May. 26, 2010 - Issue #762: Timeland

Zeit Geist

Navigating copyright

How to understand upcoming copyright legislation

Media reports last week indicated that the government plans to introduce its long-awaited copyright reform bill within the next few days. The bill is sure to spark widespread debate since all Canadians, whether consumers, creators, businesses, or educators, have a significant stake in the outcome.The internal dynamics that led to the bill are by now fairly well known. Industry Minister Tony Clement, emboldened by last summer's copyright consultation that generated unprecedented public participation, argued for a forward-looking, technology neutral bill with flexibility as a core principle. Canadian Heritage Minister James Moore advocated for a US-style protectionist approach, with priority given to digital locks that can be used to limit copying, access and marketplace competition.

The new bill will feature provisions certain to please the US government and lobby groups. Yet the bill will include far more than just tough legal protection for a digital locks.

Here is an unofficial user's guide to the new legislation that focuses on three key issues: fair dealing, Internet provider liability and digital locks.

First, the bill is certain to include a handful of changes to the current fair dealing provision. The Supreme Court of Canada has ruled that Canada's fair dealing provision, which is similar though not identical to fair use in the US, must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting and review) that renders many everyday activities illegal.

During the copyright consultation, many Canadians called for the introduction of a flexible fair dealing provision that would legalize many common activities. This is an issue that touches everyone. Creators would benefit from a parody and satire exception. Consumers would benefit from exceptions for recording television shows or changing the format of content they have purchased. Educators would benefit from exceptions to cover teaching activities and distance education.

Sources say the government has rejected the flexible fair dealing approach but that new exceptions will make their way into the bill. The scope of the exceptions will go a long way to determining whether the bill tries to strike a balance between competing copyright interests.

Second, the bill will address the responsibility of Internet intermediaries such as Internet providers and search engines for the activities of their users and subscribers. The past two copyright bills both struck a reasonable compromise by adopting an approach that gave copyright holders the ability to warn users about alleged infringements, but protected the privacy and free speech rights of the public. The bill will likely adopt the same system once again, which should garner support from across the spectrum.

Third, the bill will include digital lock provisions, known as anti-circumvention rules. These rules, which will allow Canada to implement international copyright treaties it signed over 10 years ago, was the most-discussed issue during the consultation. Thousands of Canadians argued that Canada should adopt a flexible implementation that renders it illegal to "pick a digital lock" for the purposes of copyright infringement, but preserves the right to do so for legal purposes.

Sources say the government has rejected the flexible approach in favour of the US-style ban on circumvention (subject to a handful of limited exceptions). If true, the problem with the approach is that it undermines both the new and existing exceptions. For millions of Canadians, that means that their user rights will be lost whenever a digital lock is present including for CDs, DVDs, electronic books and many other devices. In the process, the balance will tilt strongly away from consumers and their property rights over their own purchases.

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