Canadian Gov't Restores Balance to Copyright Plan

[David Farber <dave () farber net>]

------ Forwarded Message
From: Michael Geist <mgeist () pobox com>
Date: Mon, 28 Mar 2005 06:54:10 -0500
To: <dave () farber net>
Subject: Canadian Gov't Restores Balance to Copyright Plan

Dave,

Last week the Canadian government announced its long-awaited plans for
upcoming copyright reform. The plan pushes Canada away from a DMCA-style
approach with only  a limited anti-circumvention provision that is linked to
copyright infringement -- no criminalization of devices or software
programs.  Moreover, the plan includes an ISP "notice and notice" system
that differs from the U.S. notice and takedown approach.

My weekly Law Bytes column (posted in full below) assesses the proposal,
noting that the government has soundly rejected the one-sided proposals
raised by a parliamentary committee last fall in favor of a plan that
attempts to balance the interests of creators and users. Government
statement and FAQ on the plan at
http://pch.gc.ca/progs/ac-ca/progs/pda-cpb/reform/faq_e.cfm
http://pch.gc.ca/progs/ac-ca/progs/pda-cpb/reform/statement_e.cfm

Toronto Star version of the column at (reg required)
<http://tinyurl.com/5k8qs>

Non-registration, hyperlinked version at
http://www.michaelgeist.ca/resc/html_bkup/mar282005.html

MG

CANADA REJECTS LOPSIDED APPROACH TO COPYRIGHT REFORM

Last spring the Canadian Heritage Standing Committee, a parliamentary
committee chaired by Toronto MP Sarmite Bulte, conducted a series of
hearings on copyright reform.  Listening to a steady stream of rights holder
groups, the committee virtually ignored the interests of users, researchers,
educators, and the broader public interest as it proceeded to issue an
embarrassing report featuring a series of recommendations devoid of any
sense of balance.

The report was obviously applauded by rights holders groups - the Canadian
Recording Industry Association quickly issued a press release praising the
report and calling for its immediate adoption -- however, in the months that
followed the committee and its recommendations faced an increasing barrage
of criticism.

The education community, led by provincial ministers of education, loudly
protested the recommendations, while Canada's security IT community issued a
public letter warning of its danger to that budding economic sector.

The June federal election also altered the long-term impact of the report.
The committee lost many of its original members, with at least one, former
Liberal MP Paul Bonwick, wasting little time in signing up as a paid
lobbyist for Access Copyright, a leading copyright collective and a prime
beneficiary of the report.

The new committee adopted a decidedly different tone.  Although it re-tabled
the recommendations to obtain a governmental response, Marlene Catterall,
the new committee chair, publicly expressed a desire to learn more from both
sides about the issues.  NDP committee member Charlie Angus was even more
direct, warning that "the recommendations could herald the end of the
Internet as a digital intellectual commons."

The policy reversal came full circle last week as the government released
its official response to the committee report.  Setting out the immediate
path for Canadian copyright reform, the government rejected virtually every
recommendation and instead unveiled a plan that attempts to balance both the
interests of creators and users.

While CRIA was again quick to praise the government, a closer examination of
the proposals reveals a much different story:

-  The committee recommended the immediate ratification of the World
Intellectual Property Organization's Internet treaties. The government,
however, announced that it plans to implement provisions found in the
treaties, but will delay ratification for the moment.
- The committee recommended the establishment of a "notice and takedown"
system for Internet service providers that would encourage ISPs to remove
content upon receipt of an allegation of copyright infringement. The
government announced that it plans to establish a more balanced "notice and
notice" system that requires a court order prior to the removal of content.
- The committee recommended the creation of an extended license that would
force the education community to pay millions of dollars for
publicly-available Internet materials.  The government shelved this entire
proposal, calling for broader consultation on the issue.
- The committee recommended reforms to photographers' copyright, without
protections for the privacy and economic interests of the general public.
The government indicated that it plans to include an important exception for
commissioned photographs for personal or domestic use.
- The committee cautioned against electronic delivery of interlibrary loans,
suggesting that a new license might be warranted.  The government committed
to an amendment to allow libraries to directly deliver certain copyrighted
materials electronically.

Moreover, the government outlined its plans for anti-circumvention
legislation, which establishes legal protection for the digital locks known
as technical protection measures (TPMs) that are increasingly used to
control digital content.  Although it is arguable that no anti-circumvention
provisions are needed, the government at least demonstrated that it is
determined to avoid the dangerous approach taken in the United States.

Unlike the U.S. anti-circumvention provisions found in the Digital
Millennium Copyright Act, the government plans to link anti-circumvention to
actual copyright infringement, pledging that "the circumvention of a TPM
applied to copyright material will only be illegal if it is carried out with
the objective of infringing copyright. Legitimate access, as authorized by
the Copyright Act, will not be altered."

Notwithstanding the encouraging emphasis on balance, there remains reason
for concern, some disappointment, and continued caution. There is concern
that the government has committed to a new "making available" right, which,
if enacted, might pave the way for a slew of new lawsuits against individual
file sharers. 

Contrary to some reports, the proposed changes do not touch peer-to-peer
downloading, but the government will act to ensure that unauthorized
postings of copyrighted work will constitute an infringement.  Given the
likelihood of new lawsuits, the government should limit the use of the
provision to instances where there is evidence of intention to infringe
copyright.

There is also some disappointment since although the government restored
balance to the Heritage Committee's report, it failed to outline a vision
that will truly benefit individual creators and users.  For example, the
government could have undertaken to eliminate the Copyright Act's statutory
damages provisions, which create an unfair benchmark of potential liability
when applied to individual users.  Similarly, it could have introduced new
licensing rules for Internet radio, eliminated crown copyright, expanded
fair dealing, or pledged to maintain the term of copyright at the current
life of the author plus fifty years.  Despite the government's opportunity
to present a bold vision of Canadian copyright, no such changes were
announced.

Most importantly, there is reason for continued caution.  Last week's
government announcement was not legislation but rather merely a statement of
intent.  The devil will be in the details as the copyright community awaits
the actual legislation that emerges from last week's general outline.
With Industry Minister David Emerson and Canadian Heritage Minister Liza
Frulla sharing copyright policy responsibility, the Canadian framework
encourages the development of compromise positions.  Once the legislation is
introduced, however, compromise and balance will be forced to withstand the
voracious array of well-funded lobby interests who will undoubtedly seek the
return to a one-sided slate of reforms.  Ottawa may have presented its plan,
but the copyright battle is far from over.

-- 
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.michaelgeist.ca


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