61 Reforms to C-61, Day 61: The Mysterious Section 3

The 61 reforms to Bill C-61 project concludes with one of the most puzzling provisions in the bill.  Bill C-61 adds the following to copyright owners' basic set of exclusive rights:

in the case of a work that can be put into circulation as a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as the ownership of that tangible object has never previously been transferred with the authorization of the author in or outside Canada,

There is considerable debate among the copyright community about why this provision has been added and what it achieves.  At first blush, it appears to be a codification of the first sale doctrine – the notion that the copyright owner holds the right of first sale and after that the work may be resold without permission.  Another possibility is that the provision is designed to reverse the holding in Theberge, an important 2002 Supreme Court of Canada case in which the court rejected Quebec painter Claude Theberge's attempt to stop the transfer of his works from a poster to canvas on the grounds that there was no reproduction. 

The most disconcerting interpretation, however, is that it provides broad new rights over any tangible object of a work.  This could come into effect in any number of cases.  For example, consider the controversy over the sale of a handful of Harry Potter books before the release date.  This new provision could be used not only to stop the sales – the books are a tangible object never previously transferred with the authorization of the author – but could leave the sellers open to statutory damages for having infringed copyright by selling the book.  The same provision could similarly interfere with the grey market, where legally obtained copies of books, CDs, or other works in one country are stopped from sale in another country.  While some of these concerns may be legitimate, they can also typically be addressed by commercial agreement.  It is not entirely clear why we need such a significant reform to the Copyright Act to address the issue.


  1. I dred the thought of Harpers gov coming back after the election and pushing this thing through as is. :/

  2. It’s a stretch to think that these U.S. puppeteered chimps could think so far ahead – but – it is possible to create tangible representations of works from digital sources (3D printing as an example) – but I very much doubt the troglodytes under Harper really understood a damned thing the U.S. media lobby and Ambassador Wilkins was saying to them – they just took dictation, nodding and smiling all the way.


  3. Day 61…

    I am going to say a very big THANK-YOU to Michael as this was really amazing to see and a great resource for everyone concerned.

  4. Stop wasting time on Bill C-61
    Michael, with all due respect, this continuous parsing of Bill C-61 is a waste of time. It is not going to committee to be reviewed and amended. There is an election. The bill is dead.

    It is highly doubtful that the bill will be re-introduced in its present form, even with a majority Conservative government. And with Dion leading the charge, the prospects of the Liberals reintroducing bill C-60 [[ link ]] is nil.

    By all means continue to pressure all the parties to reveal their copyright and net neutrality policies. As voters, it is important that we know the parties’ platforms on these and other issues to make informed decisions in the voting booth. But the horse is dead. No need to keep flogging it.

  5. great job and thank you. 61 fantastic posts and we’re all a little more informed thanks to you.

  6. Marty in Ontario says:

    Thank you!
    C-61 may be fading, but the danger remains. Thanks for the inspirational series!

  7. No first-sale doctrine in Russia
    In Russia, they do not have a “first-sale doctrine”.

    If you are to import a used BMW or Toyota into the country, it may be confiscated by customs because the local trademark owner does not want you to import used cars. Firms that import branded car parts (who are not partnering and are seen as competitors by local distributors/trademark holders) and those who import used cars are upset.

    It also apply to physical persons. You come to visit Russia with an iPod bearing an Apple logo. If local Apple distributor does not want iPods to be imported, customs can confiscate it. Customs seem to have a list of trademarks, and they initiate it without the approval of trademark holders. They say “Russia has strict laws, but obeying them is optional”, because enforcement of laws is rather optional (like with these copyright cases here), so it is used to destroy competition.

    A good analysis is here:

    [ link ]

    How this insanity happened? Russia is trying to get accepted into WTO, and the government caved in to corporate interests. What is riduculous is that they won’t get into WTO in the near future and already sold away user rights.

  8. Another one on parallel imports of used cars into Russia.

    [ link ]

  9. woot
    do not forget this bill so they will not bringit back,
    whats the saying
    those that forget there past are doomed ot relive it.

    I for one do not want to relive antother bill-c6

  10. “It is not entirely clear why we need such a significant reform to the Copyright Act to address the issue.”

    For me it is more clear: it is to stop unlocked phones from being imported into Canada from countries that prohibit phone locking. Because one method of circumventing phone locking is to import unlocked phones from other countries, this provision aims to strengthen the monopolies of carriers who are local distributors of locked phones.

  11. No-one in Ottawa knows why this is in the Bill