Digital Policy #1: Why Bill C-61 Is a Bad Idea for Canada’s Digital Economy

As we approach a Canadian Federal Election, the long simmering issue of proposed Bill C-61 copyright “reform” (often known as Canada’s even more onerous Digital Millenium Copyright Act, patterned after its US counterpart) has surfaced as a potentially big election issue, at least among those who participate in our digital economy. This is the first in a series of posts around  public policy for the digital age.

A recent blog post by my colleague Alec Saunders, “Why I will be voting against Stephen Harper’s Conservatives when an election is called”, reminded me of some of the key reasons why this represents such bad public policy. In Alec’s words, “Bill C-61 would make most ordinary Canadian families into criminals”, because the law’s focus is so askew that ordinary consumer actions would create infringement. Furthermore, the law as drafted gives too much power to the industry to levy fines in ways that short change our cherished judicial process.

Alec isn’t alone. A good example of the grassroots protest is the Facebook Group, “Fair Copyright for Canada”, created by noted Canadian internet legal authority Michael Geist. Notably, this group has grown quickly to 92 000 members, unprecedented for a legal topic as arcane as Copyright. Clearly, this legislation has struck a nerve, and it should be noted that many of these group members are quite influential in the digital media and computer industry.

I have an even more fundamental objection.  Bill C-61’s provision which attempts to stop people reverse engineering Digital Rights Management measures, quoting from the Draft legislation, prohibits any “… technological measure to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological measure, unless done with the authority of the copyright owner”. By way of analogy, this is like criminalizing locksmiths.

There is no question that such legislation would put a chill on large segments of the software and digital media industry in Canada, simply because it makes innovation and new business models more difficult to develop. An example is that antivirus/security companies often have to reverse engineer security systems to build their perfectly legal product. Make no mistake, those jobs in digital media will be created. The only question is whether, thanks to a lasting chill from Bill C-61, they will be in Canada or elsewhere in our increasingly globalized world.

My message to legislators is that this bill appears woefully unbalanced. I believe there needs to be Copyright legislation. But, like anything else, a balance needs to be struck between technological and business model innovation and the need to protect the incumbent industry. My concern is that our legislators likely lack the detailed technical and economic knowledge of how the digital and internet economies actually function. My suggestion to those in leadership positions in the new economy is to speak up before it is too late. A big slice of our future prosperity is certainly worth lobbying to address the serious flaws in this draft legislation.