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Canadian Bar Association Speaks Out On Bill C-32

By Michael Geist

The Canadian Bar Association, which represents 37,000 lawyers, law professors, and students from across the country, has released an important submission on Bill C-32.  The submission, which was approved as a public statement by both the National Intellectual Property and the Privacy and Access Law Sections of the CBA, does a nice job setting out the debate over Bill C-32 (I was once a member of the CBA's Copyright Policy section but was not involved in the drafting of the Bill C-32 document).

The CBA submission is notable as a strong counter to the frequent attempts to characterize critics of digital lock rules or other elements of the bill as "anti-copyright." Far from the claims that there is near unanimity in support of DMCA-style reforms, the CBA submission confirms that the legal experts who work on copyright issues on a daily basis are deeply divided on many issues. In fact, the CBA submission opens by noting:

The Intellectual Property and the Privacy and Access Law Sections of the Canadian Bar Association (CBA Sections) are pleased to comment on Bill C-32, the Copyright Modernization Act. Copyright is a controversial subject and engages the interests of a wide cross-section of Canadians. This includes copyright owners, who run the gamut from large entertainment conglomerates to self-employed artists, and copyright users, who include everyone from broadcasting corporations to teenagers downloading music in their parents' basements. The copyright bar, similarly, holds a multiplicity of perspectives on copyright.


The digital lock rules (anti-circumvention) comprise the largest portion of the submission. On the issue of banning the distribution of tools that can be used to circumvent digital locks (which is not required by the WIPO Internet treaties), the CBA notes:

some members of the Working Group had concerns about the ban on devices, especially considering that many devices that can be used to circumvent TPMs have other legitimate uses, and may be used to protect individual privacy rights. Many believe that banning devices makes no more sense than banning photocopiers, VCRs or computers - all of which can be used for both legitimate and illegitimate purposes. These members of the Working Group believe that the law should not operate so as to ban any device that has a substantial non-infringing use. This is a doctrine long recognized in both copyright and patent law.

The CBA also notes concerns with the inclusion of both access and copy controls:

While Bill C-32 embraces the broader concept of "access control," some members of the Working Group believe that this is not required by the WIPO Internet Treaties and it would be counterproductive and harmful to Canadians. They question, for example, why legitimate DVDs and BlueRay discs purchased abroad or sent as gifts should not be accessible in Canada, since the restriction has clearly negative effects on cultural diversity and even freedom of expression.

The submission also identifies many concerns with proposed digital lock exceptions, including shortcoming with the exceptions for privacy, research, and perceptual disabilities. Moreover, it points to possible additional exceptions including:

Fair dealing âˆ' The anti-circumvention provision does not contain an express exception for fair dealing, so Canadians who circumvent a TPM for research, private study, news reporting, or criticism (or parody, satire, or education, if the changes to fair dealing are enacted) may violate the law even if their intended use of the copyrighted work is otherwise permitted.

Personal uses âˆ' Many Canadians believe they should have the right to fair, personal use of their property without the law painting them as infringers. Distinguishing between commercial and personal uses of copyrighted materials would have the benefit of not only preserving personal uses, but also placing the obligation on those that use TPMs to ensure that the public retains its rights. Note, however, that some non-commercial uses are already protected under copyright law.

The submission also addresses issues such as fair dealing, ISP liability, and statutory damages.  On fair dealing, the submission notes that:

Some even believed that certain changes to the exceptions do not go far enough. In addition, some members of the Working Group believe that recent U.S. appellate case law11 and rulings by the U.S. Librarian of Congress12 show that Bill C-32 would leave Canadians short of users' fair dealing rights in comparison to their American counterparts, including the overall right to legally circumvent for legitimate, fair dealing purposes.

There is much more here - it deserves a wide read and an opportunity for discussion before the Bill C-32 legislative committee.  As the leading legal organization in Canada, the CBA has produced an important document that affirms the wide range of views on copyright reform within the practicing bar.  It should put an end to claims about "anti-copyright" critics and provide MPs with a better sense of the varying perspectives from experts who deal with copyright issues for clients from a wide range of sectors.

Full post as published by Michael Geist on February 08, 2011 (boomark / email).