Copyright Lobby Demands Rollback of Recent Canadian Reforms in Secretive Trade Deal

More than ten years of contentious debate over Canadian copyright law appeared to come to a conclusion in late June when Bill C-11 passed its final legislative hurdle and received royal assent. Yet despite characterizing the bill as a “vital building block”, the copyright lobby that pressured the government to impose restrictive rules on digital locks and tougher penalties for copyright infringement is already demanding further reforms that include rolling back many key aspects of the original bill.

Unlike the last round of copyright reform that featured national consultations and open committee hearings, my weekly technology law column (Toronto Star version, homepage version) notes this time the lobby groups are hoping to use secretive trade negotiations to forge legislative change. Later this week, the International Intellectual Property Alliance, an umbrella organization that represents movie, music, and software associations, will urge the U.S. government to pressure Canada to enact further reforms as part of the Trans Pacific Partnership trade negotiations.

The IIPA, which recently submitted its position on Canada’s entry to the TPP as part of a U.S. regulatory process, takes particular issue with the role of Internet providers in enforcing Canadian copyright law. The Canadian “notice-and-notice” approach, which requires providers to forward thousands of infringement allegation notices to their subscribers, strikes a balance between effective enforcement and free speech, while preserving users’ privacy.

The model has begun to attract global attention with countries such as Chile adopting it within its own domestic law. The IIPA sharply criticizes the approach, however, calling for dramatic reforms. It argues that Canadian law “fails to provide meaningful incentives for network service providers to co-operate with copyright owners to deal with copyright infringements that take place in the digital network environment.”

Instead, the copyright lobby wants Canada to implement measures that would require Internet providers “to take action to prevent recidivists from repeatedly using their services to commit copyright infringement.” The plain language demand: a termination system that would cut off Internet access for subscribers accused of infringement.

The IIPA also wants Canada to undo statutory damages changes from Bill C-11 that created a liability cap of $5,000 for non-commercial infringement. It claims that the non-commercial cap renders statutory damages “ineffective in achieving its goals of full compensation and deterrence in the online environment.”

Even with the change, Canada remains one of the only developed countries with statutory damages that create the prospect of multi-million dollar damage awards for commercial infringement. The government created the non-commercial cap because it was uncomfortable with rules that could spur thousands of lawsuits against individuals.

Bill C-11’s new consumer-focused provisions, which include exceptions for non-commercial user generated content and educational uses, also come in for criticism. Despite repeated assurances by Canadian officials that the law is compliant with international standards, the group warns against the exceptions by urging the U.S. government to remain “vigilant against any effort by Canada…to weaken or relax the 3-step test.”

On top of the criticisms of the newly enacted copyright reforms, the IIPA also wants the U.S. government to use the TPP to force Canada to enact a long list of additional changes to the law. These include extending the term of copyright, providing new powers to Canadian border guards to inspect shipments without court oversight, and introducing new criminal penalties for copyright and trademark violations.

For years, critics have warned that caving to U.S. copyright lobbying would only invite more demands in an endless cycle of unfounded claims of “weak” Canadian copyright accompanied by pressure for further domestic reforms. Even the most cynical, however, might not have predicted that a new round of demands would surface before the ink was dry on Bill C-11.

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  1. Give them an inch and they take a mile. No surprises here folks.

    Made in Canada copyright my arse, the whole TPP thing is intended.

    Thank you Harper!

  2. Andrew Stifora says:

    What happened to innocent until proven guilty. I guess Canada is no longer a free country, more like a police state, just like the United States.

  3. This is the song that never ends …
    It seems the copyright lobby is set & determined to impose harsher restrictions on user rights and more draconian measures of redress. This is their world view with the purpose to protect (or increase) their livelihoods. I do not begrudge them that as we all will work towards the same end goals in our own domains to one degree or another … the key word is degree.

    The prevailing mindset, at least in the mainstream lobby circuit, seems to be modeled after the harsh schoolmarm. Do not stray outside the box, stand in the corner and bare your knuckles for the strap. The thought being if we scare the user enough they will be too timid to do anything but buy $20 CDs like in the good old days! Now don’t take me wrong, I have always advocated for supporting artists by paying for what you use, but the ‘residential school’ model of distribution and control is not the way to win the hearts and minds of the populace.

    The ‘bad blood’ between those who selfishly just take from the creative sector, and the equally harsh response it has entailed needs to be addressed rather than digging the wounds deeper. I don’t have all the answers but trying to roll back C-11, which others think did not go far enough, is not it.

  4. Bill C-11
    I thought Bill C-11 is not in effect yet – meaning it is waiting for Order in Council?

  5. You have to ask, what is their endgame? What is the goal?

    If they demand “reform” (a change), and they criticize the change once made, what did they actually want? Is the answer “everything”? If it is, would you change anything for them?

  6. Mod this up on the political agenda
    The only way we will see a counter movement against the copyright lobby is to put the digital age firmly on the political agenda. Right now our “representatives” (ha, ha!) can get away with this because only a small group cares.

  7. margaret beresford says:

    Copyright Control
    One wonders if decrying the British/Canadian embassy cost sharing fiasco wouldn’t work here against this constant US push to dictate Canadian copyright rules. I have never seen Baird and his party members so scared as when important opinion makers began associating such cost sharing with Canada taking a less than independent role as a sovereign country. Just a thought.

  8. yeah, that’ll happen
    yeah right, the conservatives will get right on that, right after they shoot themselves in the foot. why would they go out of their way to amend a bill that JUST PASSED (isnt active yet) in a way that would cause protests and public alarm? we thought they would make c-11 like that initially but they didnt, because they like votes more than money.

  9. guy: They can always shove it into their next omnibus “budget” bill, and pass it before anyone has time to read it. In fact, I fully expect them to do this.

  10. Rob McIntyre says:

    As effective as the war on drugs.
    They want to make Canada out to be a pirates haven to pass regulations that failed to curb piracy in their own country.

    According to the Musicmetric Digital Music Index, Americans downloaded 96.68 million music files via BitTorrent in the first half of 2012.

  11. Framing the debate
    It seems as though we are allowing the extremists to frame the terms of the debate, in this topic and many others. On various national and international levels.
    As a result of allowing this, rational voices tend to be ignored, labeled as the opposite extreme, or pushed to the opposite extreme.

    It’s past time for policy makers to ignore the various players (and their vested interests) in the debate. Discount the extreme views and weigh the issues on merits to society.

  12. Jack Robinson says:

    Ostrich Nation’s Right to I Dunno… Or Care
    Michael, you are indeed one of my Mondo Canuck (Hey Kidz… Read da Book!)… But I can’t not toss my tiny Zeppelin o’ Rage and Rancour over the fact that THE VAST MAJORITY of brain-dead, Droid Candy-addicted Zomboidz out there’ don’t give a Fiddler’s Fug nor Fart About copyright issues… as long as they can download whatever Eye Candy their Junk Junkie App Addictions crave… And why every image, song, thought or potentially lucrative form of creativity or expression will gobbled up and Cheez Wiz processed by the corpulent but ever-hungry Congloms we collectively spread our cheeks to…

  13. says:
    That doesn’t imply these are involving poor quality due to cheap laid-back dresses.

  14. Congrats to you Michael!
    So glad to see you were elected to the CIRA board. Looking forward to new directions and initiatives.

  15. Explanation of the $5000 non-commercial cap?
    Can someone please give a more detailed explanation of the $5000 non-commercial cap, in layman’s terms?

    Here are a couple of sections I find interesting:

    (1.12) If the copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, they are barred from recovering statutory damages under this section from that defendant with respect to any other of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made.

    (1.2) If a copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, every other copyright owner is barred from electing to recover statutory damages under this section in respect of that defendant for any of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made.

    The first thing I wonder is if the $5000 cap is per infringement, per copyright owner, or just a flat cap? From reading these two clauses, it seems as though the infringer can only be fined $5000 for non-commercial infringement regardless of the number of infringements or number of copyright owners involved?? Is that correct?

  16. CETA in the news

    Yes there will likely be trade benefits, but the critics are also concerned with the costs. What effect will this have on prescription prices? What about harsh laws, restrictions and penalties to our digital economy. Yes we have vast natural resources but we need not sell our ability to innovate in new technology.

    The CETA negotiations are in secret, there is no public input. Worse than that when Canada finally was invited to the table they had to accept everything that was already agreed upon by the other countries … everything … without being able to raise any concerns on effects to our economy.

    The question is not what are we selling, but what are we buying?

  17. says:

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