Copyright bill may spark battle over who owns what

With new copyright legislation set to hit the House of Commons, possibly next week, a fresh round of controversy over who owns what is starting to heat up.

The new bill, which the government has confirmed will be tabled soon, will aim to provide a much-needed update to Canadian copyright for the digital age. While Heritage Minister James Moore has been tight-lipped on what the bill will contain, leaks have indicated that it will put forward tough anti-circumvention provisions, or rules that will prevent people from breaking the digital locks placed on electronic devices and content.

The debate over these locks, known variously as technology protection measures (TPM) or digital rights management (DRM), has been raging since the previous Liberal government's attempt at overhauling copyright with Bill C-60 in 2005. That bill, which died following the dissolution of Parliament in the fall of 2005, kicked off criticism that the government was favouring copyright holders over consumers by making it illegal to crack DRM.

Bill C-61, proposed by the Conservative government in 2008 — which also died when Parliament was prorogued — reignited the argument by proposing similar provisions. Critics said the anti-circumvention rules would criminalize the ordinary behaviour of millions of Canadians, such as copying a CD onto an iPod or recording a television program for later viewing.

In a recent opinion piece in IT World, Russell McOrmond, policy co-ordinator for the Canadian Association for Open Source, fired the latest salvo in the debate when he wrote that DRM infringes on a consumer's property rights. He said that when a device or content manufacturer offers up a cellphone or a DVD with DRM on it, the company is actually renting the product rather than selling it.

"It is obvious that if I own something … it is me and not someone else that maintains the keys for any locks applied to what I own," he wrote. "Non-owner locks on technology are based on the idea that the manufacturer of the device, not the owner, should control who has keys to the locks they have applied."

Backing digital locks up with laws — particularly on devices — would be a major mistake, McOrmond said in an interview, as such rules could trump peoples' property rights.

"It's clearly our property, we clearly bought it. There shouldn't be any debates over who should control the keys to property that is locked," he says. "There are a lot of lawyers who think that when it comes to devices, property laws don't matter."

Ownership versus renting

The issue is not that simple, intellectual property lawyers say, especially when it comes to content. Barry Sookman, an IP lawyer at McCarthy Tétrault in Toronto, says that when a consumer buys a DVD, they are paying for the right to watch it, not to copy it.

"It's a bargain [between the buyer and seller]. It's saying, 'I'll give it to you to use in all of these ways, but I'm not giving it to you to start using in other ways because there is a detrimental economic effect,'" he says. "It's hard for people to say their property rights are being violated when the property they're buying has those exact set of characteristics."

Sookman says that just because a consumer can technically copy content, they don't necessarily get the right to do so when buying it, the same way that purchasing a hard copy of a book doesn't give a person the right to steal the audio or e-book version.

"Just because you can do it doesn't mean you've paid the economic right to do it," he says. "There's a separate amount that needs to be paid in order to do it."

'Just because you can do it doesn't mean you've paid the economic right to do it.' —IP lawyer Barry Sookman

Other copyright lawyers feel middle-ground needs to be found. While technically every copy made of a piece of digital content is potentially a lost sale for the copyright holder, in reality there must be some leeway, says David Kent, an IP lawyer at McMillan in Toronto.

"There is an argument to be made that part of the commercial deal between the public and the originators is that you can make a second copy for yourself so long as you're not doing the originator out of a sale," he says. "There you're probably not screwing up the economics of the business."

Such a compromise was the point of the private copying levy, a small tax added to blank media such as CDs and DVDs in 1997, Kent says. The levy was a "social contract" designed to compensate copyright holders for copies being made of their works by the public. The contract effectively legalized copying and has worked well, but the current surfeit of devices that can copy content means it has to be adjusted and updated somehow, he says.

In March, NDP MP Charlie Angus proposed in a private member's bill that the levy be extended to devices such as iPods and computers, which would put the debate over circumvention and copying to rest. The government immediately dismissed the idea while copyright experts said it could create new problems. Raising the costs of devices could, for example, push people to buy electronics in the United States.

"I happen to buy all the music I have on my iPod at home because I believe in paying for it, so if I pay for it, I shouldn't have to pay a levy as well," Kent says. "The economics are horrible on [Angus's plan] and you have to worry about driving people to behaviour that you're not trying to drive them to."

Some copyright experts argue that the market is taking care of itself when it comes to the public's demand for digital copies of content. DVD makers are, for example, already packaging digital copies of films with the actual disc sale, Sookman says.

Devices getting locked down

Others, however, believe things are getting worse, with device makers – particularly Apple – pushing toward locking things down even more. McOrmond says Apple's recently released iPad, which gives the company tight control over what consumers can and can't put on it, should be illegal.

"The general public doesn't think of the iPad as a device where someone other than the owner has the keys to it," he says. "They haven't thought, 'Why is this allowed?' They just think, 'Oh, it's a cool device.'"

Seth Schoen, a senior staff technologist with the Electronic Frontier Foundation in San Francisco, is also concerned by the amount of control device makers such as Apple and Amazon are inserting into their products through DRM. Last year, Amazon remotely deleted several e-books — ironically George Orwell's 1984 among them — from the Kindle devices of customers who had bought them.

Amazon said it deleted the books because someone who did not have the rights had uploaded them to its store, but customers were furious nonetheless.

"That underscored things and was something that DRM critics had predicted for some time," Schoen says. "These trends are very scary."

The EFF says DRM on devices, backed up by U.S. copyright law — the 1998 Digital Millennium Copyright Act — has held back innovation and competition. Portable music players arose before the DMCA really took hold, Schoen says, because manufacturers and consumers were allowed to experiment with unlocked devices and content. The iPod, for example, never would have existed if DRM had prevented people from ripping CDs to their computers.

Similar video players have not happened, he says, because DVDs arrived in a post-DMCA world, where copyright law backs the copy protection put on discs.

Inversely, Sookman says the DMCA has helped innovation. By protecting DRM, U.S. laws have made possible online services such as Rhapsody, where subscribers pay a monthly fee to listen to music. If Rhapsody's service wasn't locked, a user could pay for one month of access and then use it for free afterward, which would eliminate the entire business case for the site.

The idea was the same with Canada's previous attempts at copyright reform, he says.

"The policy behind the DMCA was to prevent the circumvention of access control [measures] to let services [like Rhapsody] be introduced and to thrive," Sookman says. "That was exactly what Bill C-61's model was."

But DRM critics fear that anti-circumvention rules will lead to a dystopian future where device manufacturers get to decide which content does and doesn't work on their devices. The device manufacturers and content industries meet regularly and have agreed that consumer expectations are malleable, Schoen says, and they are working together to change sentiment over the long term.

"People who grew up with things that could easily record [content] may think that's perfectly normal and obvious and appropriate, and that it's disturbing that someone would try to take that away," he says. "But maybe people who don't grow up with a record button won't think that's strange. They won't miss it."