TORONTO – The advantage of Bill C-61 dying on the floor of the House of Commons last month for the election is it provides another opportunity for the federal government to get Canadian copyright reform right this time. That was the opinion expressed during a panel discussion at Insight Information’s third annual Entertainment Industries Summit, held in Toronto on Wednesday.
Casey Chisick, partner at Cassels Brock in Toronto, said the “never-ending story” of Canadian copyright reform has seen two major attempts at bringing forward new legislation since 2001. In both cases, the bill in question (Bill C-60 introduced by the federal Liberals in June 2005 and Bill C-61 introduced in June 2008 by Stephen Harper’s Conservatives) died when the ruling party’s minority government was brought to an untimely end. Even Jean Chretien’s majority Liberals tried – and failed – to get a copyright reform bill passed.
Although Bill C-61 no longer exists, it’s expected to provide the template for copyright reform legislation that the new federal Conservative government has pledged to reintroduce into parliament, Chisick said. And it’s possible the new bill will include some amendments as a result of a new round of lobbying efforts by various copyright stakeholders, he added.
“There were a number of things that Bill C-61 did not address, despite calls from certain stakeholders to do so, “ Chisick said. Some stakeholders called for a “re-imagination” of the fair dealing doctrine within the Copyright Act, Chisick said, “to move away from the categorical approach where we have an exhaustive list of fair dealing purposes, such as news reporting and reviews, toward a more impressionistic approach to fair dealing principles, as opposed to specific itemized uses.”
Another area not addressed in Bill C-61 was the possible reform of sections in the Act related to reproduction of certain types of materials for purposes of broadcast. “The Canadian Association of Broadcasters was certainly interested in seeing that section looked at again – rights holders not so much. And the government decided not to touch it in this particular go ‘round of reform,” Chisick said.
Now that copyright reform is back on the table, there is an opportunity to look again at some of these areas of discussion, he said.
Barry Sookman, partner at McCarthy Tetrault LLP in Toronto, suggested that some of the proposed reforms in Bill C-61 may need further revision before being reintroduced into a new copyright reform bill by the federal government.
For example, the government has proposed the implementation of a distribution right, but one that is limited solely to tangible copies of copyrighted material, Sookman said.
“And of course on the Internet today, what gets distributed is intangible copies,” Sookman said. “In the United States, the distribution right is being used to go after online piracy sites. And so if we’re really serious about creating rights, do we create a limited right that only exists on tangible media? Or do we expand it to the real world rights that are involved on the Internet?”
Another area that needs revisiting is the “making available” right, Sookman said. “The making available right is critical for rights holders to be able to enforce rights on the Internet, particularly with respect to file sharing,” Sookman said.
He pointed out the federal government has stated it believes new rights and protections are required if rights holders are to better reach new markets and adapt their business models to those new markets. However, while Bill C-60 included amendments to the Copyright Act related to the making available right, those proposed amendments did not make it into Bill C-61, Sookman said. The making available right should be an essential component to any future copyright reform, he added.
One of the many proposed “exceptions” in Bill C-61 was the network services exception, which was essentially a safe harbour provision to protect ISPs who act only as intermediaries to the extent that they enable Internet connectivity or facilitate communication between users. According to Sookman, with its current wording, the proposed network services exception does not distinguish between, on the one hand, true “conduit” intermediaries who merely transmit data on behalf of third parties and, on the other hand, people who operate file-sharing services.
An operator of a BitTorrent site could arguably claim immunity under the currently worded network services exception, Sookman said.
In a similar way, the hosting services exception proposed in Bill C-61 is too broadly worded, according to Sookman, and could provide immunity to any person or entity that provides any type of network-connected server or online site for third parties to store and make available copyright-infringing files.
The equally vague wording of the information location tool exception, designed to provide safe harbour to search engine operators such as Google and Yahoo, also potentially sets up the same abuse by pirate services, Sookman said.
In Sookman’s opinion, all three of these exceptions need to be revised if they are to be included in new copyright reform legislation, to better reflect the federal government’s intention in providing these safe harbour provisions.
Stephen Ellis, president of Toronto-based independent TV producer Ellis Entertainment Corp., brought a content producer’s perspective to the copyright reform discussion. In his view, Bill C-61 showed a heavy bias toward the rights of users.
“[Bill C-61] lowered individual liability for non-commercial copyright infringements to a maximum fine of $500. That would be an aggregate of all infringements, regardless of the number of works infringed or copies made. So if you wanted to build yourself a library of works, and you’re willing to pay $500 for it, then you’re good to go under the law as drafted,” Ellis said, somewhat sardonically.
On another note, one long-standing issue for producers is the question of who actually owns the copyright of an audiovisual work. Ellis said it isn’t 100% clear in the Copyright Act – neither in the original Act nor in subsequent amendments.
“There’s a bit of concern that we’re already going down the path of defining special rights for performers, but we’re not bringing up to date the legislation in terms of who actually owns an audiovisual work,” Ellis said, adding it’s an issue producers want the CRTC to address in the next round of copyright reform legislation.
Linda Stuart is a Toronto-based freelance writer.
