For the fourth time in six years, new copyright legislation – the Copyright Modernization Act (Bill C-11) – was introduced last month and debated in Parliament last week.
The proposed new law has much to commend it. It holds the line steady on the length of copyright protection at the lifetime of the author plus fifty years. Crucially, it recognizes several new user rights, including the ability to swap content we already own across the devices we use, such as smartphones, tv screens, computers, tablets and so on.
So, if it passes, you can take the music or episode of The Wire you bought online and burn a copy to watch on your telly. People can also copy legally owned content for their own personal, non-commercial use, and for safe-keeping.
The most cutting-edge innovation is the nod given to the do-it-yourself culture of mass expression. People will be able to rip, mix and burn snippets of media content in order to create their own non-commercial parodies, satire, mash-ups and YouTube clips.
The biggest problem, however, is that these new rights are trumped by digital locks. Sure, do all of the things the new law permits until your heart's content, but only if you do "not circumvent ... a technological protection measure."
So long as this triumph of technology and contracts over human will and communication rights is left to stand, critics are right, the bill will be irredeemably flawed. They are also right to criticize overly cozy and secretive consultations with Washington leading up to the bill's introduction. The book-burning clause that requires students to destroy copyright-protected, online components of courses after receiving their final grade is just dumb.
There is something else, however, that has not yet received the attention it deserves: the "notice and notice rules" that require all ISPs to forward notices from copyright holders to Internet users alleged to have illicitly downloaded and shared content online. ISPs will also be required to retain records for six months that allow the identity of subscribers to be established and later disclosed if things end up in court.
This essentially translates into law a voluntary deal made a decade ago when the biggest Canadian ISPs – Bell, Shaw, Rogers, Quebercor (QMI), Telus and Cogeco – agreed with the music industry to perform such a function – for free. Under that deal, Telus, for instance, forwards an average of 75,000 notices every month on behalf of copyright claimants. The fact that ISPs have played such a role on behalf of copyright claimants is hidden in plain sight in their Terms of Service agreements.
The publishing, software and movie industries have been the most frequent users of the voluntary notice-and-notice regime in recent years, while the recorded music industries have moved on to pursue a bigger agenda since 2008: new laws that require ISPs, search companies (Google) and other digital intermediaries to block access to blacklisted URLs and for ISPs to cut the Internet connections of repeat infringers.
These approaches are known as the "graduated response" and "three-strikes" regimes. Lobby groups such as the Recording Industry Association of America and International Federation of Phonographic Industries have been incredibly successful in having them made into law in one country after another: Australia, Britain, France, Ireland, New Zealand and Taiwan, among others.
The agenda has not succeeded in the United States, however. The best they've done is get the biggest U.S. ISPs – Comcast, Verizon, AT&T, Time Warner, Cablevision, etc. – to sign a deal last summer with music companies (EMI, Sony, Universal, Warner) and Hollywood studios (Disney, Viacom, Time Warner, News Corp., Universal, Sony) that will see them take on the notice and notice procedures and possibly some additional measures voluntarily.
The agreement is colloquially known as the six-strikes-and-we'll-see approach because the higher-level deterrents bandied upon in public relations campaigns are seldom used in practice. Yet, online communication rights supporters lambasted even this limited role, and worry that the measures will be steadily ratcheted upwards under relentless pressure from the copyright industries.
The notice and notice regime contemplated by the Copyright Modernization Act is stricter than the U.S. approach, but not as punishing as the "three strikes" measures put into place in France, the U.K., New Zealand and Ireland, among others. C-11 is right to reject the three-strikes approach pushed by the recorded music industries. This also comports well with a recent UN Internet & Human Rights report that emphatically states that "cutting-off users from Internet access … on the grounds of violating intellectual property rights law … is disproportionate and … a violation of … the International Covenant on Civil and Political Rights."
Still, however, C-11 is problematic because it takes voluntary measures arrived at among a half-dozen or so incumbent telecom and cable companies and applies them to the rest of the 400-500 small ISPs that exist across Canada. The new law will force them to assume roles that most have rejected on privacy and freedom of expression grounds.
Second, the new bill mandates that all ISPs retain data on those targeted for notices for six months and to disclose the identity of Internet subscribers under court order. This is a new element introduced by C-11 over and above the current voluntary arrangements. The goal should be to minimize, rather to increase, the collection and retention of subscriber data by digital intermediaries.
Third, as the Chilling Effects Clearinghouse and the Electronic Frontier Foundation's Take-Down Hall of Shame illustrate, U.S. copyright claimants frequently launch claims based on broader assertions than the law permits. The chilling effect on free expression is considerable since many people simply stop whatever they were doing when sent a notice of alleged copyright infringement rather than wander on to uncertain terrain.
Copyright holders' opposition to new user rights will also likely result in them working very hard to define these rights as narrowly as possible. A legally mandated notice and notice regime will serve them well.
C-11 will not turn ISPs and other digital intermediaries into gatekeepers on its own. Yet, the last thing we need is to give Canada's vertically-integrated telecom-media-Internet conglomerates — Bell, Shaw, Rogers, QMI, Cogeco — more reasons to exert greater control over information flowing through their networks. They already discriminate in favour of their own services, and use deep-packet inspection technologies at very high levels relative to global standards (see here). Extending the notice and notice regime — plus new data retention and disclosure mechanisms — to all ISPs will only bolster the steady drift to network-centric models of control and perpetual copyright.
Seen in this context, digital locks are important but the possibility that notice and notice will become the law of the land deserves far more scrutiny than it has thus far seen.