An Act to amend the Copyright Act (39th Canadian Parliament, 2nd Session)
Bill C-61, An Act to amend the Copyright Act, was a bill tabled in 2008 during the second session of the 39th Canadian Parliament by Minister of Industry Jim Prentice. The bill died on the order paper when the 39th Parliament was dissolved prematurely and an election was called by the Governor General Michaëlle Jean at Prime Minister Stephen Harper's request on September 7, 2008. The Conservative Party of Canada promised in its 2008 election platform to re-introduce a bill containing the content of C-61 if re-elected.
The bill was the successor to the previously proposed Bill C-60 (38th Canadian Parliament, 1st Session), and was the government's most recent attempt to update Canadian copyright laws. Specifically, the Conservative government claimed that the bill was intended to meet Canada's WIPO treaty obligations. Bill C-61 attracted widespread criticism from critics who claim that it does not strike a fair balance between the rights of copyright holders and consumers. There is also confusion between C-61 and the Anti-Counterfeiting Trade Agreement which would also significantly modify copyright in Canada.
Jim Prentice claimed that it would "expressly allow you to record TV shows for later viewing; copy legally purchased music onto other devices, such as MP3 players or cell phones; make back-up copies of legally purchased books, newspapers, videocassettes and photographs onto devices you own". However, the bill would have made it illegal to circumvent DRM technologies effectively rendering the rights granted useless for DRM protected digital media.
The proposed bill contained the following changes on what constitutes copyright infringement and what does not for personal use:
- Citizens did not retain recorded programs for extended time
- Are not backups of DVDs (can only be of videocassettes in format shifting).
- No "digital locks" circumvented
- Transferring of media occurs only once per device owned by the purchaser of the original copy while retaining the original copy.
- Are not of shows broadcast with "no recording" flags
- Are not governed by any other clauses between the rightholder and consumer (ex. Amazon's non-transferability clause, promotional use only, do not sell/transfer, etc.)
- Format shifting must comply with the twelve processes listed here (pdf) in addition to all other conditions listed.
Hosts, such as ISPs, will no longer have legal responsibility under the new bill when their services are unintentionally used to provide access to copyrighted material.
Methods of protecting privacy would have become legal under the proposed bill, however, the distribution of software to do so would have been illegal, effectively canceling out the right.
The bill would have made circumventing all digital locks illegal, including locks on the Internet.
It would have modified what libraries can do in providing digital copies, such that they would not have been allowed to create digital copies for patrons, but the copies would have had to self-destruct or be destroyed within 5 days of creation.
It modifies the copyrights of performers and their performances such that a performer is given the sole right to:
- "communicate [their performance] to the public by telecommunication."
- "to perform [their performance] in public."
- fix their performance in material form, such as recording their performance onto a DVD.
- reproduce, rent, sell or otherwise transfer ownership of any sound recording of their performance.
Proposed fines for breaking the law are (per each instance, personal use):
- A new statutory damage award of $500 for music downloads.
- Since the $500 limit does not apply to all cases, fines up to $20,000 (defined in previous bills) may be incurred (per instance) for:
- Circumventing digital locks or DRM regardless of reason/intent.
- Uploading regardless of awareness, including uploading to YouTube or peer-to-peer networks. Note that peer-to-peer programs generally allow files to be both uploaded and downloaded by default.
- "Making available" of copyrighted material (regardless if it was actually uploaded).
In the case of commercial circumvention of DRM, Clause 32 of the Bill specifies penalties of $1,000,000 and/or five years imprisonment on conviction on indictment, or $25,000 and/or six months imprisonment on summary conviction.
Confusion with Anti-Counterfeiting Trade Agreement
There was confusion between Bill C-61 and ACTA, evident by letters sent by Jim Prentice detailing that no border checks will occur. The proposed border checks are part of ACTA, not Bill C-61.
As you may know, the federal government has proposed amendments to the Copyright Act, which include introducing a $500 fine for people caught downloading copyrighted material from the Internet, and a fine of up to $20,000 for people who hack digital locks or upload copyrighted material to file-sharing websites. From what you have heard, seen or read, do you support or oppose the proposed changes?
— Angus Reid, National Public Opinion Poll
By age, 58% of those aged 18–34 were opposed as compared with 37% of those 35-54 and only 27% of those older. The poll was criticized for not mentioning any of the anti DRM circumvention provisions and an inaccurate definition of "hacked"
Proponents of the bill, including some copyright holders in the entertainment industry, called it a much needed "assurance that [investors are] protected." They have also called it a "win win" balance between consumers and copyright holders with some pushing further asking for format shifting to be made illegal.
The MPAA and RIAA supported the proposal, as they saw it as finally bringing in Canada to WIPO standards, having lobbied/pressured hard for stricter copyright rules.
The Alliance of Canadian Cinema, Television and Radio Artists was supportive. According to Brad Keenan, Director, ACTRA Performers' Rights Society and Sound Recording Division, "the Bill not only introduces the new concept of format shifting, it is also [revises] existing rules on time-shifting. ACTRA believes that consumers should have flexibility, however, artists must be compensated for uses of their work and we don't see this part of the equation in the government releases. We would be deeply concerned if the Bill allows people to copy artists' work onto media devices like iPods without compensation for creators; and, also if existing levies and royalties are affected by this Bill." The current bill does not allow such actions without compensation, and does not override EULA and other forms of agreements. Stephen Waddell, ACTRA's National Executive Director, says it has been "more than a decade since Canada signed on to the WIPO copyright treaties," and that, "implementing these treaties as this Bill does, will bring our laws into the 21st Century." However, among the ranks, there is dissent by some ACTRA members despite the group's public stance. Jason Chesworth, a member of ACTRA on Broadcast This wrote that he, "questioned the union’s position," and that he, "wholeheartedly disagree[s] with ACTRA...in fact....believe[s] that the proposed changes will become a major detriment to artists trying to create content while protecting only those at the top"
Opposition to the bill has come from many sources, including:
Liberal MP Scott Brison, who called the bill a "US made law" that would establish a "police state." A substantial majority (76%) of the population agrees the bill was drafted in the US, despite claims it was "born in Canada."
As of September 29, 2008, more than 92,000 people have joined the Facebook group "Fair Copyright for Canada", started by law professor Michael Geist, to protest Bill C-61. Geist's blog also contains educational resources on copyright reform, and provides tools for constituents to contact their local Members of Parliament. Michael Geist has run a series on 61 possible reforms to Bill C-61 that would make it more palatable. In addition, the magazine ComputerWorld Canada ran its own petition drive, asking the government to amend the bill because it discourages experts and other coders from conducting innovative research.
The Canadian Software Innovation Alliance, an association of open source developers questioned the bill, because of its potentially harmful effects on open source software modification. Spokesman Bob Young, Lulu Inc's CEO (and the former CEO of Red Hat) says "We're crafting these laws without having anyone from the technology industry engaged in the process." He contends that the bill caters too closely to the content industry and not to engineers and software developers.
Consumer groups including Option consommateurs, Consumers Council of Canada, Public Interest Advocacy Centre (PIAC), the Canadian Internet Policy and Public Interest Clinic (CIPPIC), and Online Rights Canada voiced opposition on not being consulted in the creation of the bill.
The Appropriation Art Coalition condemned the Bill saying, "copyright is meant to nurture the rights of creators, not suppress and criminalize artistic practice. It is not the responsibility of any government to legislate art."
The Canadian Association of University Teachers opposed the bill as "making it more difficult for university and college teachers and students to have access to learning and research materials". It noted that material that can be copied now in paper format would not be legally copyable in electronic format when it is digitally encrypted. James Turk, executive director said, "This could be the effective end of fair-dealing, the right to copy and use works for purposes such as research and private study."
Some opponents, like the CIRPA and the CRIA have said the bill should have focused more on commercial piracy instead, while others called into the question of the enforceability of the new bill. Other copyright holders and artists, like the CMCC, spoke out against the bill in its entirety.
Others stated that the new bill would make criminals out of ordinary people who are, for example, using a multi-regional DVD player (popular for immigrants, who otherwise would be prevented from watching movies from their countries of origin; and tourists, who would be prevented from watching videos bought abroad), transferring legitimate DVD media to iPods, or using various other devices. Backing up a computer that contains copyrighted material might also be illegal under the new law.
There was also criticism about the anti-circumvention aspect for making "technology trump whatever rights consumers or competitors might have otherwise had", in that people only have whatever rights the rightholders give them in superseding "agreements", for example, EULA, digital contracts shown when users install, download, etc.) In addition, there has been criticism about the fact that purchasing songs as a gift and transferring the song onto a device owned by the gift's recipient under the new bill would be illegal. 
Editorial reviews of the bill were mostly negative or neutral. In a listing of editorials compiled by Michael Geist, there were no on topic editorials expressing positive support for C-61. In addition, the Canadian Newspaper Association is critical of the bill, for having negative impacts on news gathering.
In late July 2008, Michael Geist criticized the bill on environmental grounds. Specific criticisms include:
- If enacted, Bill C-61 would not allow unlocking of cellphones, forcing consumers to acquire a new cell phone each time they switch a carrier, creating excess waste.
- Bill C-61, which parallels American DMCA, could allow lawsuits over the legality of companies that offer to recycle printer ink cartridges.
- Bill C-61 creates new barriers in the race toward network-based computing, since the ICT industry accounts for more carbon emissions than the airline industry. Network-based computing – often referred to as "cloud computing" – basically are large server farms situated near clean energy sources. The bill could prevent developments on Canada's northern high-speed optical networks with zero carbon emissions. Bill C-61 would further prohibit many uses of network-based computing such as video recording services, backup of data, etc.
- "Conservatives pledge to reintroduce copyright reform". CBC News. October 7, 2008.
- Nowak, Peter (June 12, 2008). "Copyright law could result in police state: Critics.". CBC News. Archived from the original on June 13, 2008. Retrieved Jun 12, 2008.
- Geist, Michael. "The Canadian DMCA". Archived from the original on June 24, 2008. Retrieved Jun 23, 2008.
- Geist, Michael. "http://www.michaelgeist.ca/content/view/5080/125/". Archived from the original on June 5, 2010. Retrieved Jun 3, 2010.
- Geist, Michael (June 13, 2008). "Troubling details in new downloading law". Toronto: The Star. Archived from the original on June 18, 2008. Retrieved Jun 23, 2008.
- Townsend, Emru. "Canada Warming Up Its Own DMCA". PC World. Archived from the original on June 19, 2008. Retrieved Jun 23, 2008.
- Geist, Michael. "61 Reforms to C-61, Day 4: Format Shifting's 12 Step Approval Process". Fair Copyright For Canada. Retrieved Jun 27, 2008.
- Prentice, Jim. "Bill C-61, An Act to Amend the Copyright Act." House of Commons of Canada (Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008) June 12, 2008. Retrieved on July 2, 2008.
(b)Section 20, Subsection 5.01 (c).
(c)Part II - Performers’ Rights 1.1.
- Gollob, David. "The Impact on Newspapers of Bill C-61, an Act to amend the Copyright Act". CNA. Retrieved Jul 7, 2008.
- Rennie, Steve. "Proposed copyright amendments would lower penalty for illegal downloads". Canadian Press (Via Yahoo!). Retrieved Jun 23, 2008.
- Geist, Michael. "A Week in the Life of the Canadian DMCA". Retrieved Jun 25, 2008.
- Nowak, Peter (June 23, 2008). "Canadians Divided over copyright bill: survey". CBC News. Retrieved Jun 23, 2008.
- Canadians Evenly Split on Amendments to Copyright Act Angus Reid Strategies. Retrieved on Jun. 19, 2008.
- De Beer, Jeremy. "Canada's new copyright bill: More spin than "win-win"". National Post. Archived from the original on June 18, 2008. Retrieved Jun 23, 2008.
- Geist, Michael. "MPAA & RIAA Criticize USTR Position on Canada". Archived from the original on July 5, 2008. Retrieved Jul 2, 2008.
- Ponting, Susan. "Copyright Reform A Good First Step". ACTRA National. Retrieved Jun 23, 2008.
- Wilson, Drew. "ACTRA Member Dismayed Over ACTRA Stance on Copyright Reform". Zero Paid. Archived from the original on August 4, 2008. Retrieved Jul 2, 2008.
- Layton, Jack. "NDP Response to the Prentice DMCA". Retrieved Jun 23, 2008.
- Angus, Charlie. "Question to Minister of Industry: Bill 61, Copyright Legislation". Retrieved Jul 7, 2008.
- ComputerWorld Canada, August 1, 2008 (vol 24, #15):pp. 1, 16.
- Rafael Ruffolo, "Bob Young Leads Copyright Fight." 'ComputerWorld Canada', June 20, 2008, p. 3
- Palmer, Ian. "Canadian open source community upset over proposed copyright law". Linux.com. Archived from the original on July 15, 2008. Retrieved Jul 16, 2008.
- gduggan(online nickname). "Appropriation Art Condemns Bill C-61". Archived from the original on June 17, 2008. Retrieved Jun 25, 2008.
- "New Copyright Bill Harms Educators and Researchers," CAUT Bulletin 55, 6 (June 2008), pp. A1, A4.
- Kennedy, Kate and Selley, Chris. "A users guide to the copyright bill". Macleans. Retrieved Jun 23, 2008.
- Schmidt, Sarah. "New Copyright Act targets online piracy". Canwest News Service (Via Financial Post). Archived from the original on June 18, 2008. Retrieved Jun 23, 2008.
- "Copyright Reform Bill Doesn't Help Canadian Artists: CMCC". Mediacaster Magazine. Retrieved Jun 16, 2008.
- "Canadian iPod Users: Beware of the Government of Canada". Pulluxo. Retrieved Jun 23, 2008.
- Geist, Michael. "61 Reforms to C-61, Day 10: Music Shifting Provisions May Conflict With Computer Backup Systems". Archived from the original on July 6, 2008. Retrieved Jul 7, 2008.
- Geist, Michael. "Mapping C-61 Media Coverage". Retrieved Jun 27, 2008.
- Geist, Michael. "Government copyright bill runs counter to emphasis on environment". Ottawa Citizen. Retrieved Jul 25, 2008.
- Anti-Counterfeiting Trade Agreement (ACTA)
- Bill C-60 (38th Canadian Parliament, 1st Session)
- Bill C-32 (40th Canadian Parliament, 3rd Session)
- Canadian Copyright Act
- Digital Millennium Copyright Act (DMCA)
- Protection of Broadcasts and Broadcasting Organizations Treaty