CRIA President Graham Henderson had some noteworthy comments on copyright reform in an article just published by Grammy.com. While unsurprisingly supportive of Bill C-32, Henderson expressed specific concern about changes to the statutory damages provision. After the government faced criticism for its $500 cap on downloading damages in Bill C-61, it shifted its approach by rightly distinguishing between commercial and non-commercial infringement. The bill now proposes to establish a maximum statutory damages penalty of $5,000 for infringement that the court considers to be non-commercial. That contrasts with commercial infringement, which carries a $20,000 per infringement maximum. Note that the minimums are roughly the same – non-commercial infringement has a $100 minimum, while commercial infringement’s minimum is $200. The existence of maximum and minimum damages places Canada in the minority of countries as most do not have any statutory damages provisions, relying instead on actual damages.
While $5,000 is still very significant potential liability for non-commercial infringement, it apparently is viewed as licence to steal by CRIA. Henderson tells Grammy.com:
“Once this bill is passed, you could go online and steal every movie that’s ever made, every book, and every song, put them on your hard drive, admit liability, and write a $5,000 check. That would be the full extent of it â€” and it would be the first rights holder who would get all the money. Nobody else would get a cent. It’s close to saying that for people who want to steal stuff, there’s a compulsory license of $5,000.”
Is there anyone – other than CRIA – that seriously believes this is likely to become a common outcome? The more plausible explanation for the concern is that notwithstanding repeated assurances that it has no plans to resume suing individuals, CRIA would like that approach to remain a viable possibility and it fears that a $5,000 cap on liability would be too small to justify the litigation.