Conservative government tables copyright bill, nods to cultural, entertainment industries

OTTAWA—The Conservative government introduced a long-awaited copyright reform bill Wednesday that proposed strict legal protections for “digital locks” on content and devices but also new exceptions for copyright users. Bill C-32, the Copyright Modernization Act, was tabled in the House Wednesday afternoon, but Heritage Minister James Moore and Industry Minister Tony Clement announced the bill at the offices of Electronic Arts in Montreal, sending a clear signal that the government is lending an ear to the content industries. “Canadian companies will benefit. For example, the video game sector, a key sector of the economy here in Montreal and elsewhere in Canada, now provides more than 14,000 jobs across Canada and represents more than $2 billion to our economy,” Moore told reporters in Montreal. The bill will implement the two Internet treaties of the World Intellectual Property Organization (WIPO) that Canada signed in 1997—the same year the last major round of copyright amendments came into force. The Entertainment Software Association of Canada (ESAC), representing companies such as Electronic Arts, Ubisoft, and Activision Blizzard, issued a release in support of the bill. “We applaud the government for showing leadership on this complex issue and we look forward to studying the bill more closely,” Danielle Parr, executive director of ESAC, said in the release. During last summer’s copyright consultation, ESAC had proposed an American-style Digital Millennium Copyright Act (DMCA) approach to copyright reform. Parr urged strong intellectual property protections and said user rights advocates do "nothing to defend the livelihood of thousands of Canadians who rely on turning great ideas into world class entertainment.” But user-groups and digital rights advocates took issue with the bill’s proposal to create strict legal protections for digital rights management—the “digital locks” on content and devices—just as the Conservative government’s former Bill C-61 proposed in 2008 in line with the DMCA. The former Liberal government’s Bill C-60 in 2005 proposed conditional anti-circumvention provisions that tied liability to the intent to infringe copyright. Michael Geist, digital rights advocate and the Canada research chair in Internet an e-commerce law at the University of Ottawa, wrote on his blog that the bill’s proposed protection for digital rights management is its central flaw—because it essentially overrides exceptions and ensures that the copyright holder “always wins.” “The foundational principle of the new bill remains that anytime a digital lock is used—whether on books, movies, music, or electronic devices—the lock trumps virtually all other rights,” he wrote. Moore told reporters Wednesday that the government wants to let “market forces” dictate whether companies put digital locks on content. He said the music industry has made a conscious decision not to apply digital rights management to mp3s because of consumer forces. “But there are other industries, like the videogame industry,” Moore said. “ industries such as these, many of whose business models depend on digital locks.” Geist also called the bill “flawed but fixable” and acknowledged that it is an improvement from the former Bill C-61. The legislation proposes exceptions for “format shifting” (copying content from one medium to another) and “time shifting” (storing content for later use) to make them legal in the Copyright Act. The legislation “contains more sensible time shifting and format shifting provisions that still feature restrictions (they do not apply where there is a digital lock) but are more technology neutral than the C-61 model,” Geist wrote. The bill also includes a so-called “YouTube exception” that permits users to remix content for non-commercial purposes so long as it is “legitimately acquired” and the new work is not a substitute for the original material. “While still not as good as a flexible fair dealing provision, the compromise is a pretty good one. Throw in notice-and-notice for Internet providers, backup copying, and some important changes to the statutory damages regime for non-commercial infringement and there are some provisions worth fighting to keep,” Geist wrote of the bill. In an interview with CTV on Wednesday, Clement said the spirit of the bill is not to create an environment in which rights holders can pursue individual consumers for personal infringements. “The focus of the bill is not the individual consumer and whether they’ve downloaded a song or two. It’s going after the ones that put that stuff online or the enablers who allow that to happen,” Clement said. Among the legislation’s provisions, it proposes: a new “making available right,” in accordance with the WIPO Internet treaties, to give copyright owners the exclusive right to control how their content is made available on the Internet; extending the term of copyright to 50 years from the time of publication of a musical performance for performers and producers; reducing the statutory damages provision in the Copyright Act for non-commercial infringements to a range of $100 to $5,000 (from $500 to $20,000); new exceptions for parody, satire, education, time shifting, format shifting, and backup copies; an exception enabling the circumvention of digital rights management for the purposes of reverse engineering for software interoperability, security testing, and encryption research; a “notice and notice” system of liability for Internet service providers, as previously proposed in Bill C-61 in 2008 and Bill C-60 in 2005, in which ISPs are not responsible for removing allegedly infringing material from the Web; and a mandatory parliamentary review of the Copyright Act every five years. The Canadian Press previously reported that the government was considering sending the bill to a special legislative committee, at which significant amendments could be made. sdoyle@thewirereport.ca

Conservative government tables copyright bill, nods to cultural, entertainment industries

Broadcast | June 3, 2010

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