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The Bloc on C-32: Only Consumers Suffer Frustration From Digital Locks

By Michael Geist

After a post on the Bloc's position on three strikes, I was contacted by Bloc Heritage critic MP Carole Lavallée, who wanted to clarify her position on the government's copyright bill.  She provided a detailed response that argues that three strikes is worth considering and expressess doubt about the value of placing digital locks at the foundation of the new copyright bill. Lavallée notes that digital locks do little for creators and create considerable harm and frustration for consumers.  She adds that WIPO is an obsolete approach, advocating instead for the introduction of a levy system.

It should be noted that this suggests that all three opposition parties have now expressed concern with C-32's digital lock provisions. The NDP have been outspoken in their opposition and Liberal critic Marc Garneau has indicated that the bill is missing an exception to allow consumers to break locks for private, non-commercial purposes.  With the Bloc now stating that locks are not a solution, the minority Conservatives will need to find a compromise in order to pass the bill.

Her full response - posted with permission - is below:


The Bloc Québécois will analyze the bill within the framework of four principles:

- paying artists for their work;
- encouraging the distribution of their works on all platforms;
- severely punishing professional pirates to deter their activities;
- promoting public awareness and understanding of copyright.
 
Graduated response?
 
For example, graduated response is an approach that seems consistent with the Bloc Québécois's desire to see professional pirates severely punished and to discourage wrongdoers who do not know the law. France and England have already adopted those two measures (with some differences in enforcement). It's worth looking at that more closely.
 
Can we achieve the same goal with some other measure? Are there preventive measures that would achieve the same goals? 
 
At first glance, the 'notice on notice' in Bill C-32 does not appear to be enough, since it assigns no responsibility to the ISPs and places the burden of proof (and investigation) on the creators.
 
What about the digital lock?

I realize that the digital lock is part of a WIPO treaty (1997) that Canada wants to implement as it promised to do. However, making it the centrepiece of this bill, its principal defence against piracy, is a leap that only a Conservative government (fond of punitive measures) could happily make.
 
My main question is 'Is it effective?', and if so, 'Against whom?'
 
Good common sense tells us that nothing will stop the professional pirates, who have all the tools to break the protective measures. In addition, it's probably not too difficult to circumvent the lock; there are probably applications available on the Internet that can successfully pick the lock.  There is also probably no way of knowing whether an individual has broken a lock to make a private copy.  So what good is it? Who is it stopping? Even well-known journalist Don Martin announced in his June 8 column that he would break the digital lock on Pink Floyd's next release format. 'Having now acquired Dark Side of the Moon in five formats – LP, cassette, CD, DVD and MP3 file – this consumer has given Pink Floyd enough of his music money. When the next format comes along, lock or no digital lock, I'm stealing it.'  File-sharing legislation brings some order, The Windsor Star, Editorial/Opinion, page A6, published 2010-06-08. And it will be next to impossible to find evidence of it and prosecute; Industry Canada officials made that clear in a public briefing.
 
Only the honest consumer will suffer the frustration of digital locks.
 
Speaking of consumers, the Canadian Consumer Initiative The Canadian Consumer Initiative is a coalition of four consumer associations: the Public Interest Advocacy Centre, the Consumers Council of Canada, Option consommateurs  and the Union des consommateurs. considers the digital lock a punitive approach that has proven ineffective in other parts of the world, and it believes that the entertainment industry will now be able to restrict or even nullify the rights of consumers.
 
In short, the digital lock would probably be ineffective against the professional serial copiers and scoundrels covered by the bill, and it would probably be immensely frustrating for the honest consumer. And it would contribute to the labelling of a 12-year-old scallywag as a delinquent.
 
And again, it places the burden of proof (and investigation) on the creators.
 
Modernize the law?

The Conservatives say they want to modernize the law, but they are introducing an obsolete system (the WIPO treaty was signed in 1997). If they were serious about modernizing the law, why didn't they add to the part on private copying the few words that would allow the collection of levies on the sale of digital audio recording devices? If the current law is not amended, artist royalties will quietly expire in about 20 months. The $180 million that have been paid out to artists over the last 11 years will vanish from their pockets. In the end, it is consumers who will be deprived of new works of art.
 
Instead, artists will have to track down the professional offenders, the small-time crooks and those who are down on their luck, do their own investigation to find the guilty parties, collect evidence, send out legal notices, and spend money on legal fees rather than create and make money with their art.  Creators as a result have to do a 'Claude Robinson'.
 
These so-called protective measures thwart the wishes of creators to have their works distributed on all platforms and the wishes of consumers to be able to copy them legally into various formats.  If I may say so, it's like giving a young married couple a chastity belt.
 
Lastly, the digital lock is in no way consistent with the Bloc's principles: it doesn't help artists get paid, promote the distribution of their works on various platforms, or stop professional piracy.
 
I understand why a copyright act would contain a provision making it illegal to circumvent a lock if an artist chose to protect himself that way. However, a few questions come to mind: Is the lock really effective? Can it really serve as the backbone of a copyright bill (without any other form of support or protection for artists)?  Shouldn't it be just a secondary measure in a copyright policy?

Full post as published by Michael Geist on June 17, 2010 (boomark / email).