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Could SOPA Make Its Way Into Canadian Copyright Law?

Appeared in the Toronto Star on February 5, 2012 as Canada’s overhaul of copyright law could take on a SOPA flavour

The battle over the Stop Online Piracy Act in the United States may have concluded with millions of Internet users successfully protesting against the bill, but many Canadians are buzzing about the possibility that some of its provisions could make their way into a copyright bill currently before the House of Commons.

For months, the public focus on the bill has centered on its restrictive digital lock provisions, which provide legal protection for technical protections found on DVDs, electronic books, and other digital content. Dozens of organizations - including businesses, the Retail Council of Canada, creator groups, consumer groups, education and library associations, as well as representatives of the visually impaired - have argued the government’s approach is overly restrictive and will upset the traditional copyright balance. They note the restrictive rules do not penalize pirates, but rather Canadian consumers and businesses.

Yet behind-the-scenes, the same lobby groups that promoted SOPA in the U.S. have been pushing for drastic changes to the Canadian bill would make it even more restrictive by limiting new consumer rights, expanding potential liability, and importing provisions similar to those found in SOPA.

For example, the music industry has asked the government to insert language similar to that found in SOPA on blocking access to websites, demanding new provisions that would "permit a court to make an order blocking a pirate site such as The Pirate Bay to protect the Canadian marketplace from foreign pirate sites." Section 102 of SOPA also envisioned the blocking of websites.

Several lobby groups, including the music, movie, and entertainment software industry also want language similar to that found in Section 103 of SOPA, which spoke of sites "primarily designed or operated for the purpose of...offering goods or services in a manner that engages in, enables, or facilitates" infringement. That section raised fears that it could be used to shut down mainstream sites such as Youtube.

The lobby groups have denied that sites like Youtube are the intended target, yet ongoing litigation between Google (which owns Youtube) and Viacom in the U.S. demonstrates how the provision can easily be misused and could create a huge chill in the investment and technology community in Canada.

Music industry lobbyists are perceived to be major supporters of Bill C-11, but few groups have demanded more changes to the proposed legislation. In fact, when industry lobbyists appeared before a House of Commons committee reviewing the bill, one Member of Parliament commented that their demands were "substantial" and "anything but minor."

In addition to the SOPA-style reforms,, the industry is seeking new injunction powers to remove content from websites and wants Internet providers to implement policies on allegedly infringing subscribers that could lead to the termination of their Internet service.

The list of changes would also overhaul many of Bill C-11’s consumer focused provisions, by creating new limits on exceptions for user generated content, personal copying, time shifting (ie. recording television shows), and making backup copies. Industry lobbyists also want a cap on statutory damages for non-commercial infringement removed as well as limits on legal protections for Internet providers and search engines.

Last week, Government House Leader Peter Van Loan indicated that the government hopes to pass Bill C-11 within the next two months, suggesting that the controversial copyright bill could be placed on a legislative rocket docket. Should the government follow through on lobbyist demands, it would leave Bill C-11 virtually unrecognizable with restrictive digital lock rules, SOPA-style site blocking, and severely limited consumer exceptions.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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Will Canada - China Changes Include a Shift on Intellectual Property?

Prime Minister Stephen Harper arrived in China today for a high profile visit aimed at improving the Canada- China economic ties. Many have noted the change in tone from the Canadian government on China on rights issues, but the intellectual property story is worth noting here as well. Unlike a U.S. visit, which is likely to place IP issues at the very top of the list, the Canadian visit is unlikely to emphasize the issue. Indeed, Canada would do well to consider shifting its approach to China on intellectual property.

While China-based piracy is unquestionable a concern, Canada has too often used the issue to curry favour with the U.S. at the expense of developing the China relationship. In recent years, our support for the Anti-Counterfeiting Trade Agreement (which deliberately excluded China) and now the Trans Pacific Partnership (which also excludes China) does little to help relations. China could be a strategic ally on global IP issues as both countries face significant external pressure for reform. While compliance with international rules should be the starting point for any dialogue, focusing on the flexibility that exists at international law to address domestic concerns is in both our interests.

The biggest Canadian blunder was the decision to join a U.S. complaint against China at the World Trade Organization in 2007 alleging that China’s domestic laws, border measures, and criminal penalties for intellectual property violations did not comply with its international treaty obligations. The case was a big loss. China was required to amend parts of its copyright law but on the big issues - border measures and IP enforcement - almost all of the contested laws were upheld as valid.

More interesting are the background documents that demonstrate that the Canadian government was unable to muster credible evidence of harm among Canadian companies.

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Why ACTA Could Be As Bad As SOPA

Alexander Furnas explains in the Atlantic why the broader implications of ACTA may make it as bad as SOPA. Furnas notes "while many of the alarmists specific claims are inaccurate, ACTA exposes the systemic danger in how international intellectual property regulation has evolved over the last 20 years."

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Czech Republic, Slovakia Suspend ACTA Ratification

The Czech Republic and Slovakia have joined Poland in suspending ratification of the Anti-Counterfeiting Trade Agreement in response to mounting protests over the agreement.
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Much Ado About Panic

Kris Kotarski writes an opinion piece in the Calgary Herald that calls attention to the lobby panic that leads to legislation like SOPA and ACTA.
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Copyright bills protect 'old media'

The National Post featured an op-ed from Jesse Kline over the weekend that notes "the essential question that must be addressed going forward is whether government regulation is needed to protect industries that have failed to innovate." He says the answer is no.
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