The Conservative government introduced a new copyright bill on Wednesday. The proposed changes are far-reaching and I do not intend to document them all. What follows is a brief review of some of the major, and more controversial, changes that are proposed under the bill. Certainly, the bill is more balanced than the two previous attempts at a "digital age" amendment. However the most draconian aspect of those previous bills remains - the protection of digital locks which has the potential to extend copyright protection indefinitely and to eviscerate user rights under the Act.
The Good
The breadth of fair dealing rights has been expanded under the Act. While the list of permissible purposes for fair dealing remains closed, new categories have been included: education, parody and satire. Interestingly, this may extend user rights beyond those enjoyed in the US at least in connection with satire as a permissible purpose. While the US Act has an open list of fair use purposes, its Supreme Court has rejected the use of copyrighted works for satirical purposes as opposed to parody (the basic difference being that a parody pokes fun at the work itself whereas satire will allow a work to be used to target more general social phenomena). The amendment then addresses more specific kinds of user rights such as the legality of remixing copyrighted works to create new works, e.g. posting a youtube video of a toddler dancing to a copyrighted song playing in the background. For those kinds of cases, it seems such activities would be on safe ground since a creator need only show a non-commercial use, no substantial adverse effect on the work, attribution of the source where reasonable, and reasonable belief that use of the copyrighted work was fair dealing. When an activity goes beyond this type of case (say a viral video that has a substantial adverse effect on the work), resort should still be had to the general fair dealing provisions first (CCH tells us that the fair dealing provisions should be analyzed first before looking to the more specific exceptions). While the private copy regime remains for audio recordings, private copies will be permitted for other works legitimately obtained. Finally, time shifting has been legalized under the new Bill, i.e. people can record TV programs (but not on demand programs), sound recordings or other works for later enjoyment under certain conditions.
The Bad
The most egregious aspect of the bill, and one which has been severely criticized for years in this country and the US (where it has long been in force) is the criminalization of tampering with digital locks. Individuals are prohibited from circumventing, offering services or sale of technologies that circumvent "technological protection measures" designed to control access to or dealing of the work even for legitimate purposes. Thus, while you may be allowed under the new bill to make a private back up copy of a video you purchased, the manufacturer may place a digital lock that deprives you of that right and if you try to circumvent that lock, you may be criminally charged. Similarly, if you want to deal fairly with the work in a remix, you will not be able to copy a clip for that legitimate purpose. What's more, digital locks are forever and may not be tampered with even after the copyright has expired, i.e. when the monopoly is over and copies could otherwise be freely made.
The Ugly
The Bill enshrines a "making available" right through the internet in connection with both copyrighted works and sound recordings. This removes any ambiguity that uploads onto peer 2 peer network will constitute copyright infringement. The ugly (or at least unclear) part is determining which internet intermediaries that facilitate copyright infringement online will be liable, in any. There seems to be an intention to exempt from liability "content neutral", "passive conduits" of internet connectivity and services which has been the law in Canada since the 2004 SOCAN decision. Even the making of caches copies (or I would argue any act) to improve efficiency and economy of the internet finds protection under the new bill provided it is content neutral. Furthermore, copyright holders may notify entities like host servers and search engines of infringement which imposes a duty on those intermediaries to notify content providers. The new bill, however, muddies the waters somewhat by imposing liability on intermediaries that provide services that they know or "should" know is designed primarily to enable acts of copyright infringement. While it seems the provision is directed to sites that facilitate file sharing, the ambit of this provision may extend beyond that. Should a host service provider receive notice of copyright infringement in connection with a customer site, would it then be under a positive duty to monitor the site thereafter for fear of being to deemed to know of any future infringements in an objective sense? While the "primarily" language of this provision (as well as the factor analysis for determining liability under the provision) sets an appropriately high threshold, I believe it would be better to add wording which indicates the target of the provision is non content neutral intermediaries.
If you are interested in monitoring the politics of this amendment, see Michael Geist's blog. It seems there is growing support for the bill. In my view, the bill is fine if it were not for the digital lock provisions. Given the seriousness of the consequences of those provisions, however, I do not recommend supporting this bill.
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The Good
The breadth of fair dealing rights has been expanded under the Act. While the list of permissible purposes for fair dealing remains closed, new categories have been included: education, parody and satire. Interestingly, this may extend user rights beyond those enjoyed in the US at least in connection with satire as a permissible purpose. While the US Act has an open list of fair use purposes, its Supreme Court has rejected the use of copyrighted works for satirical purposes as opposed to parody (the basic difference being that a parody pokes fun at the work itself whereas satire will allow a work to be used to target more general social phenomena). The amendment then addresses more specific kinds of user rights such as the legality of remixing copyrighted works to create new works, e.g. posting a youtube video of a toddler dancing to a copyrighted song playing in the background. For those kinds of cases, it seems such activities would be on safe ground since a creator need only show a non-commercial use, no substantial adverse effect on the work, attribution of the source where reasonable, and reasonable belief that use of the copyrighted work was fair dealing. When an activity goes beyond this type of case (say a viral video that has a substantial adverse effect on the work), resort should still be had to the general fair dealing provisions first (CCH tells us that the fair dealing provisions should be analyzed first before looking to the more specific exceptions). While the private copy regime remains for audio recordings, private copies will be permitted for other works legitimately obtained. Finally, time shifting has been legalized under the new Bill, i.e. people can record TV programs (but not on demand programs), sound recordings or other works for later enjoyment under certain conditions.
The Bad
The most egregious aspect of the bill, and one which has been severely criticized for years in this country and the US (where it has long been in force) is the criminalization of tampering with digital locks. Individuals are prohibited from circumventing, offering services or sale of technologies that circumvent "technological protection measures" designed to control access to or dealing of the work even for legitimate purposes. Thus, while you may be allowed under the new bill to make a private back up copy of a video you purchased, the manufacturer may place a digital lock that deprives you of that right and if you try to circumvent that lock, you may be criminally charged. Similarly, if you want to deal fairly with the work in a remix, you will not be able to copy a clip for that legitimate purpose. What's more, digital locks are forever and may not be tampered with even after the copyright has expired, i.e. when the monopoly is over and copies could otherwise be freely made.
The Ugly
The Bill enshrines a "making available" right through the internet in connection with both copyrighted works and sound recordings. This removes any ambiguity that uploads onto peer 2 peer network will constitute copyright infringement. The ugly (or at least unclear) part is determining which internet intermediaries that facilitate copyright infringement online will be liable, in any. There seems to be an intention to exempt from liability "content neutral", "passive conduits" of internet connectivity and services which has been the law in Canada since the 2004 SOCAN decision. Even the making of caches copies (or I would argue any act) to improve efficiency and economy of the internet finds protection under the new bill provided it is content neutral. Furthermore, copyright holders may notify entities like host servers and search engines of infringement which imposes a duty on those intermediaries to notify content providers. The new bill, however, muddies the waters somewhat by imposing liability on intermediaries that provide services that they know or "should" know is designed primarily to enable acts of copyright infringement. While it seems the provision is directed to sites that facilitate file sharing, the ambit of this provision may extend beyond that. Should a host service provider receive notice of copyright infringement in connection with a customer site, would it then be under a positive duty to monitor the site thereafter for fear of being to deemed to know of any future infringements in an objective sense? While the "primarily" language of this provision (as well as the factor analysis for determining liability under the provision) sets an appropriately high threshold, I believe it would be better to add wording which indicates the target of the provision is non content neutral intermediaries.
If you are interested in monitoring the politics of this amendment, see Michael Geist's blog. It seems there is growing support for the bill. In my view, the bill is fine if it were not for the digital lock provisions. Given the seriousness of the consequences of those provisions, however, I do not recommend supporting this bill.
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Some people who make their living from producing material under copyright are less impressed by the fair use provisions in the bill. See, for example, Christopher Moore's comments against the bill and its purported benefits for scholars here: .
Posted by: James Muir | June 09, 2010 at 10:19 AM
http://christophermoorehistory.blogspot.com/2010/06/new-history-of-piracy.html
Posted by: James Muir | June 09, 2010 at 10:20 AM
I have faith that it'll all work out for the best, in the end. I really do.
Anyone seen or heard any updates on the copyright kerfluffle, by the way?
Posted by: Marnie Tunay | August 05, 2010 at 10:33 PM