Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Copyright

Behind the Scenes of Bill C-32: The Committee Submissions

The new copyright bill is scheduled to be introduced tomorrow with the government planning to restart the copyright legislative committee and pick up where it left off in March when the election call killed Bill C-32 (talking points, clause-by-clause analysis of the bill). Given the plans to restart the committee, it is worth asking what the committee actually heard during months of hearings from November 2010 to March 2011. There are obviously the transcripts of the various hearings, but the detailed recommendations typically come from direct submissions to the committee. Those have not been posted online, but I did obtain copies of all unique submissions (there were hundreds of letters from individuals) to the C-32 committee. Together with Diana Cooper, a second year law student at the University of Ottawa, we reviewed all unique submissions and tried to categorize their recommendations.

Given the number of submissions, it should come as no surprise to find that there is at least one group or person who criticizes every proposed reform and at least one that supports it. In fact, this was part of the plan. According to documents obtained under the Access to Information Act, department officials developed their committee witness list with a requirement that “at least one witness will strongly support every provision in the Bill” and a preference for witnesses “that have expressed an overall positive view”(though it recognized some may have negative views on certain aspects of the bill).

A full chart of the submissions is posted below and available for download here. There is also a second chart that tracks the submissions based the specific provision available here. Digital locks are easily the top issue raised in the submissions with many submissions calling on the government to ensure that digital locks do not trump fair dealing or that the prohibition on circumvention should be linked to infringement. In addition to many individuals, group submissions supporting this position include:

September 28, 2011 — 6 comments — News

Copyright is Back as Bill To Be Tabled on Thursday

Copyright reform is back as the government has placed the copyright reform bill on the notice paper. It is scheduled to be introduced on Thursday, alongside the privacy reform bill that also died with the March election call.

September 27, 2011 — 9 comments — News

Behind the Scenes of Bill C-32: Govt’s Clause-By-Clause Analysis Raises Constitutional Questions

Last week’s behind the scenes of Bill C-32 post focused on the Ministerial Q & A prepared for the joint appearance of Canadian Heritage Minister James Moore and then-Industry Minister Tony Clement. With the next copyright bill coming very soon – possibly this week – today I am posting the more detailed clause-by-clause document [118 MB PDF] provided to the Ministers that reviews every provision in the bill, explains it rationale, and identifies changes to the current law.

There are few surprises here as the document provides a helpful analysis of the bill from the government’s perspective. The exhaustive review provides a striking reminder that the government is extending liability under the Copyright Act for activities that may not even infringe copyright, thereby raising questions about the constitutionality of some provisions. This is the result of the digital lock rules, which necessitated a change in the infringement provision. The rationale notes (page 708):

The Bill introduces new causes of action (such as those relating to TPMs and RMIs) that could be used in civil lawsuits regardless of whether or not there has been an infringement of copyright.

The discussion on the digital lock provisions also emphasize that the defences to copyright infringement are not available for circumvention of a digital lock (page 718):

Generally, an owner of copyright in a work or other subject matter for which this prohibition has been contrevened has the same remedies as if this were an infringement of copyright (proposed s.41(2)). However, a contravention of this prohibition is not an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.

The government’s own words on the digital lock provision confirm that they may be unconstitutional since they fall outside the boundaries of copyright.

September 27, 2011 — 110 comments — News

Copyright Board Rejects Bid For Transactional Licences

The Copyright Board of Canada has rejected a request by the AUCC to require Access Copyright to issue transactional or pay-per-use licences. The refusal to issue such licences, which reflect an effort by universities to license the use of works, is likely to lead to universities seeking new alternatives for […]

September 27, 2011 — 3 comments — News

Behind the Scenes of Bill C-32: The Complete Ministerial Q & A

With the House of Commons back in session this week, it should not take long for copyright reform to reappear. Canadian Heritage Minister James Moore has already indicated the bill will be reintroduced unchanged from Bill C-32 and that the legislative committee will pick up where it left off without the need to hear from any persons or groups who appeared under Bill C-32. That suggests things could move very quickly with a few sessions and a march to passing the bill before the end of 2011.

My posts in the months leading up to the bill gave some sense of what was likely on the way and more recently I’ve written on the Wikileaks cables that demonstrate the remarkable U.S. influence over the Canadian copyright agenda. I’ve now obtained a series of documents that provide some useful insights into the behind-the-scenes work within the government and the C-32 legislative committee. While access-to-information requests typically exclude information about government bills, the death of Bill C-32 meant the information was fair game. Over the next week, I plan daily posts of various documents including the government’s full clause-by-clause analysis, its C-32 committee witness strategy, and an analysis of the submissions provided to the committee by dozens of groups and individuals.

The series starts with the complete question and answer document [15 MB PDF] prepared for Ministers Moore and Clement for their committee appearance in November 2010 (Scribd version embedded below). The document covers a wide range of anticipated questions and the official government response to each. The answers will not surprise as anyone following the issue will have heard the Ministers and other MPs repeat them regularly. Nevertheless, the more interesting scripted responses to key questions include (with some context in square brackets):

September 21, 2011 — 37 comments — News