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Taking Stock of My Fair Copyright for Canada Principles

By Michael Geist

Several people have written over the past week to repeat a question that arose regularly last December - "what do you think fair copyright reform looks like?"  My 61 reforms to C-61 will address many needed changes to the Prentice bill, but it is simpler to point to the eight key principles that I outlined earlier this year.  While I think the principles reflect a balanced approach that is consistent with the underlying values of copyright, only one is fully reflected in Bill C-61.  The eight principles with commentary on the impact of C-61:

Take the Copyright Pledge.  All Members of Parliament should be comfortable with the principle that they will not "introduce, support, or endorse any copyright bill that, either directly or indirectly, undermines or weakens the Copyright Act’s fair dealing provision."  Fair dealing, which forms a crucial part of the copyright balance, is critically important for education and free speech and deserves full support from politicians regardless of party affiliation.

Bill C-61 runs directly counter to this pledge as the bill quite clearly weakens the Copyright Act's fair dealing provision.  Canadians who rely on fair dealing, whether for education, creativity, or access to knowledge, may find themselves literally locked out of the user right in the digital environment.

Anti-circumvention provisions should be directly linked to copyright infringement.  The anti-circumvention provisions have been by far the most controversial element of the proposed reforms.  The experience in the United States, where anti-circumvention provisions effectively trump fair use rights, provides the paradigm example of what not do to.  It should only be a violation of the law to circumvent a technological protection measure (TPM) if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing or private copying purposes.  This approach - which is similar (though not identical) to the failed Bill C-60 - would allow Canada to implement the World Intellectual Property Organization’s Internet treaties and avoid some of the negative "unintended consequences" that have arisen under the U.S. law.

Bill C-61 takes the exact opposite approach, by presuming that all circumventions violate the law subject to a series of narrow exceptions.  The unintended consequences that have arisen in the U.S. are unquestionably headed to Canada if the bill becomes law.

No ban on devices that can be used to circumvent a TPM.  Canada should not ban devices that can be used to circumvent a TPM.  The reason is obvious - if Canadians cannot access the tools necessary to exercise their user rights under the Copyright Act, those rights are effectively extinguished in the digital world.  If organizations are permitted to use TPMs to lock down content in a manner that threatens fair dealing, Canadians should have the right to access and use technologies that restores the copyright balance.

Bill C-61 bans devices that can be used to circumvent a TPM.  The limited exceptions are so narrowly drafted that the ability to use them is open to question.

Expand the fair dealing provision by establishing "flexible fair dealing."  Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent). The Supreme Court of Canada has already ruled that Canada's fair dealing provision 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) that renders everyday activities such as recording television programs acts of infringement.  The ideal remedy is to address other categories such as parody, time shifting, and format shifting by making the current list of fair dealing categories illustrative rather than exhaustive.

Bill C-61 instead adopts the piecemeal approach by including time shifting and format shifting (though puzzlingly no parody exception).  This approach is less than ideal since the new exceptions are subject to host of limitations and a broader fair dealing provision would be fairer to creators, users, and business.

Establish a legal safe harbour for Internet intermediaries supported by a "notice and notice" takedown system.  The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world.  Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats.  Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners.  The ideal Canadian approach would be a "notice and notice" system that has been used successfully for many years on an informal basis.

Bill C-61 includes a notice-and-notice approach.

Modernize the backup copy provision. As part of the 1988 copyright reform, Canadian copyright law was amended to allow for the making of backup copies of computer programs. In 1988, backing up digital data meant backing up software programs.  Today, digital data includes CDs, DVDs, and video games.  All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional.  From a policy perspective, the issue is the same - ensuring that consumers have a simple way to protect their investment. "Modernizing" copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

Bill C-61 does not modernize the backup copy provision.  Indeed, the ability to format shift content such as movies is limited to videocassettes.

Rationalize the statutory damages provision. Canada is one of the only countries in the world to have a statutory damages provision within its copyright legislation.  It creates the prospect of massive liability - up to $20,000 per infringement - without any evidence of actual loss.  This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for one peer-to-peer file sharing defendant and leaves many defendants with little option but settlement.  Before Canada faces similar developments, we should amend the statutory damages provision by clarifying that it only applies in cases of commercial gain.

Bill C-61 does include the $500 personal download damage award which moves the law in the general direction of statutory damages reform.  However, given the limitations on this new provision, the prospect of massive liability for individual Canadians remains.

Include actual distribution in the making available right.  The new bill will likely include a "making available" provision that will grant copyright holders the exclusive right to make their works available.  While there is reason to believe that Canadian law already features a making available right, any new provision should require actual distribution, which ensures that liability only flows from real harm.

Bill C-61 does not require evidence of actual distribution, suggesting that there may significant liability without evidence of harm.

Full post as published by Michael Geist on June 24, 2008 (boomark / email).