June 26, 2006

Canadian anti-DRM coalition makes timely debut

Author: Bruce Byfield

A coalition of public interest groups and academic privacy experts has released a public letter and background paper to the Canadian government stating their concerns about digital rights management (DRM) technologies and their legal status. The coalition has also started a Web site, IntellectualPrivacy.ca, to coordinate its efforts.

We talked to representatives of two coalition members about the status of DRM in Canada: David Fewer, staff counsel at the Canadian Internet Policy and Public Interest Clinic (CIPPIC), Canada's leading legal technology law clinic, and Evan Leibovitch and Russell McOrmond of CLUE, an open source advocacy group.

The public letter was sent to Bev Oda, Minister of Canadian Heritage, and Maxime Bernier, Minister of Industry, the two cabinet members whose departments traditionally have been associated with copyright issues in Canada. In addition to CIPPIC and CLUE, signatories included public interest organizations such as the BC Civil Liberties Association and Online Rights Canada; groups that might be affected by DRM laws, such as the Canadian Federation of Students and the Canadian Library Association; and leading experts such as Bruce Phillips, the former Privacy Commissioner of Canada, and Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa.

In the letter, the coalition expressed concern about the legal ramifications of DRM and offered to work with the government to ensure that any legislation would be compatible with existing privacy and copyright laws in Canada. In addition, the letter sought assurances from the ministers that any legislation "will create no negative privacy impact" and "will include pro-active privacy protections that, for example, enshrine the rights of Canadians to access and enjoy copyright works anonymously and in private." The rationale for this statement is expressed in a background paper, which explains the issues with DRM technologies and the possible effects of "anti-circumvention legislation" on a number of different groups, including Internet providers and consumers. All in all, the letter was a thorough summary of the issues -- and couldn't have come at a better time.

The legal climate in Canada

DRM and copyright issues are much the same in Canada as in the United States. In both countries, the movie and music recording industries and distributors such as Microsoft and Apple are actively promoting DRM. The names may be different -- for example, Canada has the Canadian Motion Pictures Distributors Association instead of the Motion Picture Association of America, and the Canadian Alliance Against Software Theft rather than the Business Software Alliance -- but the positions and arguments are much the same. Similarly, like the United States, Canada would be affected by the World Intellectual Property Organization's (WIPO) proposed treaty on the protection of broadcasters that is currently being drafted, which would consider DRM a reasonable exception to existing copyright and privacy laws.

However, the resistance to DRM laws in Canada enjoys several advantages. To start with, according to both CIPPIC and CLUE, the legal situation is much less favorable for DRM in Canada than in the United States. Canada has never had an equivalent of the American Digital Millennium Rights Copyright Act, which implements the WIPO Copyright and Performances and Phonograms Treaties Implementation Act, and provides strong protection to copyright holders which legally justifies DRM-like technologies.

Similar legislation has been under consideration in Canada since 2001, as McOrmond points out. However, those who, like McOrmond, were consulted in the process had the chance to learn from the American experience, and the drafting of the legislation proceeded much more slowly than in the United States. Bill C-60, a DMCA-like piece of legislation, did receive first reading in the Canadian House of Commons on June 20, 2005, but was tabled with the fall of the Liberal minority government several months later.

Because Bill C-60 failed to pass, Canada's current laws provide at least two strong objections to DRM. First, under Canada's Copyright Act, copyright holders are entitled to a levy to compensate for loss of income due to copying technologies such as recordable CDs and DVDs. It is this provision that allows Canadian music collectors to legally make backup copies. Since the act contains this provision, any group would probably have a hard time claiming that DRM is needed to prevent loss of income. A dissatisfied vendor or lobby group would most likely have better luck increasing a levy, or lobbying to alter how the audits are done that determine how a levy is distributed.

Secondly, Canada's Personal Information and Electronic Document Act includes stronger protection of personal information than exists in the United States. This law explicitly defines how personal information collected by non-government organizations -- the type of information that many fear will be collected by DRM -- is handled. Among other provisions, this information must be gathered only with consent, used only for the reasons it was gathered, collected for a reasonable purpose, and store securely. At least in theory, any DRM legislation could be mitigated by having to comply with these provisions. Not only that, but any specific implementation of DRM might become the object of a complaint to Canada's Privacy Commissioner.

In practice, DRM legislation could be specifically exempted from these laws. All the same, the existing laws do seem to provide strong legal defence against DRM in Canada.

The chance to start again

"The emergence of C-60, and the lack of full stakeholder involvement in its development, was a wake-up call," Leibovitch says. With the change of government that destroyed the bill, anti-DRM lobbyists have had a chance to start their efforts again.

They do so in a public and political climate that is suddenly much more hopeful. Public perception of the issue has recently been altered by the announcement of the Canadian Music Creators' Coalition (CMCA). Consisting of some of Canada's leading musicians, including Barenaked Ladies, Avril Lavigne, and Sarah McLachlan, the CMCA recently sent its own letter to Oda and Bernier.

In the letter, the CMCA strongly opposed DRM. "Artists do not want to sue music fans," the CMCA stated in its letter. "The labels have been suing our fans against our will, and laws enabling these suits cannot be justified in our names." The letter went on to suggest that DRM -- or digital locks, as it called the technologies -- are not in the best interest of consumers, and called upon the government to consider other means to help promote Canadian artists. Coming from one of the groups that DRM is supposed to protect, the letter was a clear and public denouncement. Implicitly, it suggested that DRM served corporate and non-Canadian interests, and no one else's.

This increasingly hostile public reaction to DRM comes at a time when the new Conservative minority government in Canada is just starting to formulate its policies on issues related to DRM. Although Fewer states that the government has been consulting on the issues informally since it took office in February, formal consultation seems to have started only on June 13, when Oda publicly called on the Canadian Radio-television and Telecommunications Commission, the government body that regulates broadcasting and telecommunications, for input on the effects of digital technologies.

"We anticipate," Fewer says, "that this government is going to try to put itself in the position to put together a bill, perhaps in the fall, perhaps later. This is a minority government, so probably it doesn't have a long life, but, regardless of whether it's this government or the next government, we do anticipate that we're going to see copyright legislation, likely in the near term."

Asked whether the legislation would resemble the discarded Bill C-60, Fewer replied, "We expect it to address the same issues. It remains to be seen whether it follows the C-60 route."

In the attempts to anticipate the current government's approach to DRM-related issues, the IntellectualPrivacy.ca coalition is scrutinizing the cabinet ministers involved. "Maxime [Bernier]," McOrmond notes, "is an unknown, without much history," since he was elected for the first time in February.

By contrast, both Fewer and McOrmond see reason to hope that Oda will be more receptive to their concerns than the previous Heritage Minister. "Bev Oda is a former Heritage critic [the member of the opposition in charge of critiquing the ministry], so she has the copyright file in front of her, and she has long and strong ties to the broadcasting community -- which we regard as somewhat hopeful, because that would suggest that she would be somewhat resistant to the sometimes strident rhetoric employed by copyright absolutists," Fewer says.

McOrmond agrees. "I met with Bev Oda when she was still the Heritage Critic," he says. "She was far more open-minded about the diversity of constituencies in copyright than her Liberal counterparts."

To date, neither Bernier or Oda have indicated any clear predisposition on such matters. However, regardless of their opinions, Fewer emphasizes that the time to lobby the government is now. "If we're raising our concerns for the first time when a bill goes to committee, it's too late. We need to educate the government on what the issues are."

"The government," Fewer says, "operates on a stakeholder basis. It relies on stakeholders to come forward and state their concerns. If no stakeholders do, or if the concerns they hear are disproportionately one-sided, government policy may reflect one side of the debate that they've heard."

Pro-DRM lobbyists evidently feel the same way. On his blog, Michael Geist, one of the founders of CIPPIC, recently revealed that David Dyer, a registered lobbyist for the Canadian Recording Industry Association, has been holding private meetings with members of the Heritage ministry and introducing them to pro-DRM representatives almost since the current government took office.

Differing opinions in the coalition

As a coalition, IntellectualPrivacy.ca includes a variety of opinions. Focusing on privacy issues, and, to a lesser extent, consumer concerns, Fewer sometimes talked as though DRM was inevitable. "We're realists, right?" Fewer says. "We have certainly said to the government -- and we will continue to say -- that no anti-circumvention law is a good law, and that Canada should not be legislating anti-circumvention laws. If, despite our warnings and despite our cautions, the government is dead set on drafting such a law, we have statements about the things that governments can do to mitigate the harmful effects of such laws."

While CLUE shares these concerns, McOrmond explains that free/libre and open source software (FLOSS) communities have addition concerns. Quoting the Free Software Definition, McOrmond says, "Any technology that revokes the right of the owner of a device to be in control that device for lawful purposes (i.e.: revokes the ability to 'run, copy, distribute, study, change and improve the software' that controls the device) can't be implemented with FLOSS. This is where the technical and the legal communities sometimes diverge." DRM legislation that protected privacy could still threaten FLOSS.

For this reason, while CLUE continues to work with other members of the coalition, McOrmond and Leibovitch are also developing their own policy documents.

Other members of the coalition may have their own positions. For instance, the various library associations that belong to the coalition may be chiefly concerned with how legislation affects their members. But, in general, Fewer feels that the coalition is a representative cross section of stakeholders. "I don't think anyone can look at the signatories on this letter and dismiss them as being an insignificant community. And they've spoken with us in a fairly firm and consistent message."

From whatever perspective, Fewer concludes, the coalition "would encourage anyone with concerns about these kinds of laws to speak up -- even if it's ordinary individuals, even if it's individual open source programmers. Make your voice heard."

Bruce Byfield is a course designer and instructor, and a computer journalist who writes regularly for NewsForge, Linux.com and IT Manager's Journal.


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