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Can copyright bill survive with all its kinks? Add to ...

As your teen happily stuffs another "free download" onto her iPod, you may hope that the federal government will soon come riding to a parent's rescue with a law that is going to explain to her once and for all that unauthorized downloading is illegal - while permitting you to keep taping your favourite TV shows, of course.

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Don't hold your breath. The good news is that Bill C-32, the government's proposed copyright reform, should go to second reading and a parliamentary committee this fall to get the kinks ironed out before it becomes law. The bad news is that the kinks are complicated and pessimists wonder how this will ever get to third reading before an election is called and it dies on the order paper.

"This is the third time we have gone through this," said David Fewer, director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, referring to two previous copyright bills that never made it into law. "I have given up making predictions."

If passed, the bill would legalize several well-established consumer practices, permitting you to time-shift TV programs, make backup copies of CDs and DVDs and format-shift anything you have legally acquired, copying your CDs onto your iPod, for example.

But it doesn't permit you to pick any digital locks that producers might choose to install on their content, which is proving to be its most contentious provision. Critics say the digital-locks language will trump the permitted uses and all three opposition parties have said that needs to be amended.

"What the government gives with one hand, it takes away with the other," notes John Lawford, a lawyer with the Public Interest Advocacy Centre.

Still, the Internet community and consumer advocates are generally receptive to the bill. Fewer, for example, praises the way it goes after pirates rather than consumers, who will be subject to lower penalties if caught infringing copyright for non-commercial purposes.

Meanwhile, the music-recording industry welcomes the bill, although the Canadian Recording Industry Association (CRIA) thinks that it needs some technical tweaks to toughen the language against piracy.

The people who are decidedly unhappy are creators. They feel they have been left out in the cold by a bill that enshrines rights for consumers and provides laws to help big producers battle piracy but does not compensate artists for either the new exemptions or the unauthorized copying that will inevitably continue.

"Bill C-32 is deeply flawed," Bill Freeman of the Creators Copyright Coalition wrote in an e-mail. "The act is riddled with exceptions and it will invite complicated litigation."

The coalition is one of several groups that want to see a levy, either on ISPs or on technology such as iPods, or perhaps some kind of downloading licence fee, that would be passed on to a copyright collective and then distributed to artists. Proponents of levies and licences argue that they follow in the long Canadian tradition of compensating creators as a group for such practices as photocopying books or burning CDs of music.

"We need an ISP levy with collectives like SOCAN [and]Access Copyright … to distribute the funds in a fair way," Freeman continued, naming two collectives that currently distribute money to music composers, writers and publishers. "The Europeans are moving in that direction, but it will be difficult to get agreement from our federal politicians. The Conservatives will call it a tax."

Indeed, the Conservatives have already denounced what they have tagged devastatingly as "the iPod tax." In the House of Commons two weeks ago, Canadian Heritage Minister James Moore referred to the idea as "really dumb."

A new compensation scheme is also an amendment that might be tricky to enact - some political analysts suggest that it is contrary enough to the spirit of the current bill that it could not be done after second reading, at which point the bill is approved in principle. Instead, the bill would have to be amended in committee before second reading, further slowing the process.

Meanwhile, the debates over levies and digital locks have all but eclipsed the issue of bringing clarity to Canadian law when it comes to downloading music. Although the bill clearly outlaws copyright-infringing, peer-to-peer websites, lawyers are still debating its impact on private copying provisions in the current law. Those provisions are sometimes used to argue that music downloading for personal use falls into a legal grey area in Canada.

"We want to remove as much ambiguity as possible," said Marc Garneau, the Liberals' Industry critic. "The fact people are still asking the question means [the bill]hasn't achieved that. It would nice if we could remove all the moral dimensions from this. The world works better if you know this is legal and this is not."

Garneau thinks that Bill C-32 can be amended to satisfy the concerns raised and that committee work on it could prove a model of non-partisan co-operation. The government has yet to schedule second reading, but a spokesman for Moore says it plans to introduce the bill this fall, the opposition willing. Garneau figures they will be in hearings before Halloween.

 

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