Later today, the government will table Bill C-11, the latest iteration of the Canadian copyright reform bill that mirrors the previous Bill C-32. It was widely reported this fall that the government would reintroduce the previous bill unchanged, re-start committee hearings where they left off in March (with prior witnesses not asked to return), and move to quickly get the bill passed by the end of the calendar year. That seems to be what is happening with today’s tabling and a new legislative committee to follow.
Assuming it is the same bill, the government’s talking points remain relevant as does its clause-by-clause analysis, both of which I obtained under Access to Information. From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, the book that I edited on Bill C-32 that includes contributions from 19 leading copyright experts from across Canada, is still useful and is available from Irwin Law in paper or as a Creative Commons licensed download. For those looking for background information on key elements of the bill, there is my initial analysis, a five-part series on the C-32’s digital lock provisions in a single PDF, a lengthy post on C-32’s fair dealing reforms, data on the effectiveness of the ISP provisions, and a post that puts statutory damages into perspective.
When Bill C-32 was introduced in June 2010, I described it as “flawed but fixable”, noting that there was a lot to like in the bill but that the digital lock provisions constituted a glaring problem that undermined much of the attempt to strike a balance. Months later, those remain my views. The bill has some good provisions, but the unwillingness to budge on digital locks – even as the U.S. has created new exceptions – is easily its biggest flaw.
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Two of Canada’s largest music copyright collectives warned the Bill C-32 committee against digital locks, arguing that it was unrealistic to think that the implementation of digital lock rules would increase music industry revenues. While there is much to take issue with in the CMRRA and SODRAC submission, the following […]
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The new copyright bill is scheduled to be introduced tomorrow with the government planning to restart the copyright legislative committee and pick up where it left off in March when the election call killed Bill C-32 (talking points, clause-by-clause analysis of the bill). Given the plans to restart the committee, it is worth asking what the committee actually heard during months of hearings from November 2010 to March 2011. There are obviously the transcripts of the various hearings, but the detailed recommendations typically come from direct submissions to the committee. Those have not been posted online, but I did obtain copies of all unique submissions (there were hundreds of letters from individuals) to the C-32 committee. Together with Diana Cooper, a second year law student at the University of Ottawa, we reviewed all unique submissions and tried to categorize their recommendations.
Given the number of submissions, it should come as no surprise to find that there is at least one group or person who criticizes every proposed reform and at least one that supports it. In fact, this was part of the plan. According to documents obtained under the Access to Information Act, department officials developed their committee witness list with a requirement that “at least one witness will strongly support every provision in the Bill” and a preference for witnesses “that have expressed an overall positive view”(though it recognized some may have negative views on certain aspects of the bill).
A full chart of the submissions is posted below and available for download here. There is also a second chart that tracks the submissions based the specific provision available here. Digital locks are easily the top issue raised in the submissions with many submissions calling on the government to ensure that digital locks do not trump fair dealing or that the prohibition on circumvention should be linked to infringement. In addition to many individuals, group submissions supporting this position include:
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Copyright reform is back as the government has placed the copyright reform bill on the notice paper. It is scheduled to be introduced on Thursday, alongside the privacy reform bill that also died with the March election call.
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Last week’s behind the scenes of Bill C-32 post focused on the Ministerial Q & A prepared for the joint appearance of Canadian Heritage Minister James Moore and then-Industry Minister Tony Clement. With the next copyright bill coming very soon – possibly this week – today I am posting the more detailed clause-by-clause document [118 MB PDF] provided to the Ministers that reviews every provision in the bill, explains it rationale, and identifies changes to the current law.
There are few surprises here as the document provides a helpful analysis of the bill from the government’s perspective. The exhaustive review provides a striking reminder that the government is extending liability under the Copyright Act for activities that may not even infringe copyright, thereby raising questions about the constitutionality of some provisions. This is the result of the digital lock rules, which necessitated a change in the infringement provision. The rationale notes (page 708):
The Bill introduces new causes of action (such as those relating to TPMs and RMIs) that could be used in civil lawsuits regardless of whether or not there has been an infringement of copyright.
The discussion on the digital lock provisions also emphasize that the defences to copyright infringement are not available for circumvention of a digital lock (page 718):
Generally, an owner of copyright in a work or other subject matter for which this prohibition has been contrevened has the same remedies as if this were an infringement of copyright (proposed s.41(2)). However, a contravention of this prohibition is not an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.
The government’s own words on the digital lock provision confirm that they may be unconstitutional since they fall outside the boundaries of copyright.
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