Canada's copyright laws show Britain's digital legislation is no exception; (London) Guardian, 6/29/10

Cory Doctorow, (London) Guardian; Canada's copyright laws show Britain's digital legislation is no exception: It's not just our government that can be bullied into voting against the public interest by big content's power-brokers:

"A few months ago, Britain's archivists, educators, independent artists and technologists were up in arms over the digital economy bill, a dreadful piece of legislation that ignored all the independent experts' views on how to improve Britain's digital economy; instead, it further rewarded the slow-moving entertainment companies that refused to adapt to the changing marketplace and diverted even more public enforcement resources to shoring up their business-models.

The bill was passed despite enormous public outcry, without real parliamentary debate, in a largely empty house, hours before parliament dissolved for the election. Despite reassuring promises to their constituents, huge numbers of MPs just didn't bother to show up for work that day, allowing the bill to slip through (my own MP, Meg Hillier, sent me a letter to tell me that she was "concerned" that the bill was up for a vote without debate, but she voted for it anyway).

Well, here's some good news for Britons: you're not the only country whose laws are for sale to oligarchs from the entertainment industry. In my native Canada, a farce worthy of the worst moments of the Digital Economy Act is playing out even as I type these words.

Some background: there have been two recent attempts to reform Canadian copyright law. Both failed, due in large part to an unwillingness on the part of lawmakers to conduct public review or consultation on their proposals (though they were happy to have closed-door meetings with lobbyists representing offshore entertainment giants). The minority Tory government is now fielding a third attempt, called Bill C32 (Canadian bills have much less interesting names than their UK counterparts; here, we'd probably call it The Enhancement of Digital Life Through Extreme Punishments for Naughty Pirates Bill of 2010).

C32 follows the widest-ever public consultation on Canadian copyright. More than 8,300 Canadians filed comments in the consultation, and they spoke with near unanimity: "We don't want a US-style copyright regime."

The US's copyright law was last reformed in 1998, with the Digital Millennium Copyright Act (DMCA), which provided for near-total protection for "digital locks" (also called "DRM," "TPM," "copy prevention," "copy protection" – this explosion of names being the legacy of two decades' worth of attempts to rebrand an unpopular idea in the hopes of making it stick). In the US version of the law, breaking a digital lock is itself a crime – even if you're breaking it for a perfectly legitimate reason.

For example, Apple uses digital locks to make sure that the only programs you can run on your iPad and iPhone come from its own App Store. The App Store has lots of conditions on it that are ripe for competitive challenge – it scoops a hefty 30% commission from software creators, and imposes prudish conditions on the presentation of "adult" content (previously, Apple has rejected an ebook reader because it could be used to call up the Kama Sutra, a dictionary because it contained "naughty" words, the Pulitzer-winning political cartoons of Mark Fiore because they "ridiculed public figures" and a comic book adaptation of Joyce's Ulysses because you could see the characters' willies – in each case, they reversed themselves after public outcry).

But breaking the digital locks on your iPad so that you can buy apps from someone other than Apple is against the law – even though there is no copyright infringement taking place. Quite the contrary: marketplaces where creators exchange their works for money is the kind of thing you'd expect copyright law to encourage, rather than prohibit.

Nearly all of the respondents to the Canadian copyright consultation said that they didn't want to repeat America's 12-year-old mistake. Yes, they said, let us have protection for digital locks, but only if you're breaking them in order to commit an act of actual copyright infringement. Protecting the locks themselves is bad policy.

I was one of those Canadians. As a Canadian author (my latest novel, For the Win, is presently on the Canadian bestseller lists), I believe that I should have the major say in the destiny of my copyrighted works.

If I want to authorise a reader to break a digital lock to move her copies of my books from a Kindle to a competing ebook reader, that should be my call. Certainly, the mere act of putting my works into a digital locker shouldn't give a company the right to usurp my copyright: copyright protects authorship, not assembling electronics in Pacific Rim sweatshops.

Only 46 of the 8,306 commenters thought otherwise. These 46 commenters advocated replicating America's failed experiment in Canada; everyone else thought the idea was daft. You'd think that with numbers like 46:8260, the government would go with the majority, right? Wrong.

When minister of industry Tony Clement, and minister of heritage James Moore, published the text of their long-awaited copyright bill, Canadians were floored to discover that the ministers had replicated the American approach to digital locks. Actually, they made it worse – the Americans conduct triennial hearings on proposed exemptions to the rule; Moore and Clement didn't bother with even this tiny safeguard.

The ministers have been incapable of explaining the discrepancy. When confronted on it, they inevitably point to the fact that their bill also establishes numerous "user rights" for everyday Canadians (for example, the right to record a TV show in order to watch it later), and suggest that this is the "balance" that Canadians asked for. When critics say, "Yes, you've created some user rights, but if a digital lock prevents their exercise, it's against the law to break the lock, right?" the ministers squirm and change the subject.

It's enough to leave you wondering whether the ministers understand their own bill. Indeed, Clement recently appeared on the public broadcaster TVOntario show Search Engine and promised that his law allows journalists to break a digital lock for the purposes of investigative reporting (according to lawyers, scholars and everyone else who's read the bill, he's wrong).

If they don't understand their bill, perhaps it's because they weren't really in charge of what went into it. According to the former head of staff for minister of foreign affairs Maxime Bernier: "The prime minister's office's position was, move quickly, satisfy the US; we don't care what you do, as long as the US is satisfied."

It's clear the US government has made a top priority out of ensuring other countries cut their throats just as stupidly as America did with the DMCA's digital locks rules. Last week, the Obama administration's newly minted IP enforcement czar, Victoria Espinel, reiterated America's priority to use its trade muscle to force countries into adopting US-style copyright rules.

American industry is pleased by this. A shadowy new Canadian "citizens' group", Balanced Copyright For Canada, looks to be the work of the big-four labels, with a membership composed of employees and executives of the labels' Canadian subsidiaries (the membership lists were taken offline hastily after this was publicised).

Moore seems to be cracking under the strain of supporting the unsupportable. He has publicly denounced opponents of his bill as "radical extremists" (these "extremists" include the Canadian Bookseller Association, the Retail Council of Canada, the Canadian Library Association, the Association of Universities and Colleges of Canada and MPs from all the other parties). He then denied having made the remarks, blocked voters from following him on Twitter when they asked him about it, and has remained silent on the subject since videos of him making the remarks surfaced.

So, Britain, rejoice. It's not just our government that can be bullied into voting against the public interest by big content's power-brokers – Canada's just as weak and pitiful."

http://www.guardian.co.uk/technology/2010/jun/29/canada-copyright-digital-economy