Transcript www.mccarthy.ca

Osgoode Forum
Bill C-60 and Copyright Reform in
Canada-The Issues, Players and
Moving Forward
Barry B. Sookman
October, 25 2005
[email protected]
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Challenges Posed by Balancing
"Copyright", it has been rightly declared, "is one
of the great balancing acts of the law. Many balls
are in play and many interests are in conflict." To
the traditional problems of resolving such
conflicts must be added, in the present age, the
difficulties of applying the conventional model of
copyright law to subject matters for which that
model is not wholly appropriate; adjusting it to
the "implications of the online environment"; and
adapting it to international pressures that may
reflect economic and legal interests that do not
fit comfortably into the local constitutional and
legal environment.” Stevens v Kabushiki Kaisha
Sony Computer Entertainment [2005] HCA 58
Per Kirby J. (para. 169)
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Traditional View of “Politics of Compromise”
“Much modern legislation regulating an industry reflects a
compromise reached between, or forced upon, powerful
and competing groups in the industry whose interests are
likely to be enhanced or impaired by the legislation. In
such cases, what emerges from the legislative process is
frequently not a law motivated solely by the public
interest. It reflects wholly or partly a compromise that is
the product of intensive lobbying, directly or indirectly, of
Ministers and parliamentarians by groups in the industry
seeking to achieve the maximum protection or
advancement of their respective interests. The only
purpose of the legislation or its particular provisions is to
give effect to the compromise.” Stevens v Kabushiki Kaisha
Sony Computer Entertainment [2005] HCA 58 per McHugh
J. (para. 126)
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New Players Are Being Drawn
Into the Debate
“The tension between the two values is the subject of this
case, with its claim that digital distribution of copyrighted
material threatens copyright holders as never before,
because every copy is identical to the original, copying is
easy, and many people (especially the young) use filesharing software to download copyrighted works. This very
breadth of the software's use may well draw the public
directly into the debate over copyright policy… and the
indications are that the ease of copying songs or movies
using software like Grokster's and Napster's is fostering
disdain for copyright protection…” MGM v Grokster (US
Sup. Ct. June 27, 2005) per Souter J.
• Are the flames being fanned?
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New Players Have Radically Transformed The
Politics of Copyright
“I believe the DMCA is good legislation that remains
necessary today, and I don't believe copyright owners
should or will regret its enactment. But I have heard it said
by people whose views I respect that in the current political
environment - only five years after enactment - it would be
impossible to enact the DMCA today. Whatever you think of
the DMCA and I think highly of it - there is no question that
it's very controversial and has caught the attention of the
public, and - however misunderstood it might be – it is not
viewed favorably by most.” Marybeth Peters “Copyright
Enters the Public Domain” April 29, 2004 Journal, Copyright
Society of the USA Vol 51, No 4 Summer 2004
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Is Rebalancing the Law Bad?
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“Section 1201 does represent a rebalancing of
power between copyright owners and users…
Taking the last pre-DMCA balance as
somehow normatively compelled ignores the
reality that copyright “balances” are highly
contingent and contextual. The more useful
question is, regardless of past allocations of
power, whether the new balance makes sense
for authors, owners, {intermediaries}and
users.” Jane C. Ginsburg, “Legal Protection of Technological
Measures Protecting Works of Authorship: International
Obligations and the US Experience”, Columbia Public Law &
Legal Theory Working Papers, Paper 0593, 2005
Is Rebalancing the Law Bad?
“The definition of TPM in s 10(1) of the Copyright
Act was one of a number of changes to the
balances hitherto observed in Australian
copyright law, influenced by international treaty
obligations and by conclusions apparently
accepted by the Executive Government and the
Parliament. In such circumstances, complaints
about disturbance of those balances are less
convincing than they might otherwise have
been.” Stevens v Kabushiki Kaisha Sony
Computer Entertainment [2005] HCA 58
(para.199) per Kirby J.
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Is Rebalancing the Law Bad?
“Modern technology such as the Internet has provided
extraordinary benefits for society, which include faster and
more efficient means of communication to wider audiences.
This technology must not be allowed to obliterate those
personal property rights which society has deemed
important. Although privacy concerns must also be
considered, it seems to me that they must yield to public
concerns for the protection of intellectual property rights in
situations where infringement threatens to erode those
rights.” BMG Canada Inc.v John Doe 2005 FCA 193.
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Does Bill C-60 Contain the Right
Balance?
“Canada's Copyright Act needs to be updated and clarified to address the
challenges and the opportunities of the Internet and digital technology
generally.”
“Amendments will: enhance protection of works in the on-line
environment, both to address infringement and to enable the development
of new business models; enable use of the Internet as a tool for learning and
research; and, clarify Internet service provider (ISP) liability.”
“The enhanced protections will be provided through the implementation of
the obligations set out in two treaties that were concluded in 1996 at the
World Intellectual Property Organization (the “WIPO Treaties”).”
Government FAQ (March 2005)
Have these goals been met in a balanced way?
Will the amendments actually increase unauthorized uses of works and
provide protection for infringers?
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Distance Education Exception
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S30.01(1) “lesson” means any lesson, test or examination in
which a work…is copied, reproduced, translated, performed
in public or otherwise used on the premises of an
educational institution or communicated by
telecommunication to the public situated on those premises.
It could cover handouts or display of any copyright material
including articles, whole books, movies, albums, or software
source code that has been reverse engineered.
Exception permits practically any work or subject matter to
be sent over Internet to students with no guarantee that there
will not be infringement.
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Expansion of Inter-library Loan Exemption
• s30.02(5) The inter-library loan exemption has been expanded
to permit electronic distribution of a copy of printed matter
eg, scientific or technical publication, newspaper, or copies of
any other work that the end user himself/herself is able to
make under any of the fair dealing exemptions as long as they
take “measures that can reasonably be expected to prevent the
making of any reproduction of the copy other than a single
printing, its communication, or its use for a period of more
than seven days.”
• This could destroy publishers’ subscription markets. In effect,
only one library need have the work in question in its
collection.
• There are no minimum technical standards and libraries are
not accountable for unauthorized uses.
Mere Conduit Exemption for ISPs
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A person who, in providing services related to the operation of the Internet or
other digital network, provides any means for the telecommunication of a work
or other subject-matter or a reproduction of it through that network does not,
solely by reason of providing those means, infringe copyright in that work or
other subject-matter. S31.1(1)
The exemption is much broader than that recognized by the Supreme Court in
the Tariff 22 case and without the protections to rights holders contained under
DMCA or EU E-Commerce Directive.
It is not restricted to entities that provide transmission, routing, or connections.
It does not contain any requirement for content to be transmitted through the
facilities of the ISP-a communication through the Internet is enough.
It could provide protection to P2P services like Napster. See, A&M Records Inc.
v. Napster, Inc., 55 U.S.P.Q.2d 1780 (N.D. Cal. 2000) affirmed 57 U.S.P.Q.2d
1729 (9th Cir. 2001) in which Napster was found not to be exempt from
liability under the DMCA because files were not transmitted through systems it
operated.
It could provide protection to Sharman Networks. See, Universal Music
Australia Pty Ltd. v. Sharman License Holdings Ltd., [2005] FCA 1242.
Sharman was able to claim the benefit of s112(E) of the Australian Act because
the facilities it provided did not have to be “physical” facilities.
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Caching and Incidental Acts by ISPs
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“A person referred to in subsection (1) who performs any other acts related to the
telecommunication that render it more efficient, including the caching of a
reproduction of the work or other subject-matter, does not, by virtue of those acts
alone, infringe copyright in the work or other subject-matter.” s31.1(2)
The section inherits the breadth of subsection 1 and permits any other acts that
make transmissions more efficient.
There is no requirement that the purpose of the act be for the onward transmission
of files through facilities controlled or operated by or for ISP.
The subsection could permit a P2P file share service to cache or provide links or
provide direct connections to files to render communications more efficient.
The section does not contain conditions that are recognized in other jurisdictions to
protect rightsholders e.g., the provider complies with conditions on access to the
information, and the provider acts expeditiously to remove or disable access to
information upon obtaining actual knowledge of the fact that the information at the
initial source of the transmission has been removed from the network, or access to
it has been disabled, or that a court or administrative authority has ordered such
removal or disablement. DMCA s512(b)(2)(D) & (E) and EU Ecommerce
Directive Article 13(1)(B) and (E).
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Hosting Services
• Protects an ISP when it “provides digital memory” to
enable a communication”. S31.1(4)
• The Section permits businesses directly interested in
and who benefit financially from infringement and
who are fully aware of the infringing activity to
make infringing works available to public until it is
served with a court order that a work infringes.
• The knowledge requirement (a decision of a court) is
much higher than the standard required by other
jurisdictions to enable the intermediary to have the
benefit of the exemption.
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Information Location Tools (Search Engines)
• “The owner of copyright in a work or other subject-matter is not entitled
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to any remedy other than an injunction against a provider of information
location tools who infringes that copyright by making or caching a
reproduction of the work or other subject-matter.” S40.3(1)
The term “information location tool” means “any instrument through
which one can locate information that is available by means of the Internet
or any other digital network.”
Napster, Kazaa, Aimster and other P2P systems and Google’s book
digitization project could be protected.
Exemption applies even where the search engine benefits financially and
can control the copying unlike in other jurisdictions.
It also applies even where the provider has actual knowledge of
infringement until a formal notice is given.
Even where notice is given, it may be too late to stop future file sharing
once files have been shared over the Internet for any period of time.
Notice and Notice
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• Objective: A "notice and notice" regime in relation to
the hosting and file-sharing activities of an ISP's
subscribers is provided. When an ISP receives notice
from a rights holder that one of its subscribers is
allegedly hosting or sharing infringing material, the
ISP is required to forward the notice to the subscriber,
and to keep a record of relevant information for a
specified time. Government Statement
• An ISP has no takedown requirement, even when it
has or should reasonably know of infringement.
S40.1(1) and (2).
• No speedy remedy to address infringements,
especially early releases.
Exemptions Have No Conditions
For Eligibility
• There is no requirement to adopt and reasonably
implement a policy to prevent use of a service by
repeat infringers; or comply with the relevant
provisions of industry codes relating to
accommodating and not interfering with
standard technical measures used to protect and
identify copyright material.
• These concepts are in the DMCA and Australian
legislation and have been effective in ensuring
that P2P file share services like Napster &
Aimster are not eligible for DMCA safe harbours.
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Bill Does Not Enhance Ability to Pursue Purveyors
of File Share Software that Encourage
Infringement
• The 2000 Australian Act inserted into s 101 a new
subsection (1A), dealing with determination of the
question whether a person has authorised infringement.
The matters to be taken into account include:
(a) the extent (if any) of the person’s power to prevent the
doing of the act concerned;
(b) the nature of any relationship existing between the
person and the person who did the act concerned;
(c) whether the person took any other reasonable steps to
prevent or avoid the doing of the act, including whether
the person complied with any relevant industry codes of
practice.
• Section applied in the Kazaa case. Similar remdies are
available in the US if the service provider induces or
encourages infringement.
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Are the TPM Provisions Balanced?
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• The TPM provisions take a minimalist approach to
reform.
• The TPM provisions provide far less protection for
creators and rightsholders than the legislation of any
country that has implemented the WIPO Treaties.
• The amendments fall well below international standards
for the protection of TPMs and below what is required
to comply with the WIPO Treaties.
Are the TPM Provisions Balanced?
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• The Bill provides no protection against the easy and broad
availability of circumvention tools.
• The Bill provides very weak protection against circumvention
services requiring knowledge that providing the service would
result in an infringement of copyright.
• The Bill provides protection against copy control TPMs only
where the purpose of the circumvention is an infringement of
the copyright in it making it of limited if any use.
• The Bill’s remedy for distributing works that have been
circumvented adds little (if anything) to existing remedies.
The need is for a remedy against the distribution of
circumvention tools.
Conclusions
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The world of copyright has been
radically changed.
The Act needs to be recalibrated to
serve it dual functions.
Balance must be assessed by looking at
today’s challenges not what was the
previous balance.
Does Bill C-60 adequately rebalance the
Act? Does it reflect a set compromises
that fail to address real problems?
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