issues in a manner that would restore public confidence in the copyright legislative process. This is why I am making the formal request that you write to WIPO and seek its opinion as to whether Canada would be in non-compliance with the WCT and WPPT if the exemptions laid out in Sections 29.21, 29.22, 29.23, 29.4, and 29.6 in Bill C-32 were granted to digital products under TPM. I also request that you forward my letter in your correspondence with WIPO.

The government cannot reasonably refuse to get an opinion from the agency that administers the very treaties the government claims are tying its hands. Once we have determined whether the exemptions granted in C-32 can be applied to the digital realm, parliamentarians will have the tools needed to work through the details of this legislation to ensure that an updated copyright regime responds to the needs of Canadian creators and citizens.

I look forward to hearing from you in this matter.

Sincerely yours,

Charlie Angus, MP
Timmins – James Bay