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    Two Copyright Columns To Start the Week

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    Monday January 21, 2008
    I have two copyright-related columns out this morning.  The first, Fair Copyright Provides Prentice With Reform Roadmap, appears in the Hill Times (HT version, homepage version).  The column raises the same fair copyright proposals that I posted last week.  The second,  Copyright Reform a Potential Threat to Privacy, is my weekly Toronto Star column (Toronto Star version, Ottawa Citizen version, BBC version, homepage version).  It discusses last week's letter from Privacy Commissioner of Canada Jennifer Stoddart to Industry Minister Jim Prentice and Canaian Heritage Minister Josee Verner, warning that "privacy protections for Canadians would be weakened if changes to the Copyright Act authorized the use of technical mechanisms to protect copyrighted material that resulted in the collection, use and disclosure of personal information without consent."
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    Fair Copyright Provides Prentice With Reform Roadmap

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    Monday January 21, 2008
    Appeared in the Hill Times on January 21, 2008 as Fair Copyright Provides Prentice With Reform Roadmap

    With the continued interest in Canadian copyright reform - the Fair Copyright for Canada Facebook group has grown to over 38,000 members and the local chapters across the country are gaining significant momentum - the most frequently asked question I receive is "what do you think fair copyright reform looks like?"  In other words, we know that tens of thousands of Canadians oppose a Canadian Digital Millennium Copyright Act, but what kind of reform would or should they support?  

    Many groups have already responded to this question - librarians, teachers, universities, musicians, documentary filmmakers, artists, songwriters, and some large businesses opposed to a Canadian DMCA among them.  Although the optimal approach would be to launch a public consultation on the issue, there is reason to doubt that the government will do so.  In that case, I would point to eight key principles that should be addressed to maintain a balanced, fair approach to Canadian copyright law.  

    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.

    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.

    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.

    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 device shifting by making the current list of fair dealing categories illustrative rather than exhaustive.

    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.

    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.

    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.

    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.

    There are many other issues worthy of consideration (private copying and crown copyright among them), which is why a broad consultation is needed.  In the absence of a consultation, however, Industry Minister Jim Prentice should avoid the sparking widespread public opposition to copyright reform by opting for a balanced, made-in-Canada copyright solution.

    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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    Privacy Commissioner of Canada Warns Against Weakening Privacy Through Canadian DMCA

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    Saturday January 19, 2008

    Privacy Commissioner of Canada Jennifer Stoddart has issued a public letter to Industry Minister Jim Prentice and Canadian Heritage Minister Josee Verner warning against copyright reforms that "could have a negative impact on the privacy rights of Canadians." 

    The letter focuses on the anti-circumvention provisions, which Stoddart notes would weaken privacy protections for Canadians "if changes to the Copyright Act authorized the use of technical mechanisms to protect copyrighted material that resulted in the collection, use and disclosure of personal information without consent."  She also highlights the potential impact of mandated data retention under a notice-and-notice system, concluding that "allowing a private sector organization to require an ISP to retain personal information is a precedent-setting provision that would seriously weaken privacy protections."

    The outcry against the Canadian DMCA have largely centered on the U.S. influence in crafting the bill and its effect on education and consumer rights.  Stoddart’s public letter provides an important reminder that it is more than just copyright law that hangs in the balance as the government's plans could ultimately place Canadians' privacy at risk.

    Update:  The Stoddart letter is the focus of my technology law column this week (Toronto Star version, homepage version).  Ars Technica covers it as well. 


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    My Fair Copyright for Canada Principles

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    Thursday January 17, 2008
    With the continued interest in Canadian copyright reform - the Fair Copyright for Canada Facebook group has grown to over 38,000 members and the local chapters across the country are gaining significant momentum - the most frequently asked question I receive is "what do you think fair copyright reform looks like?"  In other words, we know that tens of thousands of Canadians oppose a Canadian DMCA, but what kind of reform would or should they support? 

    Many groups have already responded to this question - librarians, teachers, universities, musicians, artists, consumer interests, and some large businesses opposed to a Canadian DMCA among them.  Although the optimal approach would be to launch a public consultation on the issue, there is reason to doubt that the government will do so.  In that case, I would point to eight key principles that should be addressed to maintain a balanced, fair approach to Canadian copyright law. 

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