Taking Stock of My Fair Copyright for Canada Principles

Several people have written over the past week to repeat a question that arose regularly last December – "what do you think fair copyright reform looks like?"  My 61 reforms to C-61 will address many needed changes to the Prentice bill, but it is simpler to point to the eight key principles that I outlined earlier this year.  While I think the principles reflect a balanced approach that is consistent with the underlying values of copyright, only one is fully reflected in Bill C-61.  The eight principles with commentary on the impact of C-61:
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.

Bill C-61 runs directly counter to this pledge as the bill quite clearly weakens the Copyright Act's fair dealing provision.  Canadians who rely on fair dealing, whether for education, creativity, or access to knowledge, may find themselves literally locked out of the user right in the digital environment.

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.

Bill C-61 takes the exact opposite approach, by presuming that all circumventions violate the law subject to a series of narrow exceptions.  The unintended consequences that have arisen in the U.S. are unquestionably headed to Canada if the bill becomes 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.

Bill C-61 bans devices that can be used to circumvent a TPM.  The limited exceptions are so narrowly drafted that the ability to use them is open to question.

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

Bill C-61 instead adopts the piecemeal approach by including time shifting and format shifting (though puzzlingly no parody exception).  This approach is less than ideal since the new exceptions are subject to host of limitations and a broader fair dealing provision would be fairer to creators, users, and business.

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.

Bill C-61 includes a notice-and-notice approach.

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.

Bill C-61 does not modernize the backup copy provision.  Indeed, the ability to format shift content such as movies is limited to videocassettes.

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.

Bill C-61 does include the $500 personal download damage award which moves the law in the general direction of statutory damages reform.  However, given the limitations on this new provision, the prospect of massive liability for individual Canadians remains.

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.

Bill C-61 does not require evidence of actual distribution, suggesting that there may significant liability without evidence of harm.


  1. Photo owners beware
    While this covers most of the bill, you fail to talk about ownership of photographs. If I get professional photo’s taken, I wish to remain the owner and not the person who took them. If they take an informal picture or pictures at a public forum then fair game. But when I commission the work it should belong to the person commissioning and not the photographer. The last thing I would want is my personal photos being used elsewhere without my consent. I guess if it was a duel copyright in which both maintained one, that would be okay as well as long as control was to the commissioning copyright holder. I guess the question is would this (Bill C-61) trump FOIP/PIPA then?

  2. Its time
    I think its time for Mr. Geist to run for MP, even if only for a short stint.

  3. Yes, it is time.
    Vote G I think you got your letters mixed up… PM maybe? 😉

  4. Perpetual copyright
    I wonder why nobody said yet about the fact that new bill doesn’t fix the problem with essentially perpetual copyright?

    With existing technologies cost of reproduction is close to 0, yet we loose our culture to corporate greed. Try to find books released just 5 years ago. Try to find old movies, or non-mainstream band records. If copyright owner doesn’t want to or lost interest in making money out of his work, why public should suffer, especially when owner is corporation. Why Mickey Mouse should feed Disney shareholders? Why creative work of musician should benefit their offsprings. How this promotes creativity if they don’t know F from C?

  5. The only perpetual copyright left in Canada is in unpublished crown works.

    There are recommendations to fix this going back at least fifty years. This issue was pressed on the policy makers and politicians repeatedly prior to the tabling of the bill. They chose — as usual — to do nothing.

    No one involved in the copyright-making process is able, or willing, or either, to wrap their heads around the posterity implications of copyright. If they can’t do their jobs, they should stand aside and let someone else try.

  6. I would really hope that anyone running for office would put someone with the knowledge & passion of Mr. Geist in the top spot of a position in charge of a Canadian Nation Broadband Policy.

  7. Doctor Who says:

    saving hitory
    Do you know that some very old installment of Doctor Who would have been lost forever if wasn’t for copies made by fans? In the past Doctor Who original tapes where reused by BBC to record other programs. Now you could think who cares about Doctor Who.
    In 47 BC a fire destroyed the library of Alexandria. It was thanks to the Arabs which have copied and translated most of the library books that we still have lots of priceless writings from that age. Copying is not always that bad.

  8. “On June 20 2006, an enthusiast called Catyuy posted a 10-minute video on YouTube. It was a montage of scenes from the 1994 BBC drama serial Takin’ Over the Asylum about an ageing wannabe DJ and double-glazing salesman called Eddie McKenna who, together with a group of patients, revives an antiquated hospital radio station at a fictional mental institution. Within a year and a half, between Catyuy and another enthusiast, called Midcirclenine, the entire six-part serial had been posted on YouTube in 10-minute chunks, in flagrant violation of Section 512(c)(3) of the US Copyright Act.

    I was the writer of that serial and had devoted three years of my life to creating it. So you can imagine how I felt when my teenage son brought this gross piracy to my attention. I was delighted.”

    Full article here, from June 4, 2008:
    [ link ]

    The author, Donna Franceschild, goes on to say that the show is now being released on DVD this month. I wonder if that would have happened if Catyuy hadn’t broken copyright laws in the first place.

  9. “The only perpetual copyright left in Canada is in unpublished crown works. ”

    Except if this bill passes. In that case, anything protected by DRM can not be copied without breaking the DRM. The DRM is protected separately from the copyright, and there is the assumption that the DRM is breakable with a reasonable amount of effort.

    The DRM keeps things out of the public domain, that seems to be the entire point of it isn’t it? The DRM gives perpetual protection.

    So does assigning copyright ownership to a corporation, since corporations don’t die. And even when the copyright has expired the previous owners continue to enforce their protections, and you need a lawyer and a lot of funds to change that.

  10. Patrick Hudson says:

    Bill C-61
    Let the people have a say to create this copyright Bill c-61, open it up to a public meeting, let the people deside what goes in it!!!!!!!!

  11. David Fedoruk says:

    Bill-C61 lacks a baisc conception of cop
    One of the problems I see is that there doesn’t seem to be any kind of underlying principle for the concept of copyright. Far to often major copyright holders seem to be attempting to equate copyright with physical property rights. This is the wrong metaphor.

    The concept is simple. Creator and creation. We see it all the time when our families grow with the addition of a new born child. Although we see this as a welcome addition to a family, in reality it begins a process of separation. The new born child is separated from its mother at birth and continues over a lifetime to create his/her own life and future.

    So our artistic and philosophical creations are the same; we conceive of them in our head, then write or record them, then perhaps publish them. But each of these steps is one of separation. The creation becomes more distant from its creator, it does not become fastened permanently with chains to the creator.

    So our copyright laws should reflect this. As time goes on, copyright protection should grow less. Copyright protection should certainly not extend beyond the life of the creator.

    Copyright should encourage the creation of new works, not encourage creators to find new ways of extracting money from what they already have created. We want song writers to be prolific, not one hit wonders!

    The term of copyright should much less that what it is now, it should be no longer than half a human life.

    Performance royalties? This is the equivalent of being paid over and over again for the same work. This is counterproductive in a society where we want all members to be contributing to the productivity and prosperity of the country. Sitting back in a chair waiting for a royalty check is not being productive.

    Session musicians are paid per session and usually at Union scale even if there is no union involved. The performing artist is just that, continuing their career by performing. That is the source of income, not royalties from a previous one. As well, radio or television broadcast of any artist is free publicity.

    I speak as a musician and former radio producer, so implementing my ideas would directly affect me!