Canada To Revise Copyright Law

By Jon Newton 6/09/05

“Perhaps the best that can be said of the government’s proposed copyright revisions is that we are embarking on a dangerous, unknown road – but it is, at least, a Canadian road.”

So says CIPPIC lawyer David Fewer in a paper slated to appear in the next issue of Butterworth’s "Internet and E-Commerce Law in Canada".

CIPPIC is short for the Canadian Internet Policy and Public Interest Clinic which has been, and still is, one of the bulwarks standing against relentless efforts by the entertainment cartels, principally, to bludgeon Canada into re-writing her copyright laws to suit their purely commercial vested interests.

Jon Newton

“They gave us Celine Dion, now we return the favor by giving them the DMCA?” - writes Broadband Reports on the news that “new DMCA-esque copyright laws will be proposed next week in Canada” and that they “offer new penalties for cracking copy protection, while also establishing a ‘notice-and-notice regime’, which, like here in the States, allows the music industry to send legal threats to p2p users via their ISP.”

Digital Copyright Canada’s Russell McOrmond states, "We must be very strong in this.".

“While the bill won’t be as bad as the recording industry wants, for it to come out of committee without getting worse we need to have citizens very strongly opposing the bad parts of it, and proposing amendments to make things better for us.”

Canadians won't find out exactly how the government will implement the proposals until a draft bill is issued, but, "assuming the government follows the plan unveiled in March, Canada is likely to get a bill that overwhelmingly addresses copyright owner interests ... with little for millions of individual Canadians other than the cold comfort that it could have been worse," says Canadian e-commerce expert Michael Geist.

And while we wait, as Fewer points out in his forthcoming paper, A Dangerous but Canadian Road: The Government Proposes to Revise the Copyright Act, the current minority Liberal government is very much in the dark shadow cast by Gomery Inquiry into the Quebec sponsorship scandal.

Be that as it may, "The Canadian government is to be commended for resisting pressures from foreign content holders and foreign governments, and proposing distinctly Canadian solutions to the challenges of digital technologies," Fewer told p2pnet.

"That said, the government is proposing to introduce liability for circumvention technological protection measures and rights management information for infringing purposes, and to introduce a brand new 'making available' right to attack peer-to-peer technologies.

"These moves can't help but make Canada a more dangerous place for innovators and consumers."

He also says CIPPIC is "very concerned with the government's proposal to impose liability on Canadians who 'enable or facilitate' circumvention of a TPM or alteration or removal of DRM for infringing purposes.

"This represents a dangerous departure from the well-understood 'authorization' standard of liability already in the Copyright Act. In our view, this is way too broad, and potentially works great mischief. The government has chosen not to outlaw circumvention and alteration tools and devices.

"Why would it undermine this sound policy?"

Below are excerpts from A Dangerous but Canadian Road.

The making available right – and peer-to-peer technology generally – is tightly tied to Canada’s music private copying regime. The government has indicated that it will issue a discussion paper on private copying “as soon as possible” after the introduction of a copyright bill. The government should defer introduction of the making available right until it has undertaken a thorough review of the private copying regime. It is also unclear whether the government intends to require a mental component to the act of making available or will instead provide for strict liability. The former would be preferable to the latter to insulate from liability those who unknowingly and without a positive act make copyrighted works available.

ISP liability
For some time now, content industries have focused on the role ISPs play in facilitating unauthorized copying of content over the Internet. The government proposals only partly address these concerns. The government proposes, first, to exempt ISPs from liability “in relation to their activities as intermediaries, namely, their activities as mere conduits for information, their caching activities, their hosting activities, and their information location activities.” This amounts to a formalization of the informal “notice and notice” regime for ISP liability that the Canadian industry has operated under for the past decade.

Under this regime, when an ISP receives a notice that a subscriber is hosting allegedly infringing content, the ISP must forward the notice to the subscriber. The content industry had been pushing for a Canadian version of the American “notice and takedown” system, whereby on receipt of an infringement allegation, the ISP must “take down” the offending website pending the customer’s challenge of the allegation. The notice and takedown system has been roundly criticized as excessively damaging to free speech and as burdensome to ISPs. Under the proposed Canadian system, ISPs would only be required to take down content pursuant to a court order.

Second, the government proposes to require ISPs upon receipt of a notice to “keep a record of relevant information for a specified time.” Ominously, the announcement suggests that “[r]ights holders would have the legal means to compel ISPs to comply with the regime.” Again, we must await the legislation to appreciate the implications of this proposal

Statutory Damages:
We are disappointed that the government is apparently going to again neglect addressing the incredibly abusive nature of statutory damages. These rights, intended to address commercial piracy, continue to apply inappropriately to our public institutions, and, potentially, in a wildly disproportion manner to uploaders in file-sharing lawsuits. In a world where Yahoo! offers unlimited downloads for $60.00 per year, Canadians should not be threatened with millions of dollars in statutory damages.

Broadband Reports - The Canadian DMCA, June 9, 2005


Jon Newton is the editor of and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge you to explore it.


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