However, since government telegraphed its intentions four months ago, it is possible to provide at least a quick perspective (full caveat that this a quick read and subject to change upon reflection) on the statutory implementation of the March plan. I'll have much more to say in the days ahead but my immediate impression is that the recording industry is the big winner with an enormous basket of new rights and individual Canadians are the big losers as the bill does little to address their interests.
There is simply no denying that the lobbying efforts of the copyright owners, particularly the music industry, have paid off as they are the big winners in this bill. The bill focuses almost exclusively on creating new rights for this select group including a new making available right, legal protection for technological protection measures, legal protection for rights management information, the ability to control the first distribution of material in tangible form, new moral rights for performances, a reproduction right for performers, and an adjustment in the term of protection for sound recordings. The bill also includes a statutory notice and notice system that will virtually compel Internet service providers to notify subscribers of alleged copyright infringements and to retain relevant personal information for 6 months.
As expected, the TPM provisions do not cover devices that can be used to infringe. Rather, they target persons who circumvent for a purpose that constitutes copyright infringement or for the purposes of making a private copy. The provisions also target people who offer services to circumvent. Note that there is further limitation on users here as subsequent actions with circumvented material that prejudice the owner of the copyright is not permitted. In other words, the circumvention may be lawful, but the subsequent use of the work may not.
There are also some new limitations on what can be done with copies made under the private copying system. In particular, it becomes an infringement to knowingly sell, rent, trade, distribute or communicate copies made for private use under Section 80(1). This does not alter the right to make a personal copy (including a P2P download) but does set some tough limits on what users are entitled to do with those copies.
While the recording industry is the big winner, there are several other groups that did well including photographers, who obtain a basket of new rights including the removal of provisions focusing on their rights in commissioned photographs.
Internet service providers have also done very well. They obtain clear provisions that they are not liable for caching or other hosting of third party content. Further, there is the notice and notice system, which obligates ISPs to send a notice if there is a claim of copyright infringement and retain "records that will allow the identity of the person to whom the electronic location belongs to be determined" but they are permitted to charge for the service (the government will set the maximum fee). ISPs that fail to abide by these provisions face only statutory damages of either $5,000 or $10,000.
Anyone who has followed copyright reform history will not be surprised to learn that individual Canadians are the big losers today. Although the bill could have been worse (the U.S. version of the law is even more user-unfriendly) and there are some provisions that permit the use of digital works in an electronic and teaching environment (filled with all sorts of limitations) that is cold comfort to millions of Canadians who find themselves with a bill that does virtually nothing to address their concerns.
– Statutory damages, which are desperately in need of reform, are not touched.
– A move from fair dealing to fair use, recommended by a government study more than 20 years ago (and now being considered by Australia) is nowhere to be found.
– Elimination of crown copyright does not merit a single mention.
– Greater transparency for Canada's copyright collectives, which collect hundreds of millions each year, but provide precious little information in how that money is spent or distributed is not addressed
Even where the Canadian model provides some relief in contrast to the U.S. approach, it still does not go far enough. The best example is the anti-circumvention provisions, which provide legal protection for digital locks. The Canadian provisions are certainly better than the U.S. Digital Millennium Copyright Act since they focus on actual infringers, thereby avoiding targeting devices and providing a defense against circumvention where the purpose was not to infringe copyright.
Those provisions are good, but not good enough. For example, the Canadian bill does not provide any additional privacy protections. That suggests that Canadians that circumvent a technology protection measure in order to avoid automated collection of their personal information will be committing copyright infringement.
Moreover, as noted above, the defense expressly excludes private copying from its ambit. Therefore, Canadians may be asked to pay several times for the same work as they may pay once for the CD, once for the digital download, and once through the private copying levy for the blank CD. Attempts to circumvent protections on the CD in order to make a personal copy (a copy already paid for via the levy) will now constitute infringement in Canada.
Lots more to come in the days ahead . . .