Review of copyright law could pit content producers against content providers

The federal government has launched a landmark review of Canadian copyright law that one Internet law expert worries could protect corporate interests at the expense of online users. In a consultation paper released late last week, the departments of Canadian Heritage and Industry Canada asked for comments on several broad-reaching issues, including the introduction of U.S.-style legislation that would make it tougher to distribute copyrighted material or to hack anti-piracy measures.The proposals are designed to reassure content producers that their work will be protected from piracy on the Internet. The Canadian Association of Broadcasters is one group applauding the government's initiative.But Michael Geist, a professor at the University of Ottawa and Internet law expert, says the government must ensure those protections do not trample on the rights of Canadians, including the right of free speech."We're going to need a grassroots effort to say, 'we're willing to pay and we're willing to put in place copyright legislation that makes sense for the Internet age. But we want to ensure that we have legislation that maintains a balance - not one that adheres solely to big companies'."The proposals are contained in A Framework for Copyright Reform which introduced two consultation papers on Internet copyright issues. The Consultation Paper on the Application of the Copyright Act's Compulsory Retransmission Licence to the Internet deals with the thorny issues raised by JumpTV.com Canada Inc (see story this issue).The other, the Consultation Paper on Digital Copyright Issues, raises 18 questions on how Canadian copyright law can help protect digital content online. The paper can be broadly divided into three areas: how copyright law can give rights-holders more control over how and when their content is distributed, whether anti-hacking measures are needed, and the extent to which ISPs can be held liable for copyright infringement.Geist says the outcome of the review will affect every Canadian who uses the Internet. He says the danger is that a parallel process examining retransmission could overshadow the broader review. At stake, he cautions, is who will control online content."The concern is not with Napster-like piracy that makes the headlines. The real concern is the taking away of rights that people enjoy today. I think this document recognizes that both those issues have to be considered." Among other concerns, he cites potential new powers that would make it easier for copyright holders to have infringing web sites shut down, and the potential stifling of free speech.Permeating the paper are two key pieces of legislation. At the heart of most of the departments' proposals is the need to bring Canada into compliance with the 1996 World Intellectual Property Organization (WIPO) treaties to which Canada is a signatory. The other is the spectre of the U.S. Digital Millennium Copyright Act (DMCA) - a contentious copyright bill passed by Congress in 1998 which extends the maximum possible protections to content creators. That bill has been criticized, especially by academics and the open source software movement, as stifling innovation and giving too much power to media giants such as AOL/Time Warner.Geist and other observers say it's unlikely the Canadian government will go as far as the U.S. The DMCA has been at the root of several high-profile copyright infringement cases. One of the more prominent is an ongoing case in which a hacker group called 2600.com is being sued by the DVD industry for publishing code that would allow Linux users to watch movies on their machines. Even linking to that code is a punishable offence under the DMCA.In another situation that made world headlines, a Princeton professor was able to crack the encryption scheme behind the Secure Digital Music Initiative. But he has yet to publish his findings for fear of being sued under provisions of the DMCA, which make it illegal to reverse-engineer copyright protection schemes. Critics of the legislation also charge that "fair use" rights to materials bought by consumers have been compromised, since they can no longer make digital copies of music or movies.Geist says the Canadian government seems to have recognized the over-reaching nature of the DMCA in its own call for comments. "One of the more important things about this document - and one of the more encouraging things about this document - is that it recognizes that the DMCA is not the WIPO treaty. It's the U.S. interpretation of what the WIPO treaty means. It seems to suggest that you don't need to go as far as the DMCA in order to be compliant with our international organizations," he says.He points out that there are two parties pressuring the Canadian government to change its legislation. The first is the world community seeking compliance with WIPO. The other is the U.S., which is working to have DMCA-type legislation applied here."There are compelling economic reasons why we would not want to embrace the same kind of standards that the U.S. has set. The U.S. is clearly the world leader in exporting this kind of content, so it makes very good policy sense for them to seek to export a policy regime that protects its content to the maximum extent possible." He adds that Canada is a net importer of content, and its legislation shouldn't be as restrictive as that in the U.S.No matter how restrictive the final amendments to the Copyright Act are made - and there is no guarantee the status quo won't hold - the government has recognized the need for some change to protect the rights of content producers. In its paper, the feds work from several given premises, including that:"Some rights holders consider that their ability to assert their copyright in relation to a work or other protected subject matter is considerably diminished in the Internet environment once the material is made available in that environment. In comparison with the analog world, Internet-based infringers are potentially more numerous, more anonymous, and may operate from within jurisdictions that provide relatively little copyright protection," the document states.That, says the consultation paper, means that content producers are deterred from making their copyright material available online - a blow for Canadian content online.The full consultation paper is available at http://strategis.ic.gc.ca/SSG/rp01099e.html. Comments on the paper are due Sept. 15.

Review of copyright law could pit content producers against content providers

Broadcast | June 28, 2001

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