Concrete examples of how the Canadian DMCA would impact everyday activities

How will the Canadian DMCA impact the activities of everyday Canadians? This is a common question, and to answer it Michael Geist has written a series of 5 posts describing exactly how a regular Canadian family will be affected by the Canadian DMCA.

Jim and Josee live in a Calgary suburb together with their three children Stephen (age 16), Rona (age 10), and Diane (age 4). Jim is the chief librarian at the National Energy Library, while Josee teaches media and communications at a local high school.

The first post in the series focuses on Jim:

Soon after he arrives into the office on Monday morning, he is contacted by a researcher located in the field who asks him to track down an article and to email an electronic copy as soon as possible. Jim finds the article, scans and sends it via email. After work, he drops into the local HMV and purchases a DVD copy of the movie Juno. At home, he transfers a copy of the movie to his video iPod for viewing on an upcoming business trip.

If the Canadian DMCA becomes law, all of Jim’s copying activities arguably violate the law.

Jim’s act of scanning and distribution of the article should qualify as fair dealing.

Apparently the government thinks it does not, however, since Bill C-61 contains a specific provision to allow librarians to digitize a paper copy on behalf of a patron. That provision only works if they take steps to ensure that the recipient does not transfer the digital copy to anyone else and only uses it for five days. Since those technical restrictions were not imposed on the researcher, this would not qualify (Section 30.2(5.01)). The ripping of the Juno DVD to the video iPod clearly violates the law. Prentice’s format shifting provisions are limited to videocassettes – DVDs are off-limits (Section 29.21). Moreover, ripping the DVD likely required circumventing anti-copying technologies, which under Bill C-61, would violate the law.

The second post focuses on Rona:

Rona is a huge American Idol fan, faithfully watching each episode and buying CDs released by former contestants with her savings. Last January, Jim set the family’s PVR to tape and retain each episode to allow Rona to watch how the contestants progressed. That night, Rona records an Internet-only broadcast of American Idol highlights on her personal computer. She also asks her brother Stephen to transfer songs from her newest CD to her computer. The CD is copy-protected, but Stephen uses a circumvention program to transfer the music files.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 gives Canadians the right to record television shows with their PVR. However, the recordings may only be kept long enough to allow for the program to be viewed at a more convenient time. By retaining copies of earlier programs, Rona (or Jim) is likely violating the law. (Section 29.23 (1)(d)).

Rona’s recording of an Internet broadcast also violates the law. Bill C-61 explicitly prohibits recording Internet-only broadcasts (Section 29.23 (3)).

The copying of the music files also violates the law. The act of circumventing the copy-controls on the CD violate Bill C-61 (Section 41.1). Moreover, the much-promoted provision to allow users to transfer their music onto their device of choice doesn’t apply either, since one of the conditions is that users cannot circumvent a digital lock as part of the music transfer process (Section 20.22(1)(c).

The third post focuses Josee:

In the morning, Josee teaches a class on media in the digital world. The class is conducted in a distance-learning classroom and includes both her students and students from a school in Edmonton using Alberta’s SuperNet network. This is the second year that she has run the course and she is using the same lessons, which include extensive copies of articles for course materials. In the afternoon, Josee teaches a communications class, making use of a website that features a copyright and an “all rights reserved” notice. A student in the class presents a research assignment that features short excerpts from a DVD copy of the movie Broadcast News and passages that are cut-and-pasted from an electronic book that contains a digital lock. Josee is a big Calgary Flames fan. The Flames are playing that night with the game broadcast on pay-per-view. Josee has a dinner commitment, but decides to buy the game and record it with her PVR to watch when she gets home.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 purports to promote the use of distance learning by permitting the communication of copyright works for educational or training purposes (Section 30.01(3)), yet a subsequent provision (Section 30.01(5)(a)) requires teachers to destroy the lesson within 30 days of the end of the course. Since Josee is reusing the same materials without having destroyed them, the course materials do not qualify for the exception.

Bill C-61 also purports to allow Josee to use the Internet and websites in her class. While she can arguably do so without this exception, some educational lobby groups pushed hard for an explicit exception. However, since the site includes the words “all rights reserved,” it does not qualify for the exception. (Section 30.04 (4)(b))

The student presentation may involve at least two incidents of infringement. Obtaining clips from the DVD would require the circumvention of the DVD copy-protection. Although the underlying use may be permitted under fair dealing, Bill C-61 makes the mere act of circumvention a violation of the law. (Section 41.1) Moreover, if the electronic book contained copy-protection, the circumvention to cut and paste select passages would violate the same provision.

Josee concludes her day with the possibility of yet more copyright infringement. Bill C-61’s time shifting provisions do not apply to video on demand (such as a pay-per-view broadcast) if there are restrictions on copying. Recording the game may therefore violate the law. Moreover, if there is a copy-restriction on the broadcast, attempts to circumvent the restrictions would violate Bill C-61′a anti-circumvention provisions.

The fourth post focuses on Diane.

Diane, who is four years old, is a huge fan of the popular TV character Dora the Explorer. For her birthday, she received four Dora DVDs. Given Diane’s habit of scratching them, her dad has begun to create backup versions. That day, Diane brings home her kindergarten class photo, which was taken by a local photographer. Josee digitizes the photo and sends a copy to Diane’s grandmother.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 does not allow users to make backup copies of DVDs. The act of backing up the DVD is an infringement. Moreover, in order to make the backup copy, users must typically circumvent the copy-protection on the DVD, also an act of infringement.

For decades, Canadian copyright law has vested copyright in commissioned photographs – like school photographs – in the person who commissions the photo. Bill C-61 reverses that practice so that copyright now belongs to the photographer. (repeal of Section 13.2) Assuming the photograph came with an all rights reserved restriction, the act of distributing the digitized photo to Diane’s grandmother now violates the law. (Section 29.21 (1)(e))

The fifth post focuses on Stephen:

Stephen is a big music fan. Tonight, he is going with his girlfriend to see his favourite band in concert. He has purchased every CD issued by the band. To get ready for concert, he downloads a live version of one of his favourite songs that was released commercially in Europe (it is not available in Canada) that he finds on a file-sharing network. The song is downloaded to an external hard drive that he uses to store his music. While on the network, one hundred songs on the hard drive were available in his shared folder for others to download, though none were. At his girlfriend’s request, he also copies three of the band’s best songs onto a CD to play during the drive to the concert. He gives the CD to his girlfriend as a gift.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activity – with one exception – would arguably violate the law.

Stephen’s download of a live version of a song arguably does not violate the law since the copy was completed for personal, non-commercial purposes on a medium that could be subject to the private copying levy. As such, the copy may be a legal private copy.

Making available one hundred songs to the file sharing network for others to download, however briefly, raises the prospect of significant liability. The much-discussed $500 personal download damage award does not apply here. Instead, Stephen faces up to $20,000 per infringement or up to $2 million dollars despite the fact that there was no evidence that anyone downloaded anything from his computer.

Copying three songs to a CD for his girlfriend is also likely a violation of the law. The copies were not personal copies and thus do not qualify for the private copying right. Bill C-61 allows users to shift their music to other devices or medium, but they are not permitted to give away the copy (Section 29.22 (1)(e)).

While Minister Jim Prentice clings to the talking point that this is a ‘balanced‘ bill the examples above make it abundantly clear that the Canadian DMCA is nothing of the sort

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