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Wednesday, June 30, 2010

My Take on Bill C-32 (Part 12): The Finale

Alright ladies and gents, here we are, the final push to the end of this thing.

It's taken a long, long time to get here... much longer than I'd originally anticipated but I have to say I'm glad that I've put in the time to do it. Even though it provided me with endless hours of brain cramps and even though there are still a boat load of things I don't quite understand... it's given me insight onto shores that I don't normally tread.

So, without further fanfare, let's get moving for the last time:

"Land Ho!"

Note: You can read the new, proposed Bill C-32 here and the original Copyright Act here.

Also one reminder: All links provided below are for comparison purposes and they load, where possible, the section that's available in the original Copyright Act.

In 41.27(1) "Injunctive Relief Only - Providers Of Information Location Tools [now: 'ILT']" basically says that in an infringement proceeding against a 'provider of a ILT' that is found to be guilty the best you can hope for is an injunction.

That's right folks, no cash, just 'stop doing that'. Now, by 'information location tools' are they talking about search engines? Or news aggregation sites? Or... what?

Subsection 41.27(2) "Conditions For Application" says that subsection (1) only applies if the provider: makes and caches the reproduction automatically for the purpose of providing the ILT; communicates that copy to the public via telecommunication for the purpose of providing the information located by the ILT; does not modify the copy for anything other than technical reasons; complies with whatever conditions were set forth by the holder of the copyright when they posted it online (ie. Open copyright, etc); does not interfere with the 'lawful use' of the technology to obtain data on the use of the work.

41.27(3) "Limitation" says (I think) that if the provider receives a notice of infringement for a location but the infringing work has already been removed or deleted then they are protected under subsection (1) from any copies made of that work for 30 days after the day the provider receives the infringement notice.

41.27(4) "Exception" says all bets are off if the provision of the ILT constitutes an infringement of copyright under subsection 27(2.3).

And finally, they get around to telling us what an 'information location tool' is in 41.27(5) with:

"In this section, “information location tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network."

So... yeah, that leaves the door open for a whole lot of services... not just search engines.

Moving on to section 42 "Criminal Remedies" where they add some new wording onto subsection (3) "Power Of Court To Deal With Copies Or Plates":

New subsection (3.1) says that everyone -- except someone acting on behalf of a library, archive, museum or educational institution -- is guilty of an offence if they knowingly and for commercial purposes, contravene section 41.1 (circumventing technological protection measures). Also, on conviction on indictment, they are liable to a fine not more than $1 million or a prison term not more than 5 years or both; OR, on summary conviction, the fine is not more than $25,000 or a prison term not more than 6 months or both.

Now we move along to Section 43 "Infringement In Case Of Dramatic, Operatic or Musical Work" where they add subsection 43.1 (formerly repealed in the Act back in 1997).

"Limitation Or Prescription Period -- Limitation Or Prescription Period For Civil Remedies" 43.1(1) says the court may award a remedy for any act or omission that has been done 'contrary to this Act' if: the proceedings in regards to the "act or omission giving rise to a remedy" being within 3 years of the offence -- if the offender knew (or should have known) at the time that there was an 'act or omission'; OR in the case where the offender did not know they had done something wrong, the proceedings must begin within 3 years from the time the offender first knew, or could have been reasonably expected to know.

So, basically, one way or the other, you have 3 years to act on an infringement case? Is that what this is saying?

I'm not sure about all this 'reasonably expected to know' stuff, who's to say what's 'reasonable'?

A whole lot of vague language there...

43.1(2) "Restriction" says the court shall only apply the limitation or prescription period in (1)(a) or (b) if the party pleads for a limitation period.

Jumping ahead a bit, we find ourselves at Section 58 "Execution Of Instruments" and subsection (1) where it seems like they're just adding more 'WPPT Country' language to the bill (essentially updating it to include the changes from earlier) and clarifies who, exactly, has the power to oversee the assignment or license granting an interest in copyright.

Another giant step forward into Section 62 "Regulations" where they add a bunch of new paragraphs stating the types of regulations the Governor in Council can make. The original (a) and (b) in the Act become (d) and (e) with the new paragraphs reading as follows:

"(a) for the purposes of paragraph 30.01(6)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(b) for the purposes of paragraph 30.02(3)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(c) prescribing the form of a notice of claimed infringement referred to in subsection 41.25(2) and prescribing information to be contained in it;"

This just mostly seems to be callbacks to regulations in earlier additions to postings... some sort of quick 'regulation-index' perhaps?

In Subsection 67.1(4) "Prohibition Of Enforcement" more updating of language... looks like another callback index of sorts that says if a proposed tariff is not filed with respect to the work in question, nothing can be started without the written consent of the Minister for:

And then they add a paragraph (b) that says:

"(b) the infringement of the rights referred to in paragraph 15(1.1)(d) or 18(1.1)(a); or"

So, if I'm reading this right, if the tariff is not filed properly you can't (without a Minister's written consent) go after someone for infringement of rights if they take a recording of your work and put it online without your consent...? (which is basically what those two sections cover).

Section 68(2)(a)(i) "Criteria And Factors" changes the language slightly from "referred to in subsections 20(1) and (2)" to "the provisions of section 20 other than subsections 20(3) and (4)".

Section 68.2(2) "Proceedings barred if royalties tendered or paid" says that you can't start infringement proceedings against someone if they've paid or offered to pay the royalties tendered in a specified tariff. They update the language by adding paragraph (b)

"(b) the infringement of the rights referred to in paragraph 15(1.1)(d) or 18(1.1)(a); or"

Which, again, seems to cover/deal with someone putting your work up on the web for download.

Big changes in Section 71(1) "Filing Of Proposed Tariffs" all they do is remove a reference to 'subsection 29.6(2)' and change 'any such tariff' to 'such a tariff'.

Small changes in language, however, I'm sure there's a reason for it. What that is... I'm not sure.

Generally it seems like the section is saying 'no one but a collective society that is in the business of collecting royalties' can file tariffs with the board...?

Subsection 76(2) "Royalties That May Be Recovered" only removes a reference to 'subsection 29.6(2)'.

Subparagraphs 76(4)(b)(i) and (ii) in "Claims By Non-Members -- Regulations" are repealed.
Both made reference to subsection 29.6(2).

Subsection 78(1) "Board May Determine Compensation" just adds references to subsections 33.1(2) and 33.2(2) and adds to the scope of the provisions of the Board when determining compensation... I think.

Section 92 "Review Of Act" clarifies exactly when and whom shall be involved in reviewing the Act. Right now the Act is to be reviewed every 5 years... I think it should probably be every 3 or 4 years with the way technology is changing... but that's just me.

Now we move onto what are called "Transitional Provisions" which, from my best educated guess, deal with how certain things will work in the interim as the 'transition' takes place...?

Let's take a look.

59.1(1) "No Revival Of Copyright In Photograph" says that though section 10 of the Act is repealed by Section 6, it does not bring back into force any copyrights on photographs that had expired.

59.1(2) "Cases Where Corporations Were Decided To Be Authors" they say that if you are an effected corporation under Section 10(2) of the old act then you're treated as an individual 'author' apart from section 10(2) when the new act comes into force. Your copyright continues to subsist for a term set out in sections 6, 6.1, 6.2, 9, 11.1 or 12 of the Copyright Act.

59.1(3) "Cases Where Individuals Were Deemed To Be Authors" says that if you were deemed to be the author of a photograph under subsection 10(2) of the Copyright Act then you continue to be considered the author of that photograph when section 6 of the new Act comes into force.

60 "Engraving, Photograph or Portrait" says that Subsection 13(2) basically grandfathers you into the new act, explaining that if section 13(2) applied to your engraving, photograph or portrait plate or original in the old act then it continues to apply after the coming into force of Section 7 of the new Act.

61 "No Revival Of Copyright" says that Subsections 23(1) to (2), as enacted by Section 17, do not revive the copyright or the right to remuneration on the expired copyrights of any performer's performance or sound recording.

62(1) "Limitation or Prescription Period" limits Subsection 43.1(1) - saying that, when enacted by Section 49, it only applies to proceedings for 'acts or omissions' that that occurred after the coming into force of that section.

62(2) "Former Limitation or Prescription Period Continued" says that Subsection 41(1) of the act applies to infringement proceedings that happened before Section 47 came into force.

And finally... Yes, FINALLY:


63 "Order In Council" says that this all comes into force when the Governor In Council says so. ("On a day or days to be fixed by order of the Governor In Council")

And there we are folks, The End.

Two and a half weeks of reading and cross-referencing and guesstimating have got us here.

If you followed me all the way through this, you may be just as crazy as I am.

But, seriously, as weird and surreal as this whole thing has been, I'm really happy I did it... I feel like, even if only tangentially, I have a better understanding of a few of the underpinnings of how and why my government thinks and acts... and just how different my thought processes and theirs often are.

Is this document the be-all and end-all of evil that it's being made out to be? I don't think so.

But I'll get more into this in my Summary... which I'll probably get around to on Friday... 'cause, really, I just wanna relax and enjoy my Country's Birthday in style.

Hope you have a great one, folks!


Monday, June 28, 2010

G20: The Aftermath

I was walking home from my writer's group meeting on Saturday when I saw them -- the crowd coming toward me. A LOT of people walking up Yonge street, talking hurriedly into their cell phones, some even crying.

What the heck did I miss?

It's a weird sensation, walking toward what everyone else is trying to get away from.

Little snippets of conversation:

"I can't believe they --"

"We can't have criminals like this --"

"-- they smashed it all."

And slowly it came into view.

The shattered glass and the crowds standing around with their cameras. On the corner of Yonge and Dundas a steel chair peeked out of the window of a Starbucks.

Across the street a Tim Hortons seemed just as bad off.

On and on I went, people walking by, taking photos of the damage and destruction.

People shaking their heads or their fists... a lot of people wondering where the police were.

And that was something that caught me off guard. I'd just figured that the cops had come and broken it up or something, made some arrests.

Apparently not.

I spoke to a shop owner near Yonge and Dundas who was just happy that his business wasn't hit -- though the jeweler up the street wasn't quite as lucky.

I asked him what had happened and he said that he'd been watching the events unfold from his front door, that the crowd came up and what cops WERE there had all run away. He pointed to the debris on the streets, at the road signs that had been busted to pieces and used to break the windows and said "Why were these things left around? Did no one see that they could be weapons??"

He was taking pictures as well, shaking his head in disbelief. He told me that every level of government had told him (and other Toronto businesses) that it was all on them if anything happened during the G20. No matter what, they were not going to be reimbursed if there were any damages.

"And it's not like you can even get insurance for this!" he said. "They call it 'acts of Terrorism'... and you just can't get it."

He went back into work then, had customers to attend to... but we wished each other well, shaking our heads at the stupidity of the destruction.

Unfortunately there was still a lot more ahead of me.

This man stood on the streets, yelling at the top of his lungs that this was his opportunity.

He stood there yelling that his human rights had been violated by immigration officers.

The crowd that formed stood around and egged him on, laughing mostly as a few took pictures.

Fewer still noticed the tiny, scared woman peeking out from behind the shattered glass of the American Apparel behind him.

I'm guessing she was working when this all went down 'cause she looked a few shades of frantic, to say the least.

'Message received', I guess. I mean, how dare she work for an 'evil corporation', right? I'm sure she deserved that experience.

Side note: I learned slightly later on that the models in the window there had been splattered with feces... so, yeah, there's an extra bonus.

And yes, while I didn't see a SINGLE police person during the 45-or-so minutes I spent walking down Yonge street I heard helicopters high overhead and watched an ambulance work its way through the crowd.

Of course I wouldn't learn about classy acts like 'setting police cruisers ablaze' until later that night.

I wonder if that's where the ambulance was heading?

But yes, everywhere I turned there was broken glass and people taking photographs and shop keepers desperately trying to keep their wares safe from potential looters.

I went home afterwards and watched the coverage on the news and, when I saw that it was... well, not all that informative, I jumped onto Twitter... and that's where the real journalists were.

People sharing images on Twitpic and giving locations and updates on what was going on. Pointing us to raw footage and blog posts and personal views.

Here's some of the raw footage from the 26th:

Jeebus, man... this is nuts.


Friday, June 25, 2010

My Take on Bill C-32 (Part 11)

Okay folks, we're in the home stretch!

So let's not dilly-dally.

Just to make it easier, you can read the new, proposed Bill C-32 here and the original Copyright Act here.

Also one reminder: All links provided below are for comparison purposes and they load, where possible, the section that's available in the original Copyright Act.

We've moved beyond 'Digital Locks' into "General Provisions" with section 41.23(1) "Protection of separate rights".

This one seems to say that the owner of 'any copyright' -- or any person the copyright owner has given special privilege to (via right, title, interest by assignment or grant in writing) -- may act as a party in [infringement] proceedings in their own name to protect/enforce any right they have or have been given and are entitled to "the remedies provided by this Act".

So... basically, even if you're not the copyright owner, if you've been granted a specific 'right' and that 'right' is breached by an infringer then you can take them to court over it?

In 41.23(2) "Copyright Owner To Be Made Party" it says if someone other than the copyright owner takes that infringer to court then the copyright owner is be made a party to (brought into?) the proceedings... unless:

"(a) in the case of proceedings taken under section 44.1, 44.2 or 44.4;

(b) in the case of interlocutory proceedings, unless the court is of the opinion that the interests of justice require the copyright owner to be a party; and

(c) in any other case in which the court is of the opinion that the interests of justice do not require the copyright owner to be a party."

41.32(3) "Owner's Liability For Costs" says that the copyright owner is not liable for any costs unless they take part in the proceedings.

Subsection 41.32(4) "Appointment Of Damages, Profits" says that if the copyright owner is made party to the proceedings the court will dole out the damages or profits (referred to in subsection 35(1)) between them -- subject to any other deals/agreements made between the person who started the proceedings and the copyright holder -- however the court feels is fair or 'appropriate'.

In 41.24 "Concurrent Jurisdiction Of Federal Court" says pretty much exactly that.

"The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under sections 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act."

Now we head into a new section "Provisions Respecting Providers Of Network Services Or Information Location Tools"

Or PRPONSOILT for short.

Subsection 41.25(1) gets us rolling with "Notice Of Claimed Infringement" that says that a copyright owner may send a notice of claimed infringement to a person who provides:

"(a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;

(b) for the purpose set out in subsection 31.1(5), the digital memory that is used for the electronic location to which the claim of infringement relates; or

(c) an information location tool as defined in subsection 41.27(5)

Now, I'm guessing this where they're saying that it's okay to send infringement notices to someones ISP? I'm not sure, the language seems kind of fuzzy here.

41.25(2) "Form an content of notice" Says all the things you have to include in your 'notice of claimed infringement'. It must be in writing and shall: state your name, address and any other vital contact info; identify what work was infringed; state your relation to the work (owner, rights-holder, etc); specify location data for the electronic location (most likely IP address) where the infringement happened; specify the actual infringement; specify the date and time of the claimed infringement and contain any other necessary information as per the regulation.

Now here's where I start to see a problem: This kind of addition seems entirely there for the RIAA's, MPAA's of the world. No average citizen copyright holder is going to get access to this kind of information, this is the kind of data that you get when you've got millions of dollars of holdings and can call up Bell Canada or Rogers or whatever and say 'yeah, I need this data'.

I mean, I get that by and large it's not the 'little guy's' copyrights that are getting molested out there, but still... it seems to make it pretty hard for regular people to adequately protect their copyrights.

Section 41.26(1) "Obligations Related To Notice" says that anyone who receives a notice of claimed infringement (that's properly filled out) shall, "on being paid any fee that they've been lawfully charged for doing so":

"(a) without delay forward the notice elec- tronically to the person to whom the electron- ic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and

(b) retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.

This seems to charge the ISP with making sure that they forward the 'infringement notice' to the appropriate user.

41.26(2) "Fees Related To Notices" says that The Minister can, by regulation, "fix the maximum fee that a person may charge for performing his or her obligations under subsection (1)" and that if there is no maximum fixed by regulation then they may not charge ANY amount under that subsection.

41.26(3) "Damages Related To Notices" says that a claimants only remedy against a person who doesn't pay up after being served with an infringement notice is statutory damages. The amount of which is no less than $5000 but no more than $10000 -- whatever amount the court feels is 'just'.

41.26(4) "Regulations - Change Of Amounts" says that the Governor In Council can regulate the increase or decrease the minimum and maximum statutory damage amounts in (3).

And that's it for now - go out and enjoy the weekend! Make sure you don't get arrested ;)

We're going to finish this up on Monday!


Wednesday, June 23, 2010

My Take on Bill C-32 (Part 10) - 'Digital Lock' edition

Alright, today's the big day.

I've finally worked my way through to the 'Digital Locks' part of the Bill and that's what I'll be focusing on.

There's a LOT here so, hey, feel free to come along and read with me.

WARNING: There's a LOT here. Just sayin'.

You can read the new, proposed Bill C-32 here and the original Copyright Act here.

Also one reminder: All links provided below are for comparison purposes and they load, where possible, the section that's available in the original Copyright Act.

Okay so, since this is a whole new section, the first thing you have to get out of the way is the new definitions for the terms you're going to be slinging.

And as far as sections 41.1 to 41.21 are concerned the word "circumvent" means (and I'm trimming things a bit here):

"to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner; and to avoid, bypass, remove, deactivate or impair the technological protection measure."

But... wait! What is a 'technological protection measure'? (More trimming ahead)

"any effective technology, device or component that, in the ordinary course of its operation, controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or
restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19."

In essence, thy CDs and DVDs shall remain slowly degrading hunks of plastic (uh yeah, these disks aren't exactly 'archival quality') and thy iPods shall remain shackled to iTunes, untouched and unloved by Sharepod or other useful programs that help you maximize that tech you dropped several hundred dollars on only a year or two ago.

But I digress... please, do go on.

In the new Section 41.1(1) "Prohibition" we start off with some lovely language that says "No Person Shall"

And then they hop to it. Plain and simple: No Circumventing of 'technological protection measures' [TPMs]. Period. End of story. If it's there and you, somehow, find a way around it and use it you're a criminal.

You're also not allowed to offer "services to the public" that are primarily for the purpose of getting around TPMs (Sharepod would be in SO much trouble); offer services that have no commercial significance other than when they're being used to circumvent TPMs or market (or work with someone to market) a service that's for the purpose of circumventing a TPM.

Essentially: I can get in deep doggy doo doo simply for mentioning 'Sharepod' let alone linking to their site. Gawd, I'd probably even be in more trouble for linking to Wikileaks earlier (and now). At least under that little bit of language.

Anyways, it's also going to be illegal for you to manufacture, IMPORT, offer for sale or rent, or provide (in any way) any technology, device or component that is designed or produced primarily to circumvent a TPM; any technology, device or component that has little other 'commercial significance' other than when it's being used for the purposes of circumventing a TPM; or market (or work with another person to market) any technology, device or component that is used for those purposes.

In 41.1(2) "Circumvention of Technological Protection Measures" they say that the owner of the copyright in a work that has been infringed by someone who has circumvented a TPM is entitled to any and all 'remedies' that are or "may be conferred" by law -- be they injunction, damages, accounts, delivery up or otherwise.

Section 41.1(3) "No Statutory Damages" says that the owner of the copyright of a work cannot elect to receive 'Statutory Damages' from an individual who bypassed a TPM for their own private purposes.

So, while 41.1(2) seems to open the door for all sorts of wonderful lawsuits from record companies (you know, those who actually own the copyrights to most musicians music these days), 41.1(3) says that they can't come after you for 'statutory damages' as long as you're using it for personal use. Ie: if you rip it and share it, you're in trouble.

Pause here for a moment while the building around me stops shaking from the earthquake...

Okay, still alive... excellent.

Moving on.

Section 41.1(4) "Services, technology, device or component" pretty much says the exact same thing as 41.1(2) but changes the context to 'services' and/or 'people who market those services' -- aka, what's mentioned in 41.1(1)(b) and (c).

In section 41.11(1) "Law enforcement and national security" says that it's not infringement if a TPM is circumvented for the purposes of investigation for enforcement of an Act of Parliament or Legislature of Parliament or protection of National Security.
Subsections (2) and (3) are basically the same language but now dealing with 'services' and/or 'technology, devices or components'.

Basically, the general feeling I'm getting here is that digital locks are for Citizens.

41.12(1) "Interoperability of Computer Programs" says it's not infringement for you to break a TPM as long as you own the program, a copy of the program or have a license to use it and are using it to get information that will make the computer program 'interoperable'. Subsections (2) and (3) are pretty much the same language except (2) says it's okay if you're offering a service that makes the program and any other computer program interoperable.

(3) says it doesn't apply to a person who manufactures/imports/provides a technology, device or component as long as it's to make a program and any other program interoperable AND that tech/device, etc is only for that purpose; or provides that tech/device or component only for that purpose.

41.12(4) "Sharing Of Information" says you're allowed to communicate the information obtained to another person for the purpose of making the computer program and any other program interoperable.

ie. You can tell them how to do it without infringing.

41.12(5) "Limitation" says the information that's communicated under (4) can only be used for making the computer program and any other program interoperable.

41.12(6) "Non-application" says you get no protection under the Act if while making that computer program interoperable you do an act that constitutes an infringement of copyright.

Uh... wow, I can see how this whole thing builds into its own little labyrinth.

And, just to be clear on this 41.12(7) says you're not allowed to share information gathered (covered in subsection (4)) if the person, while making the programs interoperable, does an act that's an infringement of copyright OR an act that contravenes ANY Act or Parliament or ANY Act of legislation of a Province.

In short: You folks better bone up on your Provincial and Federal regulations/Acts, etc. You breach ANY of them and you're in serious shiat my friend.

Now we step into 'Encryption Research' territory with 41.13(1) -- and, not surprisingly, a lot of this language seems to be cut and pasted in with a few notable changes from the earlier 'Encryption Research' section.

Long and short of it: It's okay to break a TPM -- by means of decryption -- as long as you're doing it for encryption research, have 'lawfully obtained' the work, informed the owner of the copyright and you wouldn't be able to do it otherwise.

Also, again, (2) says you're not entitled to benefit from the protection in (1) if you do an act that's an infringement of copyright OR an act that contravenes ANY Act or Parliament or ANY Act of legislation of a Province.

And (3) says pretty much the same thing again but in regards to tech/devices and components.

(Copy & Paste, people!)

41.14(1) "Personal Information" says it's not illegal for you to break a TPM if the work is not accompanied by a notice that states that it's use will allow a 3rd party to collect your personal information -- or, if it does exist but you have no option to prevent it without the restricting your use of the program -- and you're only breaking the TPM to confirm and stop it if the program does collect or communicate personal information.

41.14(2) says you can offer a service or manufacture/import or provide tech/devices or components that circumvent the TPM for the above purpose as long as they don't 'unduly impair' the TPM.

41.15(1) "Security" says it's okay to break a TPM if you're a network admin or owner and you're doing it only to test for system or network vulnerabilities and security flaws. It's also okay to do this as a service and to manufacture/import/provide (including rent or sale) or distribute tech/devices or components as a service provided.

This, of course, carries the regular proviso in (4) that you're unprotected if you do an act that's an infringement of copyright OR an act that contravenes ANY Act or Parliament or ANY Act of legislation of a Province.

(say that 3 times fast!)

Section 41.16(1) "Persons with Perceptual Disabilities" says it's okay to break the TPM if you're doing it for the sole purpose of making it perceptible to the person with a perceptual disability. Same goes for those who offer services and/or manufacture/import/provide tech/devices or components... as long as you're not 'unduly imparing' the TPM then you're golden.

41.17 "Broadcast Undertakings" says it's okay for a Broadcaster to break a TPM for the sole purpose of making an ephemeral copy of a work; a performance fixed in a sound recording or a sound recording otherwise covered in 30.9 UNLESS the owner of the copyright brings the means to enable that reproduction in a timely manner (in light of the broadcast undertaking's business requirements).

Sooo, yeah, does that mean that it's okay for a Broadcaster to break a TPM, rip songs from a CD or DVD and air them, you know, 'ephemerally'? 'Cause I thought that 'ephemeral' recordings were for live, one-off shows?

41.18(1) "Radio Apparatus" says it's okay to break a TPM for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus. It's also okay to provide that service or manufacture/import/provide the tech/devices/components necessary to do it.

For what a "Radio Apparatus" is, see section 2 of the Radiocommunication Act or section 2(1) for the definition of "telecommunications service" (of course, not helpfully shared with us here in the bill -- though, I don't know why not, they could've just copied and pasted it in)

In section 41.19 "Reduction of Damages" the court is allowed to reduce or remit the amount of damages awarded in the circumstances above if you can prove to the court that you were unaware -- and had no reasonable grounds to believe -- that you had contravened that subsection of the Act.

Over in 41.2 "Injunction Only Remedy" they say that if the defendant is a library, archive, museum or educational institution and they can prove they were unaware their actions were in contravention of the subsection the plaintiff is not entitled to any remedy other than injunction.

I wonder if it'll be easier or harder for these institutions to prove their innocence than an average citizen...? How far does the "well, I didn't know!" defense stretch for Joe Schmoe verus Joe Schmoe Academy...?

(note to self, start 'Joe Schmoe Academy').

Section 41.21 is all about "Regulations". Subsection (1) basically says that if it turns out that there's a TPM that would "unduly restrict competition in the aftermarket sector in which the TPM is used" the Governor in Council can make a regulation excluding it from the application of section 41.1.

In subsection (2) the Governor in Council is given a whole host of other regulatory abilities -- including, but not limited to -- prescribing additional circumstances in which 41.1(1)(a) does not apply.

Yes, if this bill is passed, the Governor in Council could just make a regulation stating that you're okay to break TPMs for personal backups.

Whether or not that would actually happen... that's a whole other story. See, there's a bunch of 'factors' they would have to consider first (and I'm paraphrasing directly from the Bill here):

'(i) whether not being permitted to bypass a TPM could adversely affect the use a person may make of the work, the performer’s performance fixed in a sound recording or the sound recording -- let's just simplify and call this 'The Work' -- when that use is authorized, (Aka, when you bought/own it)

(ii) whether 'the work' is commercially available,

(iii) whether not being permitted to circumvent a TPM could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of 'the work',

(iv) whether being permitted to circumvent a TPM could adversely affect the market for 'the work' or its market value,

(v) whether 'the work' is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and

(vi) any other relevant factor; and

(b) requiring the owner of the copyright in 'the work' that is protected by a TPM to provide access to 'the work' to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.'

So, yeah... possible... but not likely.

Section 41.22(1) "Prohibition-Rights Management Information" says that you are not allowed to knowingly remove or alter any electronic rights management information without the consent of the copyright owner or if you know, or should have known, that removing or altering the information would facilitate or conceal any infringement of their copyright or otherwise effect their right to get paid under section 19.

41.22(2) "Removal or Alteration of Rights Management Information" says that the owner of the copyright can come after you (if you infringe on subsection (1)) for any remedies -- injunction, damages, accounts, delivery up or otherwise -- that are or may be conferred by law.

In subsection (3) "Subsequent Acts" The copyright owner has the same remedies available to them against anyone who, without their consent, knowingly removes or alters the rights management information of their work and then sells or rents it out; distributes it to an extent that the copyright owner is 'prejudicially' affected; trades it, distributes it, offers it for sale or rental or exhibits it in public; imports it into Canada for those purposes or uploads it to the internet for access by the general public (telecommunication).

Subsection (4) "Definition of "Rights Management Information"" clarifies this term as information that is:

"(a) is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication; and

(b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.


Everyone still here? Still with us? Did we lose anyone (everyone)?

Yeah, this is not the easiest pill to swallow but I guess, having read this whole thing now the best simplification I can give to this whole section is this:

Digital Locks are for 'regular Citizens' only. Yes, pretty much everyone and their monkey has an excuse to break these TPMs... except the general user.

If you're acting in some special post or job then Digital Locks are just an annoyance. IF you're a tax-paying, otherwise law-abiding citizen... and acting in that capacity... then you're a criminal just waiting to happen.

Ahh yeah, I can see why people are somewhat pissed about this.

That said, my solution to this wonderful 'digital lock' problem is actually somewhat simple:

Put it right on the front of the box that the content inside is locked to that form and that form only.

I guarantee you that if you put that regulation into place and make it just like the front of a pack of cigarettes "STOP! The content inside is LOCKED to this disc and may not be transferred" then guess what? You're going to see a whole whack of a drop in sales.

To me it seems like the entire nature of this 'digital lock' strategy relies on the lazy nature of the consumer, that if they don't know it's locked they'll buy it first and find out later. Ie. Money is still made and the consumer is screwed.

CRTC, if you want to show some balls, regulate that if this bill comes into force then all packaging that's 'digitally locked' should be signaled as such to the consumer.

Right on the front of the box.

'Cause the moment I see that sign there, I can guaran-damn-tee you that I'll put it back on the shelf and thank whomever warned me about it.

Anyways, that's just my 2 cents on this whole 'Digital Locks' thing.

Part 11 tomorrow folks!


Tuesday, June 22, 2010

My Take on Bill C-32 (Part 9)

Holy Crap! Part 9?

Yes, folks, policy is fun -- but we're almost there, can you feel it? Oooh yeah.

For those of you coming into this rather late in the game, or are just feeling too lazy to go to an older post to find the links: You can read the new, proposed Bill C-32 here and the original Copyright Act here.

Also one reminder: All links provided below are for comparison purposes and they load, where possible, the section that's available in the original Copyright Act.

Right, back to it then.

We get off to a creaky start with 33.2(1) - a new subsection entitled "Certain Rights And Interests Protected"

Essentially, it's another wonderful wall of text that borders on indecipherable.

From what I can figure it describes a scenario where, if you're someone who -- before your country becomes a WCT treaty country -- makes an expenditure or incurs a liability in connection with something that would normally be considered a copyright infringement (if it were done at the time of the country being an actual WCT member) then you're not on the hook simply because your country joined the WCT.

Yes, I've probably read that wrong... but hey, please give it a read yourself and let me know what you think.

Subsection 33.2(2) says that a person's right or interest that is protected by subsection (1) terminates if the the owner of the copyright pays the person any compensation that's agreed to or, if they can't agree, then whatever is determined to be fair by the Board (in accordance to section 78).

Section 34 "Remedies -- Civil Remedies" gets a new heading: "Copyright Infringement"

And subsection 34(2) "Moral Rights" changes the language slightly to remove the term 'author' and make it only "the holder of those" rights.

In subsection 34.1(1) "Presumptions respecting copyright and ownership" they add language to make it far more specific, changing "proceedings" to "Civil proceedings taken under this Act"

Sections 36 "Protection of Separate Rights" and 37 "Concurrent Jurisdiction of Federal Court" are being repealed in the new Act.

Section 36 seems like something you might want to keep around... here's the original language from the Act:

"(1) Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act."

I wonder why something like this would be repealed?

By repealing Section 37 they're removing the Federal Court's ability to have concurrent jurisdiction with provincial courts. Does that mean that all infringement issues will now be dealt with by the province they're claimed in?

Sections 38.1(1) "Statutory Damages" 38.1(2) "Where Defendant Unaware Of Infringement" and 38.1(3) "Special Case" are being replaced or modified under the new act.

There's a lot of changes here so this might take a while.

Okay, so basically 38.1(1) says that a copyright owner can choose, at any time before final judgment is rendered, to take statutory damages for which the infringer(s) is/are liable for instead of whatever they would get under section 35(1).

If the infringements are for commercial purposes they may receive a judgment of between $500 and $20 000 for each work -- whatever amount the court feels is "just".

For infringements that are for non-commercial purposes the court can award between $100 and $5000 in total for all infringements -- whatever amount the court feels is "just".

In new subsection 38.1(1.1) "Infringements Not Involved In The Proceedings" they say that if you choose to go after statutory damages for "Non-commercial" purposes then you can't go after the infringer for any other statutory damages that occurred before the proceedings.

Or, essentially, you go after them for statutory damages once (in regards to non-commercial uses) and then the slate is wiped clean for any other ones that happened beforehand.

And, if that wasn't enough, in 38.1(1.2) "No other statutory damages" they state that if a copyright owner has elected to go after statutory damages (for non-commercial purposes) then NO OTHER copyright holder can go after that same person for statutory damages that were made during that time.

In section 38.1(2) if the infringer can prove to the court that they were unaware that they were infringing on the copyright then the court may reduce the amount of the award to "less than $500 but no less than $200"

This amount is also carried over into 38.1(3) which says that if they're awarding statutory damages under paragraph 1(a) or subsection (2) then the court may award a lower amount than $500 or $200 if:

"(a) there is more than one work or other subject-matter in a single medium; and

(b) the awarding of even the minimum amount referred to in that paragraph or that subsection would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement."

A new paragraph (d) is added at the end of 38.1(5) "Factors To Consider" that states (with an interesting sense of leniency) that for non-commercial infringements the court should consider "the hardship the award may cause the defendant, whether the infringement was for private purposes or not and the impact of the infringements on the plaintiff".

Two new paragraphs (d, e) are added at the end of 38.1(6) "No Award" which states that "no statutory damages may be awarded against"

"(d) a person who infringes copyright under subsection 27(2.3); or

(e) an educational institution that is sued in the circumstances referred to in subsection 30.02(7) or a person acting under its authority who is sued in the circumstances referred to in subsection 30.02(8)."

So, essentially, good luck trying to get a statutory damages award out of an 'educational institution' or a person who runs a web (or digital network) service that is designed primarily to enable acts of copyright infringement.

Umm... okay. Still no examples of what that 'service' would look like. Are they talking about something like 'BitTorrent'? Or, more specficially, something like Limewire?

Moving on...

Section 41 -- formerly "Limitation Period for Civil Remedies" -- has become "Technological Protection Measures and Rights Management Information".

Aka: The "Digital Locks" section.

Wow, talk about burying the lead.

This is easily the largest single section/addition I've seen in this whole freaking bill. To say that it's comprehensive... my gawd. It's like staring up at the monolith.

I was hoping to cap this thing off at 10 parts, but this thing's going to need its whole own section and spotlight.

Sorry folks, but this is one big fish and I'll have to serve this up to you tomorrow.

In part-freaking-10 of this feature.


Monday, June 21, 2010

My Take on Bill C-32 (Part 8)

Hey all!

Took a bit of time off on Friday to let this stuff sink in -- Thankfully, after a nice, relaxing weekend and some wonderful good news that I can't quite share yet, I'm back in the saddle for round... uh... 8.

Yes, this is taking far longer than I thought it would but that's the inherent problem with giving a document like this the respect it deserves, trying to understand this thing -- in context -- is a lot harder than I thought it would be.

But we're doing good, a couple more solid pushes and we'll be through.

So... yeah, please bear with me.

For those of you coming into this rather late in the game, or are just feeling too lazy to go to an older post to find the links: You can read the new, proposed Bill C-32 here and the original Copyright Act here.

Also one reminder: All links provided below are for comparison purposes, so you can see what used to be side by side with what's being proposed.

Right. Subsection 31.1(1) "Network Services" -- aka: ISPs.

This is a whole new subsection under Section 31 "Retransmission" in the original Copyright Act.

The long and short of it is this: If you're providing a service related to the operation of the Internet or another digital network and, by the nature providing these services, copyright is infringed... it's not your fault.

Essentially, from what I can see here, this protects Canada's ISPs from being held accountable for what you're downloading online. Also great for administrators of College/University student networks.

Also good, in a sense, for protecting your personal data from police or government snooping... at least by force -- the government/police would have little grounds to threaten the ISP.

Organizations like the RIAA and MPAA couldn't sue the ISP for damages of its users (like in Australia -- though the ISP did end up winning that precedent-setting case).

That said, there's nothing here to stop them from VOLUNTARILY handing over your data (packets, histories, usage data etc.)... but this, it would seem, protects them from being directly attacked and vulnerable to lawsuits

Of course, there is an exception to be made in 31.1(2) and that's to note that the service itself must not constitute an infringement of copyright under subsection 27(2.3).

Just a reminder for those who're wondering what section 27(2.3) is:

"(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service."

In subsection 31.1(3) 'Incidental Acts' they make provisions for people who 'caches' the work -- or does any other similar act to make the 'telecommunication' more efficient does not, by that act alone, infringe copyright.

In subsection (4) they further limit subsection (3) stating that it only applies as long as they do not modify it (for anything other than technical reasons); they ensure that any original directions laid out (in regards to caching or any similar act) are followed; and they don't interfere with the 'lawful use of technology to obtain data on its use'

Subsection (5) says that a person who provides digital memory in which a person uses to store a work (or other subject matter) for transmission on the web or a digital network is not infringing copyright for that act alone.

I'm not entirely I understand this last bit -- is it protecting those who offer online file-storage services or are they talking about something like SD cards or what...?

And, well, frankly section (6) makes my brain hurt... so I'm going to just post it verbatim.

"(6) Subsection (5) does not apply in respect of a work or other subject-matter if the person providing the digital memory knows of a decision of a court of competent jurisdiction to the effect that the person who has stored the work or other subject-matter in the digital memory infringes copyright by making the copy of the work or other subject-matter that is stored or by the way in which he or she uses the work or other subject-matter."

Moving on to section 32(1) 'Reproduction In Alternate Format' is getting an update that adds language that supports 'a person acting at the request' of a person with a perceptual disability or "a non-profit organization acting for the benefit of such a person".

There is a new section being added in the form of 32.01(1) 'Sending Copies Outside Canada' - this bit says that it's not infringement for a non-profit organization "acting for the benefit of persons with a print disability" to make a copy of a work in a format specifically for that disability and send it to another non-profit organization in another country for use by persons with that disability... as long as the original author is a Canadian citizen or permanent resident or a permanent resident of the country to which the copy is sent.

And, of course, 32(2) says that subsection (1) "does not authorize a large print book or a cinematographic work to be sent outside Canada".

You're also not authorized to do this if the work, in the format specially designed for persons with said print disability, is available in that country at a reasonable price and attainable/locate-able in a reasonable time.

Though what 'reasonable' amounts to -- in time or money -- is anyone's guess.

Subsection (4) says that whomever makes said specialized copy will still have to pay whatever royalty has been "established under the regulations to the copyright owner in the work." and subsection (5) says that if you can't find the copyright owner you still pay the royalties to a 'collective society'.

In subsection (6), if you're the organization making and sending said copy you're also supposed to "submit reports to an authority in accordance with the regulations on the organization’s activities under this section."

Subsection 32(7) is all about the regulations the 'Governor in Council' is allowed to make.


"(a) requiring a non-profit organization that seeks to send a copy outside Canada to, before doing so, enter into a contract with the recipient non-profit organization with respect to the use of the copy;

(b) respecting the form and content of such contracts;

(c) respecting any royalties to be paid under subsections (4) and (5);

(d) respecting to which collective society a royalty is payable in relation to works or classes of works for the purposes of subsection (5);

(e) respecting what constitutes reasonable efforts for the purposes of subsection (5); and

(f) respecting the reports to be made, and the authorities to which the reports are to be submitted, under subsection (6)."

And, finally, subsection (8) defines what a 'print disability' which basically translates to any disability that keeps you from being able to read literary, musical or dramatic works in their original formats.

In subsection 32.2(1) "Miscellaneous - Permitted Acts" they move the "or" from the end of paragraph (d) to the end of (e) and add paragraph (f) which states that it's not copyright infringement for someone to use or permit someone else to use, for non-commercial purposes, a photo or portrait that was commissioned for personal purposes unless the owner of the copyright in the photo or portrait says otherwise.

After subsection 32.5(1) 'Certain Rights And Interests Protected' a new subsection 32.6 will be added. This addition climbs all over itself language-wise so maybe someone out there can translate it for me?

"32.6 Despite sections 27, 28.1 and 28.2, if a person has, before the day on which subsection 15(1.1), 17.1(1) or 18(1.1) applies in respect of a particular performers’ performance or sound recording, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would, if done after that day, have infringed rights under that subsection, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on that day is not, for two years after the day on which this section comes into force, prejudiced or diminished by reason only of the subsequent application of that subsection in respect of the performers’ per- formance or sound recording."

I like to think it's like some sort of legal 'easter egg' for those who actually took the time to read this whole thing; Like if you keep pressing 'Left' on some DVDs in the Options menu or something.

In subsection 33(1) under "Compensation for Acts done before recognition of Copyright or Moral Rights - Certain rights and interests protected" the language sees a bit of an overhaul.

Little things like 'notwithstanding' are being changed to 'despite' and lots of 'WCT country' specifics are being added. I think this has something to do with infringements that happen before the country becomes a WCT treaty country...?

I think this is somewhat similar in tone to that other paragraph I couldn't quite understand...

Though I may be wrong.

Feel free to let me know in the comments.


Thursday, June 17, 2010

My Take on Bill C-32 (Part 7)

Can you feel it? The excitement of progress?? We're over the hump, people!

Today we're getting into fun stuff like 'Encryption'. Not entirely sure how that all figures into it... (can you copyright Encryption?!?) but hey, one way to find out.

Let's dive in.

So yep, section 30.62 -- which is new and not in the old Copyright Act -- deals with 'Encryption Research'. Basically, it's not infringement for you to copy a work (or other subject matter) for encryption research if: it (the research) would not be practical otherwise; you own or 'lawfully obtained' the work/subject matter and you inform the copyright holder what you're doing.

"So, uh, I'z gonna b ovr hre n ur internets, craking ur code... k tkx bai!"

Man, it hurt my brain to type like that...

Section 30.63, entitled 'Security' says it's not infringement for you to copy a work/subject matter for the sole purpose (and with the owner/administrator's a-okay) of looking for vulnerabilities/security flaws.

30.7 'Incidental Use' in the original Act gets amended with 30.71 'Temporary Reproductions For Technological Processes'. In it they explain that it's not an infringement to make a copy of a work/subject matter as long as:

"(a) the reproduction forms an essential part of a technological process;

(b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and

(c) the reproduction exists only for the duration of the technological process."

In this next part it looks like we're moving into 'Broadcast Undertaking' territory and how they deal with live performances.

In section 30.8 'Ephemeral Recordings' -- which mostly deals with live recordings of performances -- gets a change to subsection (11)(c) 'Definition of "programming undertaking"' and it's a bit of an interesting one:

"The undertaking must hold a broadcasting licence issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act, or be exempted from this requirement by the Canadian Radio-television and Telecommunications Commission."

Now I'm not entirely sure why this little tidbit seemed necessary to add to the bill... but it did bring my attention to something that's in the original bill that our fellow copyright holders might want to know (if they don't already) -- namely subsections (2) 'Record Keeping' and (3) 'Right Of Access By Copyright Owners':

"Record keeping

(2) The programming undertaking must record the dates of the making and destruction of all fixations and reproductions and any other prescribed information about the fixation or reproduction, and keep the record current.

Right of access by copyright owners

(3) The programming undertaking must make the record referred to in subsection (2) available to owners of copyright in the works, sound recordings or performer’s performances, or their representatives, within twenty-four hours after receiving a request."

As a non-performer I don't know how well this is kept up, but I'm sure it's good for performers to have memorized and in their hip pocket. It's always good to know who has your work and how many copies are floating around... yes? Also gotta like that whole 'mandated turn-around time' for communication.

Not sure how relevant this is in the digital age... but it's still on the books...

Section 30.9 'Pre-recorded recordings' gets a small update in (1)(a) -- just tacking "or has a license to use the copy" on the end.

Also Subsection 30.9(4) "Destruction" sees an update saying that:

"(4) The broadcasting undertaking must destroy the reproduction when it no longer possesses the sound recording, or performer’s performance or work embodied in the sound recording, or its licence to use the sound recording, performer’s performance or work expires, or at the latest within 30 days after making the reproduction, unless the copyright owner authorizes the reproduction to be retained."

Subsection 30.9 (6) "Application" will be repealed.

Moving on, Section 31 'Retransmission - Interpretation' gets a whole new subsection in the form of 31.1 'Network Services' -- AKA: ISPs (though I'm sure it's not limited to them).

And it's a HUGE section... so I'm going to tread into this territory tomorrow.


Tuesday, June 15, 2010

My Take on Bill C-32 (Part 6)

Okay, back to the Bill.

Bill C-32, that is. The new, proposed Copyright bill.

Reminder: You can read the new, proposed Bill C-32 here and the original Copyright Act here. Also: All links provided below are for comparison purposes, so you can see what used to be side by side with what's being proposed.

So now we find ourselves in Section 30.1(1)(c) "Management and Maintenance Of Collection" -- Some new language added here, basically saying that if a library, archive or museum (or person working for them) thinks that the original work is in a format that is or is becoming obsolete, or that the tech required to operate it is becoming unavailable, then it's okay to make a copy of it.

Moving on to sections 30.2 "Research or Private Study" there are two sections being replaced (4) "Conditions" and (5) "Patrons of Other Libraries, etc.".

In 30.2(4) the wording has been changed to say that a library, archive or museum may "provide" the person for whom the copy "is" made under subsection (2) as long as they're only given a single copy and that the person is informed that the copy is only for research or private study. Any other use of the copy may require the authorization of the copyright owner of the work.

For 30.2(5) it looks like they've just added "Subject to subsection (5.02)" off the top... but then they go on to add whole new sections (5.01) and (5.02).

30.2(5.01) says that making a copy of a work in a way other than by reprographic reproduction is "deemed making a copy of the work that may be done under subsection (2)".

30.2(5.02) imposes some limitations - namely that a library, archive or museum (or person working there) may provide a digital copy to a person who's requested it through another library, archive or museum provided said library, archive or museum takes measures to prevent the person from making a copy of the digital copy (including paper copies, other than printing one copy), sending the digital file to someone else or using said copy for more than 5 days from the day it's first used.

How the bloody heck anyone's going to keep someone from doing any of this... is beyond me. This mostly reads to me like "Sure, you can give people digital copies but YOU'RE responsible for what they do with them". Which basically translates to: "There's no way in hell anyone's going to put their neck out on the line for this". I mean, really, what 'measures' are you going to take? How are you going to track what a person does with a digital file once you hand it over to them? Let alone make sure they don't copy and/or distribute it?

Unless I'm reading it wrong and they mean something akin to the opposite.

Alternatively, maybe I should read this as more of an escape clause -- more of a "as long as you've told them these things" you're in the clear. Ie: "Don't drive 140 on the highway, you're gonna get hurt or arrested" "Yeah, sure, whatever". Once you've told them, your part is done. If they wrap themselves around a guard rail or get busted, that's not on you.

Is that a more accurate reading? I'm not entirely sure. Might be more likely though.

Section 30.21(1) "Copying Works Deposited In Archive" adds some new language. Basically saying that "Subject to subsections (3) and (3.1)" it's not infringement for an archive to make and provide a copy of an unpublished work from that archive for any person requesting it for research or private study.

Subsections 30.21(3) "Conditions For Copying Of Works" and (4) "Regulations" have been replaced. Subsection (3) just adds new language that the archive may only copy the work "on the condition that" the person who deposited the work, if the copyright owner, did not prohibit its copying -- or that some other owner of the copyright has not prohibited it.

A whole new subsection here 30.31(3.1) "Conditions For Providing Copy" is pretty much more of the same - can only provide someone with a copy as long as it's a single copy and the archive tells them it's only for research or private study.

Subsection (4) says -- and this is worth a read:

"(4) The Governor in Council may prescribe by regulation the manner and form in which the conditions set out in subsections (3) and (3.1) may be met."

So, finally, in Section 30.6 we get into 'Computer Programs - Permitted Acts" -- I'm sure there's quite a few people who'll want to read this section.

"It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program,

(a) reproduce the copy by adapting, modifying or converting it, or translating it into another computer language, if the person proves that the reproduced copy (i) is essential for the compatibility of the computer program with a particular computer, (ii) is solely for the person’s own use, and (iii) was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it; or (b) reproduce for backup purposes the copy or a reproduced copy referred to in paragraph (a) if the person proves that the reproduction for backup purposes was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it."

Basically, and if I'm reading this right, if you buy the program or have a license to use said program you can basically do whatever you want with it as long as you don't share it. Copy it, recompile it, whatever as long it never leaves your hands...?

But what about instructing others on how to do the changes? I mean, you can't share the program, sure, but can you share the knowledge of how one can modify said program, on their own, for their own personal use without it being an infringement? Could you even then claim copyright over the instruction of how to modify said program...??

Wow, I shouldn't think about this too hard.

New section 30.61 "Interoperability Of Computer Programs" says that it's not an infringement for a person who owns/licenses a copy of a computer program to copy the program for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

So if you're one of those folks who likes to figure out how to make one program work with another, you're golden here... apparently.

Tomorrow we get into "Encryption Research" and "Network Services".

So long for now!


Monday, June 14, 2010

We Interrupt Your Regularly Scheduled Programming

I apologize for those who've come here thanks to Denis' very kind posting on his blog -- this posting has nothing to do with Bill C-32. In fact, it's kinda gross and disturbing, so you might wanna come back tomorrow for Part 6.

Otherwise, yeah, thanks for popping on by and read on.


Now I'm not exactly an animal rights activist -- I've eaten my fair share of meat and I still rather enjoy a good steak... I'm just not a vegetable kinda guy.

That said, what I've just witnessed has me shaking with rage and I want to see these people go to jail. Right now.

What I'm posting below is animal cruelty so vicious... I'm not even... I mean... what fuck is wrong with some people?

WARNING: Do not watch this video if you are easily sickened - the video contains graphic hidden camera footage of fucked up dairy workers (including the owner of the dairy farm) beating and stabbing their cows then bragging about it -- even sending them off to the butcher after they've been beaten too badly to produce.

Now, I'm not naive, I know where my food comes from (HINT: Watch the Documentary FOOD INC.) and unless I start my own farm, there's really nothing I can do about making sure my food is on the straight and narrow.

But when I see shit like this, when I see people trapping and abusing and hurting these animals just for some sick sense of fun...

No way. That's where I draw the line.

So, why am I sharing this video if it's so messed up?

Because I want people to be angry too.

I want to see people sharing this online with others, getting others angry.

Writing letters, naming names and getting this shit dealt with.

There's no call for this kind of thing, this horrible treatment... and we, as consumers and Human-fucking-beings should demand better.

To whomever created this hidden video, thanks -- you've made quite a case for me to get to know my local dairy farmer. Also: I've got one heck of a letter being written up... just gotta figure out where best to send it.

EDIT: Thanks to Deb Nathan who pointed me in the right direction. Send your letters to:

The Ohio Department of Agriculture
How To Help: email agri@agri.ohio.gov

United States Department of Agriculture How To Help: fill out an 'ask the Expert form' and share the link to this video with them. Ask them what they think about it.

How To Help: Go here and post the link on their wall. I'm sure that'll get their attention.

EDIT 2: The Farm where this happened has been identified:

Gary Conklin, owner - Conklin Dairy Farms, located at 12939 US Highway 42 N Plain City, Ohio 43064-8748 (telephone number (614) 873-8024)

FINAL UPDATE: I just received an email from Teresa Landon, Director of the Ohio SPCA:

"The one guy in the video was arrested and charged. The Union County Humane Society and Sheriff Dept are handling the case. We expect more charges to be filed. The Ohio SPCA intervenes in counties where there is no humane society or humane agent."

You can view an article on the guy's arrest here.

My Take on Bill C-32 (Part 5)

Hey all! Back again and... yeah, still more to go.

I think I had a nightmare about this bill last night, mostly involving being chased down a flight of stairs by a giant rolling scroll of this danged bill.

Let's get to it, shall we?

Reminder: You can read the new, proposed Bill C-32 here and the original Copyright Act here. Also: All links provided below are for comparison purposes, so you can see what used to be side by side with what's being proposed.

One of the interesting things I found out by reading section 30.02 (a new addition to the Copyright Bill) -- even though it deals with education more than anything -- is the idea that I, as a copyright holder can decide who gets access to the work I put out there (and they have to listen to me if I say 'no'!?).

I learned this in Subsection 30.02(5):

"(5) If the owner of the copyright in a work informs the collective society that is authorized to enter into reprographic agreements with respect to the work that the owner refuses to authorize it to enter into digital reproduction agreements with respect to the work, the collective society shall inform the educational institutions with which it has entered into reprographic reproduction agreements with respect to the work that they are not permitted to make digital reproductions under subsection (1)."

Now, I'm sure there's a whole whack of other documentation to limit this or something, but essentially we -- should we actually still own our copyrights by that point (the point we're selling to an 'education institution) -- can say we don't want our work digitally reproduced and they have to abide by that.

Unless I'm reading this wrong...? (Hint: It's entirely possible -- please feel free to correct me).

Better yet, if you are one of these people who've had your work used by an educational institution without your consent you have a right to expect 'recovery' as laid out in 30.02(7).

What I find interesting is that when it comes to trying to decipher how much money you're owed as a copyright holder, the language here seems to get more strict and even more confusing.

I apologize but rather than trying to decipher this and screw it up I'm just going to post it verbatim. If you can sort it out, please feel free to sum it up fairly and I'll post it here.

Warning: The language provided below may cause your brain to roll in your skull:

"(7) In proceedings against an educational institution for making a digital reproduction of a paper form of a work, or for communicating such a reproduction by telecommunication for an educational or training purpose to persons acting under the authority of the institution, the owner of the copyright in the work may not recover an amount more than

(a) in the case where there is a digital reproduction licence that meets the conditions described in paragraph (4)(a) in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences; and

(b) in the case where there is no licence described in paragraph (a) but there is a reprographic reproduction licence in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences."

I THINK it means they have to pay you. Though, again, I may be wrong here.

That's mostly justified by subsection (8), lovingly entitled 'No damages':

"(8) The owner of the copyright in a work may not recover any damages against a person acting under the authority of the educational institution who, in respect of a digital reproduction of the work that is communicated to the person by telecommunication, prints one copy of the work if, at the time of the printing, it was reasonable for the person to believe that the communication was made in accordance with paragraph (1)(b)."

Which, if I'm reading this right means that as long as it was 'reasonable' for a person to believe they were acting in the right -- (1)(b) basically means 'communicating a digital reproduction for educational or training purposes' -- then they're okay and you can't go after them for damages.


Ummm... okay.

Moving on, there's a whole new subsection -- actually a whole lot of new subsections -- called 30.03(1) (again, not in the original Copyright Act). It appears to be called 'Royalties - digital reproduction agreement'.

Again, this is very 'education-based' and so far it's basically about how if you're an educational institution and you've paid royalties before for a work but then enter into a 'digital reproduction agreement' (in the nature described in 30.02(4)(a)) with any 'collective society' then you get some love in this bill.

If you'd end up having to pay more royalties to the 'collective' under the digital reproduction agreement then you actually only have to pay the difference between your original royalty (how much you'd have to pay for a digital reproduction of the work if it had been entered into on the institution's first digital copy was made) and the increase laid out in the digital reproduction agreement.

However, if you'd end up having to pay less as an institution, the 'collective society' would have to pay you back the difference between what you paid out as a royalty and what's been laid out in the digital reproduction agreement.

This whole thing is apparently cut and pasted for subsection (2) "Royalties-Tariff" which basically just adds the word 'tariff' and specifies that these same above things would happen, but now in the context of a 'tariff'.

The more I read this bill the more I realize the people who wrote it must've just absolutely loved the 'Cut and paste' feature of their word processor. That's how these documents can seem so unwieldy and painful to read: the people writing them don't have to sit there and re-type each section by hand... I bet if they did the language would be a heck of a lot easier to read...

Tho', most likely, it'd just mean there'd be even more poor legal/parliamentary assistants out there with carpal tunnel.

Can we get a brief moment of love for the poor assistants that have to wade through this...? My gawd... I have to make a constant effort to keep my brain from switching off as I read this stuff. It's like every paragraph now I can almost hear an audible 'click' as my brain turns off and I have to flick it back on... I can only imagine how it must be for those who have to deal with it every day.

Respect. Much, much respect.

Okay, moving on.

More new stuff: Section 30.04(1) "Work Available Through Internet". Again, more educational stuff (sensing a theme are we??).

Long and short of it -- subject to subsections (2) and (5)... I love how they do that, it's like legal foreshadowing... -- if you're an educational institution or someone working for them/"acting under the authority of one" it's okay for you to take work that's already available on the internet and reproduce it, share it with the public, perform it in public or do any other act necessary for the purpose of the previous acts mentioned as long as it's for 'educational purposes'.

That said, I wonder how long this'd hold up if your school/government found out you were educating your students with stuff from wikileaks.com...?

Anyways, of course with that power comes all sorts of responsibility. Subsection (2) goes into a bit of detail: You gotta make sure to cite your source. If available, you should cite the appropriate author/performer/maker/broadcaster depending, of course on what it is (a work, a performance, a sound recording or a communication signal).

More fun with digital locks:

Subsection (3) says this is all null and void if the site is protected by "a technological protection measure that restricts access to the work or other subject matter or to the Internet site".

Kids: No Hacking.

Which brings me back to my Wikileaks bit from before... since THEY got it given to them (but was, for the most part, previously behind digital lock and key) are we forbidden to use it?

Ie. if someone from another country broke the lock and shared it with us... are we a-okay?

Hrmmm... maybe not?

Subsections (4) and (5) get sort of medieval on the concept.

"(4) Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if

(a) that work or other subject-matter — or the Internet site where it is posted — is protected by a technological protection meas- ure that restricts the doing of that act; or

(b) a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself."


"(5) Subsection (1) does not apply if the educational institution or person acting under its authority knows or should have known that the work or other subject-matter was made available through the Internet without the consent of the copyright owner."

That last bit is pretty, uh, cut and dry... especially with a title like 'wikileaks.com' you're pretty much assured that it's being made available without the consent of the copyright owner.

I wonder where the legality of a site like Wikileaks falls in Canada? Does Freedom of Speech fall down before Copyright? Or is it a case of "you can say what you want, just be prepared for the consequences?".

I'm sort of intrigued by this.

Also, just to share this bit 30.03(6) says

"(6) The Governor in Council may make regulations for the purposes of paragraph (4)(b) prescribing what constitutes a clearly visible notice."

Does this mean that the whole thing is open to interpretation?

Well, I guess everything here is open to interpretation... that's probably why they have such banal language (trying to limit interpretation... or discourage reading in the first place...).

To be honest I do find it frustrating that my actual WANT to read this document is constantly being dissuaded by the style and language it's being written in.

How can we expect our fellow citizens to take part in our government if our government provides documentation that seems designed from the ground up to discourage even the most interested lay-person?

Anyways, that's all I got for now - need to chill out my brain, see you tomorrow!