private copying

Bill C-11 Is Now Law

Bill C-11’s amendments to our Copyright Act have come into force today.

This means we are now no longer able to perform private copies, copies for personal use, from copy protected recordings.

We can continue to make personal copies from legally purchased recordings that are not protected by digital rights management. But copy protected CDs, DVDs and Blu-rays can now no longer be copied, even for backup.

It should be noted that the vast majority of CDs are not copy protected anyway, copy protection having failed in 2005 because of the Sony BMG rootkit issues. And the music industry appears to have adopted the mp3, iTunesicon having included an ability to convert music into that format in their software. But some consumers are still concerned that they could be subjected to experimental copy protection schemes in the future.

To prevent music recordings from being leaked prior to their release date the labels could experiment with copy protection schemes within the industry and later attempt to adopt this format in their distribution to consumers, causing compatibility and security issues.

The technological protection measure provisions were primarily added to protect the film and software industries, but we have yet to see their interpretations in action. And as consumers we will need to remain vigilant.

I will be keeping an eye on these issues and will post additional information as it becomes available.

Bill C-11 – What Now ?

Bill C-11, the Copyright Modernization Act, has passed and will become law shortly.

This means you will no longer be able to perform private copies from copy protected recordings and that the sale of software and devices enabling consumers to make backups of pre-recorded DVDs and blu-rays will be forbidden in Canada.

The sale of multi-region DVD or blu-ray players could also be restricted in Canada though I believe this could be challenged legally because the importation of DVDs and blu-rays from other regions have not yet been made illegal.

I believe the playback of legally purchased material will not likely be targeted by law enforcement, the priority being unauthorized mass distributions on the internet and by vendors. But regional coding is a copy protection scheme that is technically protected by the digital copying provisions of Bill C-11.

Unfortunately this means that some consumers will not be able to legally playback films, concerts or music video compilations that are on a DVD or blu-ray disc whose regional coding is incompatible with their North American player, even when this material is not available via a North American distributor.

This material can be delayed or shelved indefinitely by North American distributors who have the rights to distribute it on Region 1 DVDs or Region A blu-rays in North America. And though some do eventually get released on region free discs, somewhere, many titles remain out of reach to Canadians.

Online film distributors like iTunesicon have helped but the issues remain in regards to the distribution of titles that have not reached a certain popularity in North America. But of course little can be done until clarifications are made in regards to this undistributed content and other issues including the Linux software issue.

Linux based operating systems use software that strip copy protection from DVDs and blu-rays to enable their playback. And some consumers prefer to use this software to view films on their Windows and Mac powered computers.

I personally prefer using Windows Media Center to occasionally play DVDs on my computer. But Microsofticon has said that some versions of Windows 8 will not include DVD playback in a May 2012 blog entry so I will likely be forced to playback DVDs and blu-ray discs using software from the DVD or blu-ray drive manufacturer in the future.

Yes, most of the major manufacturers will probably include software like
CinePlayer with their drives. But will DVD and blu-ray drive manufacturers be allowed to include Linux based software with their products to enable their consumers to view content ?

Ultimately the courts will decide whether the digital lock provisions apply to these situations and we wont know until then.

I suspect the members of parliament will simply ask people to consult attorneys for their interpretations of the new copyright act. But if I find information I will try to link it.

Few Changes To Bill C-11

Bill C-11 appears to have passed through the committee review almost as is.

The amendments proposed by the entertainment industry in regards to a levy on mp3 players and additional limitations on fair dealing and user generated content have been rejected.

Also rejected were the calls for the identification of internet users and the introduction of RIAA style prosecutions to Canada that could have resulted in the prosecution of social networking sites like Facebook and search engines like Google

The prosecution of sites and services that “provide a service primarily for the purpose of enabling acts of copyright infringement” may still be a possibility. But this is expected to go through further processes. And whether website blocking will be part of these processes is unknown.

Unfortunately, the technological protection measure provisions remain intact.

This means private copying will remain limited to material that has not been copy protected and individuals will not be able to obtain equipment or software that enables them to view films from other regions.

Canadians are able to view Region 0 DVDs, Region 1 DVDs and Region A Blu-Ray discs on their store bought equipment. But unfortunately some films are not released in those region codes.

Blu-Ray regional coding may have resulted in better access to Asian films. But many European films appear to stay off Canadian shelves because of their lack of popularity in the states.

Academy Award nominated films and film festival winners do get through but the lesser known titles and some older films, concerts and music video compilations are generally placed in limbo in North America.

Hopefully these films will make their way onto online services like iTunes and Netflix in the future. But I think it is rather ridiculous to demand Canadian consumers purchase DVDs and Blu-ray discs from North American distributors that either refuse to carry films or delay their release for years.

Blu-ray discs and DVDs released in North America have always been my first choice. Importing from Europe is expensive because of the shipping and handling so I’d rather purchase them locally. But how can I purchase something that is not available here ?

Where are many of the Louis De Funes films ? Where are the Region 0 or Region 1 versions of a-ha‘s “Headlines and Deadlines“, Johnny Hallyday‘s “Master Serie” and Les Rita Mitsouko‘s special edition of “Bestov” ?

I’m sure I am not alone in being frustrated by a lack of selection of foreign, non-Hollywood film and music DVDs and Blu-Ray discs in Canada. And the technological protection measure provisions isolates the Canadian consumer from this material, which is unacceptable.

Liberal Party Propose Amendment

In response to the numerous groups calling for an amendment allowing the circumvention of copy protection for non-infringement purposes, the Liberal Party of Canada have proposed an amendment that would alter the following definition in our Copyright Act :

41. The following definitions apply in this section and in sections 41.1 to 41.21. “circumvent” means,

(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, for any infringing purpose, unless it is done with the authority of the copyright owner; and

(b) in respect of a technological protection measure within the meaning of paragraph (b) of the definition “technological protection measure”, to avoid, bypass, remove, deactivate or impair the technological protection measure for any infringing purpose.

I believe the official opposition, the New Democrat Party, will support this amendment. And a petition has been made available though the Liberal Party Of Canada for Canadians to sign here.

The MPAA & RIAA On Private Copying

The Motion Picture Association of America and Recording Industry Association of America have issued a join statement against the circumvention of copy protection for private copying.

On page 47 of their February 10th, 2012 statement the associations claim that there is no need for an exemption (in the States) because copies are available for purchase for numerous devices and “the inability to access a work on the device of one’s choosing is a mere inconvenience that does not justify an exemption“.

At the moment Canadians are not eligible to obtain “low cost” copies from most of the DVD/Blu-Ray programs mentioned in the American report.

We do have access to some digital copy titles. But these are generally included in the more expensive film packages (i.e “combo packs“) and many of these digital copy titles are time limited.

I believe digital copies with expiry dates are unfair to the consumer, who purchases the right to copy the material to a computer or portable device.

The ability to perform a digital copy is prominent on the packaging of these “combo packs” so it only logical to conclude that the consumer sees this ability as a feature and has chosen to purchase these “combo packs” for the ability, at extra cost.

That said, a nominal cost to perform a private copy would probably be the best option for the consumer.

Software is the best option for individuals who wish to make multiple private copies. But the entertainment industry should probably consider advertisement funded private copies to reduce the cost of a private copy after an initial purchase of a DVD or Blu-Ray disc by the consumer.

Whilst downloading a private copy a consumer could be shown numerous commercials for products or upcoming film and television features, like those found at the beginning of most DVDs and Blu-Ray discs.

Another option would be to offer Canadian consumers free downloads from existing services, thus promoting the sale of paid products on those services. There are numerous services available to Canadians including Bearshare and iMesh, who offer music videos, and iTunes and Netflix, who offer music and film downloads.

Some digital copies are available from these services and I suspect cloud services will become the consumer’s choice when it comes to private copying in the future, as it enables consumers to download or stream content on numerous devices.

New Blank Audio Media Tariffs Proposed

The blank audio media tariffs proposed for 2014 were published in today’s Canada Gazette and are as follows :

  • 29 cents per recordable compact disc (CD-R, CD-RW, CD-R Audio, CD-RW Audio)
  • 50 cents per microSD memory card with 1 gigabyte of memory or less
  • 1 dollar per microSD memory card with more that 1 gigabyte of memory but less than 8 gigabyte of memory
  • 3 dollars per microSD memory card with more than 8 gigabytes of memory

Of course the question remains on whether microSD memory cards are “ordinarily used by individual consumers” as an “audio recording medium“, as defined by Part VIII, Section 79 of our Copyright Act.

Personally I have yet to use these cards or any other non-embedded memory card for anything but photography and video. And I also know several individuals who use these cards in their netbooks as a storage medium for their documents. So I have serious doubts in regards to the claim that these memory cards qualify as “blank audio recording media“, especially those of a higher class.

I use class 10 SDHC memory cards for my high definition photography and videos, which are considerably more expensive than class 2 SD memory cards. And the latter is quite adequate for the recording and playback of 254 kbps music files.

According to the SD Association, MicroSD memory cards were manufactured for the mobile phone market. And though most mobile phones now record video in HD, a higher class of memory card is unnecessary for the playback of music on those devices.

Furthermore, mobile phones that include these memory cards at the time of purchase may contain ring tones, software and/or other data, which disqualify these cards as “blank“.

I suspect many memory card manufacturers and retailers will file their objections to these proposed tariffs, as they did in the past. But I also believe Canadian consumers who use these memory cards for photography, video and data storage should also voice their opinions on the matter.

Written objections to these proposed tariffs will of course be accepted by the Copyright Board until April 11th, 2012 at the following address :

GILLES MCDOUGALL
Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9

Objections will be a matter of public record, so please be polite.

Thank you.