provisions of the bill that have attracted the most notice among commentators
deal with the liability of internet service providers (ISPs) for copyright
infringement, though the proposed amendments also cover issues relating to
academic and educational use of copyright materials.
has been in the process of reforming its copyright laws for 18 years now, with
review and policy study dating further back than that — to around 1980," says
notes that the current phase of reforms — of which bill C-60 is a part —
reflects objectives identified in a 2002 Industry Canada report on the provisions and
operation of the Copyright Act.
report," says Geist, "set out short-, medium-, and long-term priorities for
future copyright reform. There are those who would characterize [bill C-60] as
just the short-term side of it; in fact, the government is planning three
separate consultation papers this fall on different issues."
summer's Supreme Court of Canada
decision in Society of Composers, Authors and Music Publishers of Canada v.
Canadian Assn. of Internet Providers resolved many issues surrounding the
liability of ISPs.
"In that case," says Geist, "the court
affirmed the role of ISPs as intermediaries."
long as an ISP acts as a common carrier, it can, in Canada, rely on its intermediary
status to avoid liability for copyright infringement.
bill provides statutory confirmation of that status."
bill has introduced a system of "notice and notice," by which a copyright
holder can notify an ISP that one of the ISP's subscribers has posted
infringing works. This notice triggers a duty on the ISP to give notice to the
alleged infringer, and to preserve the impugned information for evidentiary
purposes should the copyright holder seek to pursue an action.
describes the notice-and-notice system as "the de facto system that has been in
place for some time, and has worked — if you ask some of the ISPs — quite
system is different from the notice-and-take-down system in effect in some
other countries. Under that system, ISPs are required, upon notice, to remove
potentially infringing content upon notice by the copyright holder.
covered by the legislation, which has only received first reading, is the issue
of rights management information (RMI) tampering. RMI, says Geist, "is
essentially what you'd see on an inside book cover, but in electronic form." It's
information that ties a particular work to a copyright holder, and the
legislation provides sanctions for those who would strip it away in order to
facilitate copyright infringement.
of the debate this fall, however, will not be about RMI, but rather about
technological measures" says Geist.
have been developed that can apply what Geist describes as "a digital lock" to
works protected by copyright. In the U.S., breaking the digital lock —
regardless of the purpose for doing so — is now an offence under copyright law.
The current Canadian approach is somewhat different. Here, the mere act of
picking the lock is not enough, because in some cases the use that is then made
of the accessed material may not actually violate copyright laws. The ultimate
state of Canadian law on this point will likely be that picking the digital
lock on copyrighted works will be an offence only when it is done "for the
purpose" of violating copyright law.
educational or academic access aspects of the bill receive a less positive
review from both Geist and Myra Tawfik, a professor at the University of Windsor's
Faculty of Law who is currently working on a book about the history of Canada's
believes that in the most recent round of parliamentary hearings on the future
of copyright reform, none of the user groups, including libraries and
educators, made any inroads in shifting the status quo . . . "which is looking
at the issues from what is very much a copyright holders' point of view."
C-60's educational and academic provisions "offer less to those communities
than the common law does," says Geist.
cites the Supreme Court's 2004 CCH Canadian Ltd. v. Law Society of Upper Canada
decision, noting that it goes further than the bill C-60 provisions do. "For
example, the CCH case allowed a librarian at the Great Library to fax a copy of
a decision to a single patron, but bill C-60 allows the patron to be sent an
electronic file that can only be used for seven days."
characterizes the bill as "embarrassingly poor" on academic use issues.
says CCH "signalled how serious copyright issues have become. The court seemed
to recognize how well-organized copyright interests are, and that they were, in
fact, defining the agenda in a way that may not necessarily be appropriate from
a collective Canadian perspective."
problem with bill C-60, she says, "is that it doesn't really deal with user
issues; many of those were really left off the table."
term "user rights" has evolved because the law, at least in North
America, is steeped in the language of rights, she says. However,
the concepts of fair dealing and public interest exceptions to copyright
protection have international meaning.
adoption of a user rights concept by the Supreme Court in CCH reflected the
view of a group of disparate interests "who believe that copyright policy
should be equally about access" as it is about protection, says Tawfik.
and library rights have traditionally been dealt with, in copyright law, via a
patchwork of dedicated exceptions.
example," she says, "the Copyright Act says that I can reproduce a copyright
work on a whiteboard in a classroom . . . but what if I want to use a
PowerPoint presentation instead? Am I infringing? The law is silent on that."
specific, piecemeal amendments are not the answer, according to Tawfik.
Parliament seems content, she notes, to look for ways to apply existing
exceptions to new contexts — such as the Internet — through legislation like
bill C-60, rather than to undertake a more thoroughgoing review of how these
interests are best addressed.
is very tricky right now, and the issues are much broader than could ever have
been foreseen even 15 years ago," she says.
exception-based drafting seems inadequate to address the ever-changing
technologies in this field.