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Archived - Toutant, R.

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Past attempts at modifying Canada's copyright legislation, such as Bill
C-61, have been proclaimed by government ministers to balance the rights of copyright holders and average citizens. However, C-61 had major flaws that made the legislation very unbalanced. It leaned heavily in favour of the customers of corporate lobbyists in Ottawa rather than the citizens of this great nation.

For example, as highlighted by a B.C. newspaper, the bill would have meant fines of up to $20,000 for copying a compact disc or digital video onto an MP3 player or computer, even if the original copy was legally purchased. As well, cell phone owners would have been breaking the law if they were to unlock their phone in order to use it with a different service provider. The bill also outlawed modifying software, common practice for Linux computer operating system users. But most frightening of all was the threat to privacy. It forced internet service providers to hand over information of who is doing what on their computer or the Internet.

The B.C. Civil Liberties Association released a position paper entitled
"Bill C-61 and Civil Liberties" (avail. at that highlighted the facts that:

* proposed technological protection measures would have prevented a myriad of legitimate uses (as eluded to, above)
* C-61 would have created a regime of mandatory data retention that would have been unbalanced by a lack of judicial oversight.

Michael Geist pointed out that under C-61, transferring music from a copy-protected CD to an iPod or similar device would have violated the law. So, too, would efforts to play a region-coded DVD from a non-Canadian region or students' attempts to copy-and-paste content from some electronic books. This is not at all reasonable in this day and age.

The federal government proclaimed C-61 to be a "made in Canada" solution. The truth is that it was a copy, in its essence, of the Digital Millennium Copyright Act (DMCA) that has caused legal havoc in the United States. The last thing Canada needs is a "made in America" DMCA debacle. To date, the DMCA has plugged American courtrooms with over 20,000 lawsuits against average Americans. In fact, one case is known where the DMCA was used to bring a 13 year old child to face criminal charges for downloading an mp3 song. Most shockingly, these charges were not brought about through police investigation, but rather, corporate spying supported by the legal framework of the DMCA.

The Kourier Standard Newspaper pointed out that Bill C-61 would have given the police carte blanche to contact any Internet service provider to request what people have downloaded without a warrant from a judge. Mr. Hunt commented that "...Canadians expect reasonable limits. We count on judges and warrants to make sure we're not stopped and frisked on the street because an officer didn't like the way we look. Our home computers deserve the same protection." He further compared the powers provided by Bill C-61 to the powers exercised by totalitarian regimes such as those of China and North Korea. I certainly second that sentiment.

More recently, Michael Geist has astutely pointed out that legislation should "heed the words of the Supreme Court of Canada", and that "in 2002, the Court argued that over-protecting works is just as problematic as under-protecting them" where the specific quote is as follows:

"The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to under-compensate them."

Mr. Geist has stated further that:

"The U.S. Digital Millennium Copyright Act is not the only way to implement the WIPO Internet treaties... Do not permit international treaty negotiations to pre-determine domestic reforms."

Indeed, Canada needs a made in Canada solution, not one designed in Washington. We need a balanced solution that does not make common criminals out of school children and young adults, accused with poor and often dubious evidence and generated by corporate spies who are supported and sponsored by the state. Canadian legislation must serve Canadian citizens first, and not the private police forces of corporate entities. It must place judicial oversight over the gathering and release of personal data transported via Internet service providers or stored on the computers of private citizens.

Furthermore, as Mr. Geist points out: our solution should not include anti-circumvention legislation to override the copyright balance. Furthermore, new legislation should keep copyright protection at the life of the author plus 50 years. Nor should it establish a "three-strikes and you're out" system that removes Internet access based on unproven allegations of infringement (Internet access is far too important to establish a system that would cut off access based on unproven allegations of infringement).

I trust that new legislation will consider the above and consequently strike a balance in favour of the rights and freedoms of individual Canadians.

Best Regards,

R. Toutant
Ottawa, Ontario