Unlocking Bill C-11: what are digital locks, and why should you care?

JANE LYTVYNENKO
The Fulcrum (University of Ottawa)

OTTAWA (CUP) — Kathleen Simmons, owner of Van Loon Simmons, a law firm specializing in copyright, broadcasting, and government law and policy, has been at the forefront of the Bill C-11 debate, advocating on behalf of the Canadian Association of Broadcasters.

“From the broadcasters’ position, this bill is hugely important,” said Simmons, a graduate of the University of Ottawa’s law school. “And it’s not just the broadcasters — virtually everybody who has said anything about this bill said, ‘Thank you for introducing legislation.’”

Simmons said copyright laws in Canada were last updated to accommodate cassette tapes. With new technologies, especially the Internet, copyright laws need to be more expansive and adapt to modern times.

“What used to be a traditional spectrum of creators on one side and users on the other side is not quite as black and white as that,” she said. “User-generated content mixes and lines are blurred.

“I think that it’s safe to say that it’s essential that we get some kind of copyright reform right now,” Simmons added. “I think this particular bill is much better than the last couple of bills than we’ve seen. It really achieves a lot more balance.”

Jason Kee, director of policy and legal affairs at Entertainment Software Association of Canada, agrees the bill is a step in the right direction.

“Overall, we are generally supportive of the bill,” said Kee. “It will improve the current situation with respect to copyright in Canada and overall piracy in Canada.

“Bill C-11 is an attempt to deal with several interests that prevail that have to come up with a balanced approach and we feel like it’s done that,” he added. “It does so by providing technological protection measures — the so-called digital locks — to protect copyrighted works as well as offers a new course of action that will actually allow rights holders to pursue legal action.”

Digital locks

Digital locks are put on content to prevent illegal copies from being made, making it more difficult for the user to rip content off CDs, DVDs, or to download certain items more than a set number of times. Bill C-11 suggests breaking digital locks should be made illegal, but puts their use up to the discretion of content providers.

“What’s in C-11 right now is, basically, if there’s a digital lock, you can’t break it,” said Simmons. “That is probably the biggest problem with this legislation — the very heavy-handed approach the government has taken to digital locks.”

The implementation of digital locks is not a new concept. Kee said the gaming and other entertainment industries have always used them to prevent piracy, which costs the gaming industry alone an estimated $3.5 billion globally each year.

“The challenge we’ve had in Canada is the absence of legal protection for digital locks,” said Kee. “Even though it’s illegal to break them in many other countries — including the United States and most European countries — because it’s perfectly legal here, the guys who use the tools to break the locks are based in Canada.”

Simmons said the problem with making breaking digital locks illegal is users can’t use the locked content with regard to the fair dealing policy — using content for personal means and not as a means of illegal redistribution.

“There’s a very simple solution being advocated to make [digital locks] something that makes sense, which is to tie the anti-circumvention provisions to infringement,” said Simmons. “If you’re breaking a digital lock with the intention of … using things that allow you to put your DVD on your computer as a back-up, then it should be permitted.”

Both Simmons and Kee are unsure of whether the government will make any major changes to the bill.

“I’d be surprised if we see any amendments that are of any significance simply because the government has made it very clear they’re not going to entertain those,” said Kee. “Because the government has a majority, they will only put forward the amendments they see as correct.”

Bill C-11 versus SOPA

The United States government recently introduced a controversial piece of legislation aimed at fighting copyright infringement through Internet regulation. The Stop Online Piracy Act (SOPA) was created to eliminate pirated online content — particularly on foreign sites — and allow for legal action against websites found violating copyright regulations.

Open Media, an organization fighting for consumer rights on media regulation issues, has mobilized Canadians to sign a petition against Bill C-11 for the fear of it becoming a Canadian version of SOPA.

“This bill is a sad thing for communication,” said Lindsey Pinto, media relations manager at Open Media. “What we’re the most concerned about is the potential for SOPA-like provisions to be put in. We’re concerned it would lead to things like blocking websites.”

Pinto said about 30,000 people already signed the online petition, adding some people also organized protests against the bill across the country. Though not as strong as the backlash against SOPA — Americans took to the streets while websites, including Wikipedia, cut off service for 24 hours to protest SOPA — Bill C-11 has been met with resistance.

Both Kee and Simmons agree Bill C-11 and SOPA are two different pieces of legislation.

“It’s important to realize that C-11 is not remotely comparable to SOPA — what they were about was making something illegal, they were about providing remedies,” said Kee. “C-11 deals with domestic issues [and] doesn’t include any remedies. There are no comparisons between the two regimes.”

Kee believes that some discussions around the bill are based on innacurate information. “Some people don’t have a full appreciation of what’s in the bill and are getting mad,” he said.

Simmons said although the Conservative government can still make revisions to the bill, she doubts anything as drastic as SOPA will be introduced.

“I don’t know how real the threat is,” said Simmons about the potential last-minute revisions. “We should always be concerned that big media will do what they can to protect their legacy business model.

“They’re not adjusted well to the Internet age, so there’s a real possibility they will use the digital locks to the detriment of consumers — and if consumers have a problem with that, they should certainly be voicing that.”

Pinto echoed Simmons’s statement, saying even if the chances of drastic changes to C-11 are low, consumers should make their opinion on the issue known.

“If we can all come together and tell the government what we want to see, I imagine the government will be forced to listen,” said Pinto. “We need to galvanize the public and make sure their voices are heard.”


Graphic: Mico Mazza/The Fulcrum