01/20/2012 05:33 EST | Updated 03/21/2012 05:12 EDT

SOPA: A Warning to Canada Lawmakers

Last night's Republican presidential candidate debate featured a question on the Stop Online Piracy Act (SOPA), leading all four remaining candidates to register their opposition to the bill. Their positions are consistent with the growing trend on the right in the United States as the Republicans that are increasingly opposed to SOPA and PIPA with Democratic supporters left to wonder why their representatives remain so out-of-touch with the popular view of the public (this morning Democrat Senator Reid announced a delay in the vote on PIPA). In fact, it isn't just Republican politicians who are opposed to overbroad copyright reforms: the right-leaning press and conservative think tanks are expressing the same views. None of these groups or politicians can be accused of being soft on crime or weak on intellectual property. Rather, they recognize the need for government to tread carefully and to ensure that legislative initiatives do not undermine basic freedoms and personal property rights.

The opposition to SOPA is not limited to the right in the United States. In Canada, Blogging Tories, which aggregates dozens of right-leaning blogs, went dark in support of the SOPA protest and the National Post was the only major Canadian paper to publish an editorial on the issue, concluding:

On Wednesday, Wikipedia and a handful of other sites will shut down in protest of SOPA and PIPA. They have our full support. Governments should not be in the business of propping up outdated business models, nor of blocking legitimate speech. This draft legislation would do both.

All of this raises the question of whether the government's approach in Bill C-11 is consistent with this trend. The overall talking points certainly are as the government talks about letting the market rule, protecting creators by targeting piracy, and giving consumers new freedoms. The devil is in the details, however.

Bill C-11 includes provisions to target infringement (the enabler provision) and shifts toward market-focused solutions with the creation of new consumer exceptions that ensure those rights are built into the price of the products, not subject to additional levies. The bill is also cognizant of the importance of Internet freedom with a notice-and-notice approach to Internet provider liability and a consistent rejection of proposals that could lead to terminating Internet service.

The outlier, however, remain the digital lock rules, as was noted in this National Post op-ed. Far from adopting a market-focused approach, the C-11 digital lock rules are among the most restrictive in the world with the government intervening in the market by creating incentives to adopt digital locks.

The government message to business is clear: with digital locks you get all your copyright rights plus you get to override consumer rights such as fair dealing, time shifting, or making backup copies. For consumers, the loss of property rights is enormously troubling (and one reason for doubts about the constitutionality of this aspect of the bill).

The "right" approach on this issue is to avoid meddling in the market by linking circumvention of digital locks to actual copyright infringement. That would provide legal protection for digital locks but ensure that the copyright balance (including copyright exceptions) is not lost in the process.