Copyright reform is frequently characterized as "modernizing outdated copyright laws" (e.g. see yesterday's excellent Ottawa Citizen's masthead editorial). Leaving aside the fact that Canadian copyright law has undergone two major revisions in less than 20 years (along with several smaller changes), the reality is that the modernization is almost entirely focused on the interests' of a select few industries. Consider the issue of backup copies. Yesterday's post addressed a right of circumvention for backup copies of software, reflecting the need to preserve provisions in the Copyright Act that are nearly 20 years old. Those provisions rightly recognize that software programs are an intangible product that is susceptible to loss. Creating a backup copy right is a simple way to allow consumers to protect their investment.
If the government is serious about modernizing the Copyright Act, it could do worse than to start by modernizing the backup copy provision.
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The Citizen's lead editorial today concludes with the following: Canada's copyright regime is likely to be reviewed this fall with a view to dragging it into the 21st century. Making sure we maximize the usefulness of new technologies like Google Books should be the Harper government's highest priority; promoting the […]
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As part of a major set of copyright reforms in 1988, Canadian copyright law was amended to allow for the making of backup copies of computer programs. Section 30.6(b), the backup copy provision, is quite narrow, permitting the making of a single backup copy of a computer program "for a person who owns a copy of the computer program," provided that the copy is for backup purposes only and that it is destroyed "immediately when the person ceases to be the owner of the copy of the computer program."
This provision, which has not been tested in the courts, raises the interesting question of whether owning a copy of the computer program refers to owning the copyright in the computer program or owning the physical copy of the computer program. Many commentators believe that it refers to copyright ownership, in which case the provision is relatively meaningless given that most consumer software is licensed and not owned (although the enforceability of licenses that prohibit backup copies would make for an interesting test case).
The provision would be far more useful (and make much more sense) with the latter interpretation, however.
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