The Harper government is using its new majority to remove a long-standing trade irritant with the U.S. government by passing a law that will crack down on digital piracy and expand protection for copyrighted materials in Canada.
The Copyright Modernization Act has pride of place on the Conservative agenda as the third government bill introduced this fall sitting and Heritage Minister James Moore said the Tories aim to pass it through the Commons by Christmas.
It’s certain to find favour in Washington. There, Canada is currently seeking American help in preventing an expanded security bureaucracy from injuring cross-border trade as well as exemptions from protectionist measures that would block Canadian firms from bidding on $100-billion (U.S.) in government procurement contracts.
Breaking the digital encryption on a movie DVD – even if copying it for personal use – would make individual Canadians liable for legal damages of up to $5,000 under the bill unveiled by Industry Minister Christian Paradis and Mr. Moore Thursday.
It’s part of a clampdown on copying intellectual property from DVDs to video games to e-books that makes it illegal to break digital locks on these goods put in place to prevent duplication.
The bill is a carbon copy of legislation that the Conservatives tried, but failed to pass before the 2011 election when they held only a minority of seats in the Commons.
The Conservatives are signalling they’re not keen on budging from the bill as written, even though its digital lock provisions go beyond Canada’s obligations under international treaties.
Mr. Moore said the Tories will listen to what the Official Opposition NDP has to say, but he hinted the Conservatives aren’t expecting to compromise on digital locks.
“Unless it’s something that’s particularly stunning, I don’t see us moving,” the Heritage Minister said at a news conference with Industry Minister Christian Paradis. “We’ve heard all the arguments and we’re comfortable with our legislation.”
The legislation, long sought by the U.S. government, seeks to put more teeth in copyright law for those who make software, movies and other creative works – and have seen their intellectual property increasingly pirated around the globe.
Confidential U.S. diplomatic cables released by WikiLeaks earlier this year demonstrate how impatient Washington has been with Canada’s slow pace on this file. One 2009 memo from the U.S. embassy in Ottawa bore the sarcastic title: “Copyright reform in Canada: Day 4,235.”
The bill tries to soften the blow for consumers by legalizing commonplace but grey-area practices such as backing up the contents of a music CD, home recording of TV episodes for later viewing or copying legally acquired music to a digital player.
This new legal heft behind digital locks would trump consumer rights. It means, for instance, that allowances for Canadians to back up or duplicate copyrighted works for personal use disappear if a digital lock is present.
Mr. Moore said the Tories are unwilling to modify the bill to allow an exemption from digital lock breaking penalties for personal use, such as making a backup copy of an encrypted DVD.
He said the Conservatives would rather let the market resolve consumer reaction to digital locks, suggesting that if many buyers balk at these, companies would offer alternatives.
“The movie industry has digital locks on some films and not others ... An informed consumer makes the right choices. If people don’t want to buy a piece of software or a movie that has a digital lock, the don’t have to,” Mr. Moore said.
“It’s not that dissimilar from the organic food industry. If you want to buy organic food, buy organic food – and people will promote it that way,” he said.
Film companies have prosecuted consumers though, most famously in the case of Americans who downloaded pirated copies of the Oscar-award winning film, The Hurt Locker.
The Tories held a news conference on the bill at the Ottawa office of a software developer Thursday, a move intended to drive home the message that cracking down on copyright infringement protects investment in Canada.
The bill also targets big online pirates instead of individual down-loaders and would in fact lighten rather than increase maximum legal penalties for those who illegally download or upload copyrighted works on the Internet for non-commercial reasons.
The government is proposing to scale back the total legal damages that individual Canadians could incur for piracy of goods for personal use: to a maximum of $5,000 for all infringing activity, from an existing ceiling of up to $20,000 per protected work.
The legislation would go after the big fish in Internet copyright infringement, giving copyright owners stronger legal tools to shut down “pirate websites” in Canada that support file-sharing and introducing a separate criminal penalty of up to $1-million for serious caseswhere commercially motivated pirates crack digital encryptions.
The Tories are also expanding a limited list of exceptions where Canadians will be able to break copyright for legal reasons, adding parody and satire and limited allowances for education.
In what might be called the YouTube exemption, Canadians also will be free to create video “mash-ups” that borrow from commercial works for posting online.
Ottawa is trying to update copyright law – which hasn’t seen substantial amendments since 1997 – to reflect its obligations under international accords that have been toughened in the past decade.
The United States, home to Hollywood and a big software and music industry, has long pressed Canada to strengthen protections against piracy.
Internet law expert Michael Geist of the University of Ottawa said Washington lobbies for stronger digital lock protections around the world. “The U.S. has made this a centrepiece of their trade policy for over a decade now,” he said.
“The U.S. has really made its mission to try and ... export that standard to as many countries as possible,” he said.
Prof. Geist said the Americans believe Canada’s conduct on copyright protections could influence decisions in many other countries around the world.
The Conservative bill also codifies in law the “notice and notice” regime that Canadian Internet service providers employ when their customers are accused of infringing a copyright. Instead of the U.S. approach, where American ISPs are encouraged to unilaterally remove material accused of infringing copyright, Canada will formalize a system where ISPs first notify customers of the alleged infringement.