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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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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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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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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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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