Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
In recent weeks, there has been growing talk of the need for the Toronto Maple Leafs to engage in full scale demolition of the current roster (as a long-suffering Leaf fan, I approve). The call for an overhaul comes as fans recognize that minor tinkering has resulted in years of mediocrity and that real change requires more drastic reforms. While the Leafs and the Copyright Board of Canada operate in entirely different worlds, they share a key similarity: the desperate for a complete reset.
The problems with the Copyright Board have been well-chronicled: the industry has been unhappy with many of its decisions (see the Tariff 8 decision), its rulings on fair dealing have been firmly rejected by the Supreme Court of Canada (“flawed”, “unreasonable” and “skewed” were some of the comments), it has been forced to admit errors that resulted in procedural unfairness, its processes are flawed, its decision making takes years, and the public is largely excluded from the process. As I noted last year:
Last month, there were several Canadian media reports on how the work of Ian Fleming, the creator of James Bond, had entered the public domain. While this was oddly described as a “copyright quirk”, it was no quirk. The term of copyright in Canada is presently life of the author plus an additional 50 years, a term that meets the international standard set by the Berne Convention. The issue of extending the term of copyright was discussed during the 2009 national copyright consultation, but the government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada – EU Trade Agreement, but that too was effectively rebuffed.
If new reports out of Japan are correct, however, Canada may have caved to U.S. pressure to extend copyright term. The U.S. extended its term to life plus 70 years in 1998 in response to demands from the Disney Corporation (Mickey was headed to the public domain) and has since pressured other countries to match. NHK reports that a deal on copyright term has been reached within the TPP with countries agreeing to a life plus 70 term. Alongside Japan, Malaysia, New Zealand, and Vietnam (the TPP countries that adhere to the Berne standard), it appears that Canada has dropped its opposition to the change.
The misuse of Canada’s new copyright notice-and-notice system has attracted considerable media and political attention over the past week. With revelations that some rights holders are requiring Internet providers to send notifications that misstate the law in an effort to extract payments based on unproven infringement allegations, the government has acknowledged that the notices are misleading and promised to contact providers and rights holders to stop the practice.
While the launch of the copyright system has proven to be an embarrassment for Industry Minister James Moore, my weekly technology law column (Toronto Star version, homepage version) notes that many Canadians are still left wondering whether the law applies to Internet video streaming, which has emerged as the most popular way to access online video.
As the misuse of the Canada’s copyright notice-and-notice system continues to attract attention, Industry Canada has taken the first step to try to alleviate public concern. The department has posted an advisory on the notice-and-notice system which seeks to assuage consumer concern, noting that U.S. copyright penalties do not apply in Canada and that the statutory damages cap for non-commercial infringement is C$5000. It also states:
- Receiving a notice does not necessarily mean that you have in fact infringed copyright or that you will be sued for copyright infringement.
- The Notice and Notice regime does not impose any obligations on a subscriber who receives a notice and it does not require the subscriber to contact the copyright owner or the intermediary.
This is important information that provides much needed context for the notices. As I noted last week, some Internet providers are forwarding similar information to their subscribers.
Last week I posted on how Rightscorp, a U.S.-based anti-piracy company, was using Canada’s new copyright notice-and-notice system to require Internet providers to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.
The revelations attracted considerable attention (I covered the issue in my weekly technology law column – Toronto Star version, homepage version), with NDP Industry Critic Peggy Nash calling on the government to close the loophole that permits false threats. Nash noted that “Canadians are receiving notices threatening them with fines thirty times higher than the law allows for allegedly downloading copyrighted material. The Conservatives are letting these companies send false legal information to Canadians in order to scare them into paying settlements for movies or music no one has even proved they’ve actually downloaded.”
With the notices escalating as a political issue, Jake Enright, Industry Minister James Moore’s spokesman, said on Friday the government would take action. Enright said that “these notices are misleading and companies cannot use them to demand money from Canadians”, adding that government officials would be contacting ISPs and rights holders to stop the practice.