Bill C-32: Copyright debate turns ugly. Again.

And here I was hoping that we could debate Bill C-32 rationally, if not calmly. Instead, we have our Minister of Canadian Heritage characterizing critics of Bill C-32 as: “Those absolutists out there, who are babyish in their approach to copyright legislation,” and who really want to see copyright destroyed. Who calls on people to “Make sure that those voices who try to find technical, non-sensical, fear-mongering reasons to oppose copyright reform are confronted every step of the way and they are defeated.”

Let’s leave aside the fact that if there are technical problems with C-32, we should hope that Parliament would fix them. Let's be clear: Minister Moore's attempted framing of the copyright debate as a battle between those who believe in copyright and those who don't is absolute nonsense. Copyright legislation always involves reaching a compromise among very disparate groups. What we're seeing right now is a debate between these groups, all of which have much to win and lose.

It’s not as simple as users v. creators. Copyright has never been about only making sure creators get paid. More often than not, it’s been about ensuring publishers have an incentive to distribute creators’ works, a means to the end of ensuring that books, movies, music and so on get produced and distributed .

In addition to creators, distributors and publishers, who still play an important role in helping creators be heard, must get their due: your record companies, Hollywood, ISPs, book publishers, Apple, and so forth.

A good bill would also take into account the creators of tomorrow, who depend on easy access to existing works to create their own books and music. It would minimize the roadblocks to the creation of professors’ lesson plans, and make it as easy as possible for researchers and authors to get the books they need to conduct their research.

It would also ensure that no existing industry is protected from competition by a future, more efficient business model.

Of course, it must also take into account those individuals who listen to music, read books, use computer programs and watch movies. This is more than mere consumption: it is the very way in which we advance ourselves as a society. Anything that needlessly limits our access to information presents a fundamental problem for our society.

And, contrary to what Heritage Minister Moore suggests, it’s not as if there’s a whole lot of evidence that stronger copyright protection even encourages production. I hesitate to say this, because doing so is a one-way ticket out of the respectable policy debate, but it is a completely defensible position, both empirically and theoretically, that we’d be better off with no copyright, or a drastically different copyright regime. Opponents of this view have to (or should have to, I guess) address it through reasoned debate, not polemical assertions.

Given all these interests and legitimate conflicts, is it surprising that certain groups object to what’s in Bill C-32? Bill C-32 creates winners and losers. While I, as a creator and citizen, might object to the way Bill C-32 would override the limitations and exceptions that are integral to any copyright law by giving the final say on rights to whoever owns the digital lock on a work or device, I also know that there is a policy argument to be made for this view.

(The argument for the strong legal protection of Technological Protection Measures (TPMs) is as follows:

• Canada’s treaty obligations require the imposition of “adequate legal protection and effective legal remedies” for the protection of TPMs.
• These TPMs are needed in order to encourage the wide digital distribution of creative works: movies, music, video games, books.
• Without this protection, Canada will enjoy a suboptimal level of digital production and distribution.
• Since TPMs can be broken, often quite easily, we have to outlaw all tools that can break TPMs (adequate legal protection).
• Finally, crucially, the social benefit from doing all this outweighs the social costs, such as the restriction of existing rights and allowing the owners of these digital locks, rather than copyright law, to set the terms on which people can access and use even works they have legally purchased.)

Heritage Minister Moore’s insulting comments represent an attempt to demonize and delegitimize those who have legitimate concerns with (and alternative proposals to) what he and Industry Minister Tony Clement have proposed. If you dismiss your critics, you don’t have to deal with their arguments.

I would hope that we, as Canadians, expect better from our government. If Moore believes in his legislation (and, as I indicated, there is a legitimate policy argument to be made for it), then he should have the confidence to defend it on its own terms. Explain to us why you think that Bill C-32’s approach to TPMs is better than the bill proposed by the Liberal government in 2005 (which would have made it a crime to break a lock only for the purposes of violating the underlying copyright).

Make the case. But, please, dial down the rhetoric, and start treating all your constituents with respect.