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This week's Focus

|Written By Mark Bourrie - Law Times

Michael Geist, who holds the Canada Research Chair in Internet andE-commerce Law at the University of Ottawa, Faculty of Law, noted thatHeritage Minister Liza Frulla unveiled the Copyright Act changes at anHMV music store near Parliament Hill.

'Groups that are not normally involved in the copyright debate will see that this new Copyright Act affects them,' says Michael Geist.
'Groups that are not normally involved in the copyright debate will see that this new Copyright Act affects them,' says Michael Geist.

Changes to the Copyright Act are expected to generate hot debate when hearings on the bill begin next fall.

Just before the spring session of Parliament ended, the federal government unveiled bill C-60, its long awaited digital copyright reform bill.

"I think that says something about who benefits from this bill. It would have been much better if they had written amendments that could have been announced at a library or a laboratory," Geist said.

Geist is editing a book of 20 academic papers about the new copyright rules. The chapters have been written by academics and lawyers across the country. Geist says the book will come out under a "creative commons" licence, allowing greater sharing of its contents.

"The 1997 Copyright Act amendments are supposed to have been the biggest lobbying effort ever, but I think that lobbying is going to be small potatoes compared to this.

"The government has chosen to divide up 'fair dealing' rights, making exemptions for teachers and librarians. In the U.S., consumers have far more rights under the fair-use system, and I think our Supreme Court was driving at that in their recent decisions."

Geist said this bill matters to everyday Internet users.

"It affects millions of individual Canadians. Groups that are not normally involved in the copyright debate will see that this new Copyright Act affects them. Privacy activists, security consultants, and a lot of other everyday Canadians are going to see that copyright now affects them. The government is going to need a very large table for everyone to sit around."

Geist said the new Internet service provider (ISP) rules that shield ISPs from responsibility over content are "fairly reasonable." ISPs and people who post on the Internet will have more rights here than in the U.S., where the "notice and takedown" rule is having a chilling effect on free speech, he said.

"As well, the search engine provisions are supposed to provide some comfort to companies like Google and Yahoo, but there aren't enough checks and balances. A competitor [of a Web site owner] may launch a copyright-infringement lawsuit and the search engine will have to immediately remove the content."

Geist said the recording industry comes out of this as the big winner.

"The recording industry has already made it clear they plan to sue music downloaders. I don't think this bill changes much, but it does affect some peer-to-peer systems. After the Court of Appeal decision [in BMG Canada Inc. v. John Doe], the recording industry has argued they have the right to sue. In my view, downloading is somewhat legal in this country, and the threat of lawsuits hasn't had much effect except to make the recording industry look bad."

Record companies claim illegal downloading costs the music industry $700 million a year in lost CD sales in the U.S. Here, the figure is believed to be about $70 million to $100 million.

Downloaders should not expect much legal support from file-sharing companies. Grokster, based in the Carribean island of Nevis, licenses the Kazaa software that has 60 million users. Grokster argues that it is not responsible for what consumers do with its software, and says it does not break the laws of its host country.

Geist said bill C-60 purports to promote Internet-based learning by permitting schools to communicate lessons featuring copyrighted materials via telecommunication. He says the bill quickly restricts that new right, however, by requiring schools to destroy the lesson within 30 days of the conclusion of the course. Moreover, schools are required to retain, for three years, records that identify the lesson as well as the dates it was placed on a tangible medium and ultimately destroyed.

He noted that the bill allows libraries and archives to provide digital copies of materials. However, in order to do so they must limit further communication or copying of the digital files and ensure that the files cannot be used for more than seven days.

Other critics say the amendments fail to take into account the Internet's use as an education tool.

"It is disheartening that the Government of Canada will not take a stand in support of education," said Jamie Muir, Nova Scotia's education minister. "While other countries have copyright laws that support education by protecting student and teacher access to learning resources, Canada has a law that makes routine classroom activity illegal."

The amendments will allow librarians to make digital copies of data and permit some use of copyright Webcasting material, but the federal government admits issues of concern in copyright law do remain, including the educational use of publicly available Internet material and private copying.

For instance, if a teacher wants to e-mail copies of an academic paper or a press article, even if it is posted on the Internet, the teacher may have to contact the rights holder to obtain permission. In a statement issued in June, the government said it will revisit that aspect of the copyright law.

The bill puts the onus on the users of information to track down rights holders and negotiate compensation.

"A far more appropriate approach would allow people to have an implied right to use materials that are posted freely unless there are clear steps taken to make clear that they don't have full rights to use the material,'' said Geist.

David Fewer, senior counsel of the University of Ottawa-based Canadian Internet Policy and Public Interest Clinic, called the bill "an opportunity lost."

He said the amendments "are all about 'big copyright,' what they need, what they want. They have been promising a 'users' round' of copyright reform since 1988, but it never comes. All of the changes to the act have been made to strengthen the hands of corporations.

"Now, users' rights have been pared down to two things: scraps for distance learning and libraries," he said.

Fewer said he objects to the "super-fast injunction" system that allows rights holders to get court orders against search engine companies. As well, the clinic noted aspects of the bill that allow photographers to retain rights to commissioned artwork are "profoundly anti-consumer."

Unless people realize they're losing those rights if they're not signed over, "they'll see their wedding pictures in the mall or on the Internet," said Fewer. "This bill seems to be an effort to keep Hollywood and the big four music companies happy, but it does very little for Canadians."

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