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Net Copyright Reform: Its Deep in Policy Agenda

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Earlier this month the federal government delivered its much-anticipated Speech from the Throne, setting its legislative and policy agenda for the years ahead. Several days later, amid far less fanfare, it released a second legislative and policy agenda, which is must-reading for those concerned with copyright and the Internet because it establishes the government's priorities for copyright reform for at least the next five years.

When Ottawa last amended the Copyright Act in 1997, it included a provision that mandated a review of the Canadian copyright system within five years. While this review was expected to examine how well the copyright system is functioning, the 49-page document actually focuses primarily on identifying and prioritizing new policy issues.

Not surprisingly, digital copyright issues form a significant part of the review. The issues raised last year as part of the government's digital copyright consultation — technical-measures protection, digital rights management, and Internet service provider liability — are back with some hints at new policy developments.

For example, while some opponents of reform have argued that Canada does not need to reform its copyright legislation in order to ensure that it complies with the World Intellectual Property Organization's digital copyright treaties, it is apparent that the government does not agree. It argues that Canadian legislation must be amended to meet its global copyright obligations.

The review also places several new digital copyright issues on the table. It creates the disturbing prospect for "linking liability," questioning whether merely providing an on-screen link to a Web site that hosts infringing material should itself be considered copyright infringement. It also raises the possibility of broadening the definition of "fair dealing," an important exception to copyright infringement, to make it more like the fair-use doctrine found in the United States.

The controversial private copying regime, which has led to a tariff on the sale of blank media such as CDs and audio tapes, may also be heading for dramatic change. The review acknowledges that significant technological changes have occurred since the regime was introduced. Questioning its legality and noting that the levy may be too broad by capturing people who buy blank media for purposes other than copying music, the review clearly suggests that a complete overhaul may be on the way.

Even more important than the substantive issues is the establishment of a time frame for government action. Divided into short-term action (next two years), medium-term (two to four years) and long-term (beyond four), the time frame provides the clearest indicator yet of federal priorities.

In the short term, digital copyright will take centre stage as the government identifies technical-measures protection (which uses encryption techniques to limit copying of digital work) and ISP liability as key issues. Moreover, the copyright concerns of photographers and educational issues have catapulted to top priorities.

Once those issues are addressed, the government plans to turn its attention to medium-term priorities such as the term of copyright protection. Currently set at life plus 50 years in Canada (which provides authors with exclusive copyright until death plus an additional 50 years), the European Union and the United States have both extended the term to 70 years, though the U.S. extension was the subject of a constitutional challenge last week in the U.S. Supreme Court. Other medium-term priorities include the remaining digital issues and the private copying regime.

Languishing in the long-term category are two notable issues. First, the copyright that attaches to traditional knowledge, the cultural expressions of Canada's aboriginal communities, are left to this category despite growing interest in the issue worldwide. Second, database protection, already enshrined in a European Union directive and regularly the subject of legislative proposals in the United States, has been put off as a longer-term issue. This decision is bound to anger leading information providers who have lobbied hard for the creation of a new database right.

While the government's time frame will disappoint some and excite others, perhaps the most telling aspect of the review is the manner in which it was released. Industry Canada and Canadian Heritage jointly administer copyright policy in Canada, yet only Industry Canada chose to issue a press release heralding the arrival of the copyright review. Although the Canadian Heritage silence may be inconsequential, it might alternatively suggest that the two departments continue to be at odds over many substantive copyright issues.

If so, the legislative plan should not be regarded as cast in stone since all prospective copyright reform is likely to face renewed battles at every turn.

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