OTTAWA – A leading Internet lawyer says the Conservatives proposed copyright legislation, Bill C-11, strikes the right balance between content rights holders, ISPs and consumers.
Speaking with Cartt.ca last week, Barry Sookman, a partner with McCarthy Tetrault in Toronto, says the Conservative government got it right with the bill’s provisions around digital locks (or technological protection measures – TPMs) and fair dealing. He adds that comparing the proposed bill with legislation on the books in the United States and in European Union countries, Canada has adopted a much more flexible approach, which will be beneficial to affected parties.
“I think the government has done a good job because it’s creating a legal framework that makes it easier to create services that are good for business and consumers. It’s done it in a way that preserves fair dealing rights and it’s done it in a way that also gives it the flexibility to deal with any unintended consequences,” Sookman explains.
C-11 Copyright Modernization Act, which was tabled in the House of Commons late last month, is identical to its previous iteration, Bill C-32. It introduces a series of measures that codify what is allowed and what isn’t. For example, it is now legal to record TV shows to a PVR (which would come as a shock to the many Canadians who have been doing just that for years). As well, consumers are allowed to make copies of the music CDs they buy. In both instances, the recordings must be for personal use. Under the current decades old legislation, both of these activities were illegal.
The benefits of the TPMs as they are written under the proposed legislation will be two-fold, according to Sookman. Not only will they enable businesses to adopt new business models and offer consumers services in a different way, but consumers will also be able to benefit from testing or trying something out before making a purchase. As an example, he points to renting first and then purchasing later.
“It’s the technological measure that gives the rights holder the confidence that they can offer the consumer something the consumer really wants at a lower price,” he says. “If the consumer could easily break a technological protection measure, then the consumer could always pay to rent but actually have the unrestricted right to use it.”
TPMs have to been criticized in the past as being anti-consumer. Michael Geist, an Internet lawyer and noted commentator on copyright, has in the past said digital locks will do more harm than good. Rather than aiding in fair dealing, they override fair dealing, rendering it useless.
Sookman says, to the contrary, that the TPM provisions are in fact pro-consumer.
“If you look at the overall picture, I think they’re balanced because they both enable new services to be offered which is good for rights holders because they have different ways in which they can offer consumers something they want,” he explains. “They’re actually very beneficial for consumers because they get access to materials they wouldn’t otherwise get, access to content they wouldn’t otherwise get, access to services they wouldn’t otherwise get, in ways that they might not be able to enjoy them.”
The Canadian Association of Broadcasters (CAB) says it’s satisfied with provisions as they relate to consumers recording video content on PVRs and is interested is seeing minor technical amendments with respect to the music reproduction right regime. Gabriel Van Loon, external legal counsel for the CAB and a lawyer with Van Loon Simmons Professional Corp., tells Cartt.ca that it plans to seek a full exemption from the reproduction right.
“The provision as it’s currently worded heads in that direction, but in our view doesn’t take us all the way there. So we have minor technical amendments that we’ve proposed and will continue to propose to ensure that this provision provides broadcasters with a full exemption,” he says.
Radio stations already pay for the communication right to air music, but the CAB says that by forcing them to pay the reproduction right as well, the money is siphoned off to multinational international interests with little going to the artists. (The reproduction right refers to the process of downloading music from the record labels, putting them in servers and incorporating the tracks into a playback system.)
Despite assertions from reproduction right advocates that individuals are receiving money, Van Loon says this is not the case.
“When you really drill down, it’s actually in great part going to corporate interests and it’s going out of the country,” he says.
ISPs and notice and notice
Under the notice and notice regime as proposed in Bill C-11, ISPs have to notify a customer if they are sharing copyrighted material after receiving a complaint by a rights holder. The ISPs are required to keep track of customers who are infringing copyright provisions, but don’t have to take any further action other than pass along the notice.
“It’s a little bit like a policeman chasing a crook and the policeman says stop, stop. The crook says what if I don’t. The policeman yells, I’ll tell you to stop again,” explains Sookman. He adds that other jurisdictions such as United Kingdom, France, New Zealand and Korea have implemented graduated response systems where a sanction can be imposed on the subscriber.
While not advocating for one approach over the others, Sookman says that “international studies have shown that while receiving a notice without any potential sanction has some effect…it’s not as effective as a graduated response system where somebody will know that there is a potential consequence if they don’t respond.”
Remedies under the proposed legislation are limited to the rights holder seeking the identity of the subscriber through the courts. But Sookman notes even this will have limited effect on identifying large scale infringers.
“It doesn’t even given them the information they need to figure out who they should go after because obviously you want to go after somebody who has been given a large number of notices rather than someone who has received just one,” he adds.
While some rights holders are unlikely happy with the notice and notice regime, they are going to have to live with it for the next five years. That’s when the legislation is up for review.
The Conservatives have vowed to pass this legislation before Christmas, something most would agree is needed. Canada’s copyright laws are locked in the Dark Ages and are in dire need of modernizing. Sookman says the new law was something that was needed years ago because of digitization of works and mass use of digital networks like the Internet.
“You put the two things together and you have legitimate changes that are needed to legalize activities in which consumers are engaging that today are infringing that shouldn’t be, like making copies of music onto people’s iPods or copying TV shows onto their PVR,” says Sookman. He adds that ISP liabilities and the tools to deal with content pirates are other elements being clarified in this legislation.
