OTTAWA – Just prior to Parliament’s summer break, the federal government tabled new amendments to the Copyright Act “that will bring it in line with advances in technology and current international standards,” it says.
The bill (C-61) is “a win-win approach because we’re ensuring that Canadians can use digital technologies at home with their families, at work, or for educational and research purposes. We are also providing new rights and protections for Canadians who create the content and who want to better secure their work online,” said Industry Minister Jim Prentice, in a press release.
"These proposed amendments represent the first major reform of the Copyright Act in more than a decade. In that time, the Internet and other new technologies have radically changed the way we produce and access copyright material," added Josée Verner, Minister of Canadian Heritage.
The proposed amendments include:
* new exceptions that will allow Canadian consumers to legally record television shows for later viewing and copy legally acquired music onto other devices, such as iPods or cell phones;
* new exceptions for some educational and research purposes;
* new rights and protections for those who create content; and
* provisions to address the liability of Internet service providers and the role they should play in curbing copyright-infringing activities on their networks.
Consumers will see:
* A "recording of broadcast" exception that would allow individuals to make a single copy of a television or radio program or a simulcast webstream to which they have legitimate access for listening and viewing at a more convenient time. This is often referred to as "time shifting."
* A "private use of music" exception would allow individuals to copy a legally acquired sound recording to each separate device they own, such as an MP3 player (e.g., an iPod) and a computer. Some conditions would apply to the use of this exception. The individual must not have circumvented a technological measure (TM) or digital lock to make the copy, for example.
* A "private transfer of format" exception would allow individuals to make a single copy of legally acquired books, newspapers, periodicals, videocassettes and photographs to various devices they own. This is often referred to as "format shifting." Again, there would be conditions to guide the use of this exception, such as the requirement that the copy of the source material could only be used by the owner of the material for private purposes.
* Canadians’ exposure to monetary liability would be significantly reduced where private, non-commercial activities are involved. For example, in lieu of the maximum amount of statutory damages (which currently can be as high as $20 000 per infringement), a fixed amount of $500 would be payable, providing TMs or digital locks were not hacked in the process. Individuals may still be liable for other types of damages or remedies.
Four principles motivated the government in the development of the proposed changes to the Copyright Act, as noted by the government release:
1. The rights of those who hold copyright must be balanced with the needs of users to access copyright works.
2. The Copyright Act must provide clear, predictable and fair rules to allow Canadians to derive benefits from their creations.
3. The Copyright Act should foster innovation in an effort to attract investment and high-paying jobs to Canada.
4. Canada must ensure that its copyright framework for the Internet is in line with international standards.
These amendments to the Copyright Act are part of the government’s broader intellectual property strategy, which includes the recent amendments to the Criminal Code to combat movie piracy and the announcement that Canada will work with other international trading partners towards a possible Anti-Counterfeiting Trade Agreement (ACTA).
The Canadian Internet Policy & Public Interest Clinic (CIPPIC) of the Faculty of Law at the University of Ottawa doesn’t like it.
“This Bill looks towards the past, not the future,” said Philippa Lawson, Director of CIPPIC. “The Conservative government has opted to move Canadian copyright law much closer to the Digital Millennium Copyright Act, or the DMCA, the controversial American copyright law. Instead of learning from the mistakes in the United States, the government has chosen to repeat them.”
“The government has rejected the made-in-Canada solution to digital copyright laws proposed in Bill C-60.” Bill C-60 was the last Liberal government’s attempt to amend Canadian copyright law. That bill died on the order paper with the fall of the last government,” noted David Fewer, staff counsel for CIPPIC. “(T)his government has opted to import the American approach to these issues: granting special rights to digital locks and paving the road to U.S. style lawsuits. The Americans have had those policies in place for a decade, so we know that these laws offer no solution. These laws won’t make Canadian creators any wealthier.”
“(T)he big copyright players, and the American administration, should be thrilled with the government’s draft legislation – they are the big winners here. Losers, unfortunately, include Canadian consumers, security researchers, educators, students, privacy advocates, Canada’s public domain and Canadian innovators and creators,” said Lawson.
Actors union ACTRA, likes the bill. "It’s been more than a decade since Canada signed on to the WIPO copyright treaties. Implementing these treaties as this Bill does, will bring our laws into the 21st Century," said Stephen Waddell, ACTRA’s National executive director.
"This is only a first step – because film and television performers need a full set of rights under copyright law, the same as every other artist. Passing this Bill allows us to move on to discussions about an international audiovisual performances treaty," added Richard Hardacre, ACTRA national president.
"What we need is a made-in-Canada solution. Vocal opponents of this Bill will characterize it as mimicking what’s already been done in the U.S., but that’s oversimplifying things. Around the world, 64 countries have already implemented the WIPO copyright treaties. Canada is at least going in the direction of finally catching up," added Waddell.
"The Bill not only introduces the new concept of format shifting, it is also revising existing rules on time-shifting. ACTRA believes that consumers should have flexibility, however, artists must be compensated for uses of their work and we don’t see this part of the equation in the government releases. We would be deeply concerned if the Bill allows people to copy artists’ work onto media devices like iPods without compensation for creators; and, also if existing levies and royalties are affected by this Bill," said Brad Keenan, director, ACTRA performers’ rights society and sound recording division.
The Canadian Film and Television Production Association (CFTPA) welcomed C-61.
“The government has consistently stated that updating Canada’s copyright law requires balancing the needs of content creators and users. We will be reviewing the proposed legislation in that light, and will convey to the government any concerns that we may have” said CFTPA chair Sandra Cunningham. “In the meantime, what is important from our perspective is that the dialog about copyright will no longer take place in a vacuum. For the first time in years, all sides in the copyright debate will be able to weigh the merits of substantive legislative provisions and determine whether the proposed bill is moving the country in the right direction. That in itself is progress.”
On the other, other hand, the Documentary Organization of Canada is disappointed with it.
“The proposed law raises serious issues for the continued ability of Canada’s documentary filmmakers to produce the critically acclaimed films for which we are world-renowned,” states DOC Chair, Michael McNamara. “The proposed legislation just makes it harder, if not impossible, for Canadian filmmakers to tell Canadian stories.”
DOC is particularly disappointed with the Bill’s failure to allow for the kinds of uses of content that documentary filmmakers routinely employ in their films. “Who knows better about copyright needs than copyright holders? More than a year ago a survey of our members told us that present copyright laws cause far more problems than they solve” noted McNamara.
“We released a White Paper that offered recommendations to improve how copyright laws can be amended to meet the needs of documentary filmmakers, such as fixing ‘fair dealing’. The government has simply ignored those recommendations in this bill. It seems bizarre that the government would give more time and attention to the whims of Hollywood than to the needs of Canadian Filmmakers and businesspeople.”
The bill will face committee hearings – likely to be rancorous ones – in the fall.
– Greg O’Brien
