Canadian government introduces new copyright legislation

Information Outlook, July, 2005 by Lesley Ellen Harris

Last month the Canadian government introduced a long-awaited bill to amend the country's Copyright Act. The bill addresses short-term copyright reform issues while the policy divisions of the government continue to work on medium- and long-term reform issues. This bill, numbered C-60, continues the ongoing reform process in which the last major amendments were made to the Copyright Act in 1997 (ironically, in a bill also numbered C-60.)

WIPO Treaties

As mentioned in my column of January 2005, two new World Intellectual Property Organization (WIPO) treaties were introduced in 1996 to provide a minimum level of protection in digital-related copyright issues in countries that adhere to them. To comply with these treaties, countries must ensure that their laws meet the minimum standards in the treaties. Thus, in the U.S., the need for the Digital Millennium Copyright Act (DMCA). One of the main purposes for Bill C-60 is to bring Canada's copyright laws up to the minimum standards of the two WIPO treaties. To do this, the bill includes the following amendments:

* The exclusive communication rights of authors are clarified to include control over the making available of their content on the Internet.

* Sound-recording makers and performers are granted the right to control the making available of their sound recordings and performances on the Internet.

* It will be an infringement of copyright to circumvent, for infringing purposes, technological measures designed to protect copyright works.

* It will be an infringement to alter or remove rights management information embedded in copyright material when done to further or conceal infringement.

* Rights holders are granted control over the first distribution of their content in a tangible form.

* The duration of protection of photographs will be the life of the photographer plus 50 years in all circumstances.

* Performers will enjoy full reproduction rights in sound recordings.

* Performers are given moral rights in their fixed and live performances.

ISP Liability

ISP liability is not discussed in the two WIPO treaties and is a matter for each country to determine on its own. Bill C-60 exempts ISPs from copyright liability when they are acting merely as intermediaries. When an ISP receives notice from a copyright owner that one of its subscribers is allegedly hosting or sharing copyright-infringing content, the ISP will be required to forward the notice to the subscriber, and to keep a record of relevant information for a specified time.

Educational and Research Access

The bill deals with specific educational and research access issues, while other issues are reserved for further amendments. The government will begin a consultation process on educational use of publicly available Internet material, while the following issues are dealt with in the bill:

* Students in remote locations will be able to view a lecture using network technology, either in real time or at their own convenience.

* Content that may be photocopied for students pursuant to a school's blanket license with a collective society (like the CCC in the U.S.) may be delivered to students electronically without additional copyright liability. This will be until a similar blanket license for electronic delivery is available from a collective.

* Academic articles may be electronically delivered through interlibrary loan.

Initial Reactions

Like all copyright legislation, Bill C-60 satisfies some but not all in the copyright community. The bill was cosponsored by Canadian Heritage Minister Liza Frulla who stated, "These amendments strengthen our creators and cultural industries against the unauthorized use of their works on the Internet. This legislation strikes a balance to serve both our artists and users." But not all affected parties agree with the "balance" of the bill. The recording industry and ISPs are certainly happy to see their interests protected, though it's too soon to hear their comments on specific wording of the legislation. The library and educational communities, on the other hand, are likely disappointed to see limited provisions in their interest.

Michael Geist, a law professor at the University of Ottawa who specializes in Internet and e-commerce law, also points out some missing elements in the bill:

* Statutory damages are not addressed (and "are desperately in need of reform").

* Moving fair dealing towards fair use is not dealt with. "This was "recommended by a government study more than 20 years ago."

* "Elimination of crown copyright does not merit a single mention."

* "Greater transparency for Canada's copyright collectives, which collect hundreds of millions each year, but provide precious little information in how that money is spent or distributed, is not addressed."

Background of the Bill

The 1997 amendments to the Canadian copyright statute included Section 92, which obligated the government to do a comprehensive review of the law within five years. In response to this, in October 2002, the report Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act (the section 92 report) was tabled in Parliament. Wide public consultation followed that report, by the Standing Committee on Canadian Heritage. On May 12, 2004, the committee released its Interim Report on Copyright Reform, which was readopted on November 4, 2004. On March 24, 2005, the Ministers of Industry and Canadian Heritage jointly tabled the government's response to the committee, including the Government Statement on Proposals for Copyright Reform. To view various copyright reform documents, see: www.pch.gc.ca.