Copyright bill this spring; ‘our laws will trump ACTA,’ Clement says

OTTAWA--The Conservative government intends to introduce a copyright reform bill before Parliament’s summer recess, Industry Minister Tony Clement told The Wire Report. The government held national public consultations last summer on copyright reform. Over the past several months the industry and heritage ministers have been taking stock of the consultation submissions and working toward the production of legislation to amend the Copyright Act. Following an appearance before the House industry committee Thursday, Clement told The Wire Report that he intends to introduce a copyright reform bill “before June.” He did not reveal whether the bill would be similar to the government’s last proposed copyright amendments, Bill C-61, which died on the order paper in 2008. “We’re not going to get into details at this point,” Clement said. “We’re in the sausage factory part of bill making, and you’ll see what comes out the other end.” Lobby groups continue to observe ongoing negotiations surrounding the Anti-Counterfeiting Trade Agreement (ACTA), with some expressing concern that some trade agreement proposals, which have been leaked online, could affect Canada’s domestic copyright law. Canada is one of a handful of parties that has taken part in closed-door ACTA negotiations since 2007, along with the United States, the European Union, Switzerland, Japan, and a few other states. Critics call the agreement, which proposes a series of intellectual property measures, a form of US “policy laundering” intended to circumvent the work of the World Intellectual Property Organization (WIPO). But Clement suggested Canada would draft its copyright laws independent of the ACTA talks. “My position is that whatever comes out of ACTA has to be compliant with our laws,” Clement said. “Our laws will trump ACTA.” But the ACTA talks appear to put Canada in a delicate position. Although Canadian policy makers want to put forward legislation to represent its policy positions in the ACTA negotiations, they do not want to be seen tabling a bill that is too far out of step with its trading partners or the final ACTA text. The dilemma has led some observers to speculate that the ACTA proposals and its closed-door discussions are influencing Canada’s next copyright bill. Michael Geist, a digital rights advocate and Canada research chair of Internet and e-commerce law at the University of Ottawa, said Canada has an opportunity to strengthen its international bargaining position with a domestic policy bill on the table. “At this stage, I think the government would be well-advised to strengthen its negotiating position on ACTA,” he said. “As long as there’s a perception of a void on copyright policy, it makes it tougher for Canada at the ACTA negotiating table.” Two of the key copyright policy issues now facing the government are anti-circumvention measures and Internet service provider (ISP) liability. Parties to the ACTA, namely the United States, are proposing language from the US Digital Millennium Copyright Act, including a “notice and takedown” system of ISP liability, which requires ISPs to remove allegedly infringing materials identified by rights holders. The Conservative government, through Bill C-61 in 2008, and the Liberal government before it, through Bill C-60 in 2005, have rejected a notice and takedown regime. Both bills instead proposed a “notice and notice” system of ISP liability, in which rights holders notify ISPs of alleged violations on their networks, and ISPs forward the notice to the alleged copyright infringer. Both bills died on the order paper before passing. Although proposing a notice-and-notice regime could raise non-compliance issues with the ACTA, Geist said he thinks the government is likely to propose the system again this spring. “I think it would be a surprise, frankly, if they made a significant change,” he said. “It could raise issues with ACTA, and this has been one of the fundamental problems with ACTA all along.” Leaks suggest that, through the ACTA negotiations, the United States has proposed language from section 512(i) of the DMCA, which says that ISPs must "implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers." Critics say the measure could lead Canada and other ACTA parties to implement a “graduated response” or “three strikes and you’re out” policy—in which repeated online copyright infringers are cut off from the Internet. But experts add that Canada could comply with the proposed text without implementing a graduated response mechanism. Even in the United States, the wording in the DMCA does not oblige ISPs to implement graduated response or three-strikes-and-you’re out regimes. “That’s in the DMCA, but it’s never been used in the US to enforce a graduated response or a three-strikes system,” one regulatory source said. Some parties to the ACTA are also proposing the introduction of “anti-circumvention” measures that would make it an infringement of copyright to circumvent copy protection and access-control programs known as digital rights management (DRM). The Conservatives’ Bill C-61 had proposed anti-circumvention provisions aligned with the DMCA. But Bill C-60 in 2005 proposed conditional anti-circumvention provisions that tied liability to the intent to infringe copyright. Insiders add that the ACTA parties do not agree on some of the more controversial proposed measures, and that other approaches are on the table. Geist said Canada’s previous approaches to copyright policy, through bills C-60 and C-61, aren’t consistent with the United States’ proposals in the ACTA. “The point of all of this is that ACTA will ultimately become a major pressure point for Canada to implement in its domestic law,” Geist said. The regulatory source said that even if Canada was non-compliant with the ACTA, it’s not clear that there will be any enforcement mechanisms in the agreement. The ACTA could end up being only a kind of “persuasive policy document,” the source said. Parties to the ACTA have stated an intention to conclude the agreement this year, but some insiders say it's an ambitious target. sdoyle@thewirereport.ca

Copyright bill this spring; ‘our laws will trump ACTA,’ Clement says

Broadcast | March 18, 2010

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