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The Bill C-32 Debate Begins: Locks, Levies & Misinformation on Fair Dealing

By Michael Geist

Second reading of Bill C-32 kicked off yesterday with hours of discussion from MPs from all political parties.  Six months after the bill was first introduced, the debate offered the first opportunity to get a sense of where the various parties stand and which issues will be most contentious when the committee tasked with review the bill begins hearings within the next couple of weeks (coverage from PostMedia).

The issue at the top of the Liberal and NDP agenda is digital locks.  Both parties (along with the Bloc) expressed concern with the digital lock approach in Bill C-32.  The Liberals repeatedly emphasized the need for consumers to have the right to circumvent for format shifting, backup copies, and other consumer activities.  This would require changes to both the consumer provisions and the general anti-circumvention provision, since both create barriers to these basic consumer activities.  Given that the U.S. now allows circumvention of DVDs for some non-commercial purposes, this seems like a reasonable compromise.  The NDP placed the spotlight on the impact of locks on education and teaching, describing the exceptions that require destruction of teaching materials 30 days after the end of the course as a digital book burning. 

The NDP and Bloc both remain focused on extending the private copying levy.  Despite their support, the Conservatives remain strongly opposed to such a proposal and the Liberals do not appear to be particularly supportive.  The issue will no doubt be raised at committee, but the likelihood of inclusion within the bill appears pretty slim.

The other big story of the day was the remarkable misinformation associated with the fair dealing reform in Bill C-32.  Months of lobbying have clearly had an impact - many MPs appeared to think that the reforms would provide education with a licence to copy anything and everything with no compensation.  This is a complete misunderstanding of fair dealing and the potential inclusion of the education as a new category.

Canadian fair dealing analysis involves a two-part test.  First, does the use (or dealing) qualify for one of the fair dealing exceptions.  Second, if it does qualify, is the use itself fair.  It is critical to note that extension of fair dealing to education in Bill C-32 only affects the first part of the test.  In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.  The Supreme Court of Canada has identified six non-exhaustive factors to assist a court's fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. What this means is that we already have limits on the meaning of fair dealing, including fair dealing within education.  The mere fact that education is a category will not alter the need for the use to be fair and to meet the six part test articulated by the Supreme Court.

There were certainly other issues raised during the debate - statutory damages reform was surprisingly raised several times (does anyone really think that millions in potential liability is an appropriate figure for non-commercial file sharing?) - but my guess is that these will be the big three issues as the debate continues and the hearing unfolds.

Full post as published by Michael Geist on November 03, 2010 (boomark / email).