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Bill C-61 Fails Green Copyright Test

By Michael Geist

The environment is obviously one of the biggest issues of the moment. The federal political parties are spending their summers trying to sell Canadians on their plans for the future, provincial governments are unveiling regulations to address waste, and local municipalities are getting into the game with increasingly sophisticated recycling programs.  As our environmental policies move far beyond establishing emissions standards or clean-up requirements, law and regulation is increasingly focused on creating incentives for business to reduce polluting activities and for consumers to adopt environmentally-friendly habits.  

Given the desire to re-orient longstanding practices, laws not traditionally considered part of the environmental file should also be examined to determine whether they are consistent with promoting "greener" behaviour.  In fact, Parliament recently passed a new law that tries to embed sustainable development into government policy.  My weekly technology law column (Toronto Star version, homepage version) acknowledes that the notion of "green copyright" sounds odd, yet the policy choices found in Bill C-61 disappointingly run directly counter to the current emphasis on the environment.

For example, Canadians trash an estimated 184,000 tonnes of old computers, cell phones, and printer cartridges each year, with many of these items containing potentially hazardous materials such as mercury and lead. In response, the Ontario government recently proposed a new electronic waste fee on consumer electronics to encourage the recycling of older devices. Despite attempts to reduce e-waste, Bill C-61 establishes new barriers to the reuse of electronics.  If enacted into law, it would prohibit the unlocking of cellphones, forcing many consumers to junk their phones when they switch carriers (there are an estimated 500 million unused cellphones in the U.S. alone). Similarly, the U.S. version of Bill C-61 has resulted in lawsuits over the legality of companies that offer to recycle printer ink cartridges.  In one lawsuit, Lexmark sued a company that offered recycled cartridge and though it ultimately lost the case, the lawsuit created a strong chill for companies set to enter that marketplace.

Bill C-61 also creates new barriers in the race toward network-based computing, which forms part of the ICT industry’s response to the fact that it accounts for more carbon emissions than the airline industry. Network-based computing - often referred to as "cloud computing" - benefits from the efficiencies provided by large computer server farms that are often situated in close proximity to clean energy sources.  Network experts argue that Canada could parlay its high-speed optical networks and environmental advantages in the north to become a global cloud computing leader with zero carbon emissions, yet the new copyright bill now stands in the way.  

The bill prohibits companies from taking advantage of cloud computing to offer network-based video recording services (as are offered by some U.S. based providers).  It also stops consumers from shifting their music, videos, and other content to network-based computers, limiting these new rights to devices physically owned by the consumer.  In fact, the bill even blocks consumers from using network-based computer backup services - such as the MobileMe service just introduced by Apple - since multiple personal copies of purchased songs or videos is forbidden.

Canadian politicians entered the summer recess expecting to get an earful about the environment from their constituents.  To the surprise of many, the digital environment has joined the physical environment as one of the hot button issues of the summer. Sources indicate that Industry Minister Jim Prentice received over 20,000 letters criticizing Bill C-61 within weeks of its introduction. Local Members of Parliament such as Conservative Bruce Stanton (Simcoe North) and Liberal Sukh Dhaliwal (Newton-North Delta) have scheduled town hall meetings on copyright in response to constituent concerns, while author and broadcaster Tom King, an NDP candidate in the forthcoming Guelph by-election, has emphasized copyright as a key campaign issue. As Canadians express concern over both their physical and digital environments, many may begin to link the issues by advocating for a greener copyright bill.

Full post as published by Michael Geist on July 21, 2008 (boomark / email).