Transcript The Role of the Competition Act in a Deregulated

Copyright Reform
Where are we now and where are we going?
The Business of Copyright
McGill IPIC Summer Courses in IP
Tuesday, August 10, 2010
Gerald (Jay) L. Kerr-Wilson
Suite 1300, 55 Metcalfe Street
Ottawa, Ontario K1P 6L5
Tel: 613-236-3882
Fax: 613-230-6423
E-mail: [email protected]
A “Brief” History of
Copyright Reform
• Dec. 1996 -- WIPO Internet Treaties (WCT & WPPT)
concluded
• Dec. 1997 – Canada signs WIPO treaties
• June 22, 2001 – Consultation Paper on Digital Copyright
Issues
• Spring 2002 – Public consultation on copyright issues
• Right of Making Available
• Legal Protection for TPMs/DRM
• Liability of ISPs
A “Brief” History of
Copyright Reform
• Oct. 3, 2002 – Supporting Culture and
Innovation: Report on the Provisions and
Operation of the Copyright Act (s. 92)
• Nov. 2002 – House of Commons Standing
Committee on Canadian Heritage launches
process of public hearings
• Oct. 2003 – Heritage Committee motion
recommending draft legislation by Feb. 10, 2004
A “Brief” History of
Copyright Reform
• Feb. 10, 2004 -- ????
• March 2004 – Status Report on Copyright
Reform submitted to Heritage Committee
• May 2004 – Committee releases Interim Report
on Copyright Reform
A “Brief” History of
Copyright Reform
• March 2005 – Government Statement on Proposals for
Copyright Reform
• June 20, 2005 – Bill C-60 introduced
• Nov. 28, 2005 – Liberal minority government defeated
• Oct. 2007 – Canada announces participation in AntiCounterfeiting Trade Agreement (ACTA) negotiations
with the United States, European Union, Japan, New
Zealand, South Korea, Mexico, Switzerland and other
countries.
A “Brief” History of
Copyright Reform
• Oct. 16, 2007 – Speech from the Throne – “Our
Government will improve the protection of
cultural and intellectual property rights in
Canada including copyright reform.”
• June 12, 2008 – Bill C-61, An Act to amend the
Copyright Act, is introduced in Parliament
• Sept. 7, 2008 – Parliament dissolved and general
election called. Bill C-61 dies on the Order Paper.
A “Brief” History of
Copyright Reform
• July 20, 2009 – Industry Minister Tony Clement and
Minister of Canadian Heritage James Moore launch a
national public consultation on copyright reform to
include public meetings, an online forum and written
submissions.
• July 20 to Sept. 13, 2009 – Public Consultations on
Copyright Reform
• March 3, 2010 – Speech from the Throne – “To
encourage new ideas and protect the rights of Canadians
whose research, development and artistic creativity
contribute to Canada's prosperity, our Government will
also strengthen laws governing intellectual property and
copyright.”
A “Brief” History of
Copyright Reform
• April 22, 2010 – Draft ACTA negotiating text is released.
• June 2, 2010 – Bill C-32, introduced by Minister of
Canadian Heritage, James Moore and Industry Minister
Tony Clement.
Anti-Counterfeiting Trade Agreement (ACTA)
• ACTA = a multilateral agreement currently being negotiated to
establish international standards on IP rights and enforcement
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Countries involved: Australia, Canada, the EU member states, Japan, South
Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US
Oct. 23, 2007 – Minister of International Trade announces Canada would
participate in preliminary discussions
June 3 to June 4, 2008 – First round of negotiations in Geneva, Switzerland
Apr. 22, 2010 – Minister of International Trade releases the Draft Negotiating
Text following the 8th round of negotiations in Wellington, New Zealand
June 28 to July 1, 2010 – 9th round of negotiations in Lucerne, Switzerland –
announced next round to take place in the US, with the aim of concluding
negotiations as soon as possible in 2010
Copyright Reform Agenda
Oct. 2002
Short Term
(1-2 years)
WCT and WPPT
ISP Liability
Access and Education
Photography
Unpublished Works
Medium Term
(2-4 years)
New Technology
Audiovisual Works
Crown Copyright
Collective Rights
Term of Protection
Ephemeral Exception
Long Term
(4+ years)
Traditional Knowledge
Databases
Performers’ Rights
Broadcast Rights
Clarification of the Act
Copyright Modernization Act
Summer 2009
• Public consultations held in 8 major cities, and online submissions
accepted. A year later, Bill C-32 introduced.
• Implement the requirements of the WIPO Internet treaties;
• Modernize the Copyright Act, congruent with technological advances;
• Approach greater technological neutrality to ensure longevity of law’s
relevance and protection for users and creators;
• Emphasis on TPMs as method of protecting creators’ rights
• Offers users more robust rights.
Issues
• Protection for Technological Protection
Measures (TPMs)
• Making Available Right
• Limitations on ISP Liability
• Limitations and Exceptions for Educational
and Personal Uses
Sources
• WIPO Internet Treaties
• WIPO Copyright Treaty (WCT)
• WIPO Performances and Phonograms Treaty (WPPT)
• Bill C-60 (Liberal legislation)
• Bill C-61 (Conservative legislation)
• Anti-Counterfeiting Trade Agreement (ACTA)
• Bill C-32 (Conservative legislation)
TECHNOLOGICAL
PROTECTION
MEASURES
TPMs
• TPMs = “digital locks” used to protect content
• Rights holders consider TPMs as essential to protecting
the legitimate markets for IP
• Access-control TPMs restrict access to content (passwordprotected services)
• Copy-control TPMs restrict the making of reproductions
of protected content
• Providing legal protection for TPMs adds an additional
layer of protection to the traditional protection provided
by copyright laws
TPMs
• In addition to preventing the infringement of
copyright, TPMs can also prevent non-infringing
uses (e.g. those uses that are fair dealing)
• Providing protection under copyright law for
access-control TPMs might have the effect of
creating a de facto “right of access”, which is not
a right generally recognized in copyright law
TPMs
WCT Article 11 – Contracting Parties shall
provide adequate legal protection and effective
legal remedies against the circumvention of
effective technological measures that are used by
authors in connection with the exercise of their
rights under this Treaty or the Berne Convention
and that restrict acts, in respect of their works,
which are not authorized by the authors
concerned or permitted by law.
TPMs
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What is “adequate” legal protection?
What are “effective” legal remedies?
What is an “effective technological measure”?
Should protection of TPMs be limited to preventing
circumvention for infringing purposes?
• Should protection prevent just acts of circumvention or
extend to devices that facilitate circumvention as well?
• Protect access-control TPMs, copy-control TPMs, both?
TPMs
Bill C-60:
• Prohibits circumvention of TPMs “for the purpose
of an act that is an infringement of copyright”
• Prohibits circumvention “services” if there is
knowledge that it will result in infringement
• Does not deal with devices
• Secondary liability where TPM has been
circumvented.
TPMs
Bill C-61:
• Prohibits all circumvention of TPMs, with specific
exceptions (e.g. law enforcement)
• Prohibits circumvention “services” and “devices”
• Prohibition applies even where there is no copyright
infringement
• Circumvention invalidates some copyright infringement
exceptions (e.g. personal copying; time shifting;
educational use of internet materials)
TPMs
Bill C-32
• Substantially similar to Bill C-61
• Defines both copy-control and access-control
TPMs.
• Prohibits circumvention of access-control TPMs,
but not copy-control TPMs.
• Circumvention of a TPM would invalidate
personal use exceptions.
TPMs
• ‘Circumvent’: to descramble, decrypt, avoid, bypass,
remove, deactivate or impair TPMs, without authority
• ‘TPM’: technology, device or component that controls
access to a work or restricts any acts only the
author/owner of the work may do.
• Prohibits offering circumvention services to public,
manufacturing, importing, selling, renting or providing
devices, technologies or components whose primary
purpose is circumvention or that are commercially
insignificant except to break locks.
TPMs
Bill C-32
• Owners of copyright entitled to all remedies where a TPM
has been unlawfully circumvented.
• Exceptions: ex: for software interoperability, national
security, investigations pursuant to federal law, conducting
encryption research, unlocking wireless devices.
TPMs
• Who should bear the risk?
• Overly broad protection serves the interests of
rights holders but risks preventing non-infringing
access to, or use of, content
• Overly narrow protection limits the possibility of
adverse unintended consequences, but might not
provide rights holders the legal tools they need to
respond to infringement.
TPMs
• It might be difficult, in the abstract, to determine
if a proposed legislative scheme will provide
“adequate legal protection” and “effective legal
remedies”, without prohibiting non-infringing
access and uses
• Really requires the provisions to be enacted and
“road tested” to conclude that they are too narrow
or too broad.
TPMs and ACTA
Article 2.18 – Enforcement Procedures in the Digital Environment
• Narrows Canada’s flexibility to implement legislation on TPMs:
• Section 4 under Article 2.18 would require parties to provide legal
remedies for:
• The unauthorized circumvention of TPMs
• The manufacture, importation, or circulation of a device that has a
predominant function of circumventing a TPM
• The legal remedies may consist of civil remedies and/or criminal
penalties in cases of wilful conduct
MAKING
AVAILABLE
RIGHT
Making Available Right
• Copyright has traditionally recognized two
distinct rights – reproduction rights and
performing rights.
• The internet blurs the distinction between these
rights. It can be used as both a broadcast medium
and a channel for distributing copies of works.
• The challenge is to provide rights holders with
exclusive rights without creating unnecessary
duplication.
Making Available Right
• “Making available” is the phrase used to describe
the use of content on the internet in neutral terms
without reference to an explicit underlying right.
• Copyright should support the economic
exploitation of rights in a legitimate market, and
also provide rights owners with the means to
address infringing uses.
Making Available Right
• WCT Article 8 – … authors of literary and
artistic works shall enjoy the exclusive right of
authorizing any communication to the public of
their works, by wire or wireless means, including
the making available to the public of their works
in such a way that members of the public may
access these works from a place and at a time
individually chosen by them.
Making Available Right
• WPPT Article 14 – Producers of phonograms
shall enjoy the exclusive right of authorizing the
making available to the public of their
phonograms, by wire or wireless means, in such a
way that members of the public may access them
from a place and at a time individually chosen by
them.
Making Available Right
The “Umbrella Solution” -- Ficsor
“The idea was to leave it to Contracting Parties to
decide through the recognition of which existing
or newly established right they would implement
the exclusive right to be granted in respect of such
acts (such as the right of distribution, the right of
communication to the public, a combination
thereof, or a new interactive ‘making available’
right).”
Making Available Right
Bill C-60:
• Follows the structure of the Treaties.
• Right for authors explicitly included in the right
to communicate to the public by
telecommunication
• New right for performers and sound recording
makers which is distinct from the right to
remuneration for communication to the public
Making Available Right
Bill C-61:
• No explicit right for authors – considered covered by
existing right of communication to the public by
telecommunication
• New exclusive right for performers and sound recording
makers to communicate to the public by
telecommunication “in a way that allows a member of the
public to access it from a place and at a time individually
chosen by that member of the public”
Making Available Right
Bill C-61:
• New rights for performers and sound recording
makers are distinct from existing right to
equitable remuneration that applies to radio
broadcasts.
• In order to enforce new rights, a collective would
have to file a tariff with the Copyright Board.
Making Available Right
Bill C-32
• Making available explicitly included in scope of
communication to the public by telecommunication.
• New rights for performers to fix sound recordings and for
sound recording makers to make works available to public
in manner that allows public to access the work later.
• Right right for performers and sound recording makers
distinct from existing communication right to
remuneration.
• Subject to certification of tariff by Copyright Board.
LIMITED
LIABILITY
OF ISPs
Limited Liability of ISPs
• Not a requirement of the WIPO Treaties
• Inextricably linked to copyright reform
• Need to clarify the limits on liability for ISPs acting
as intermediaries
• Need to establish an appropriate role for ISPs in
responding to complaints of allegedly infringing
activity
Limited Liability of ISPs
Bill C-60
• Exemption from copyright liability with respect to
intermediary functions
• Notice & Notice system to make customer aware
of infringement allegations
• Customer information only provided pursuant to a
court order
Limited Liability of ISPs
Bill C-61
• Exemption from copyright liability with respect to
intermediary functions
• Notice & Notice system
• ISP required to retain customer information for at
least 6 months after notice is received
Limited Liability of ISPs
Bill C-32
• ISPs and search engines are neutral intermediaries
and thus not liable for subscribers’ copyright
infringing uses
• Clarifies that caching and hosting by digital
memory (cloud computing) is not infringing
• Notice and notice
Limited Liability of ISPs and ACTA
Article 2.18 – Enforcement Procedures in the Digital Environment
• Requires parties to ensure enforcement procedures and “expeditious”
remedies are available to prevent and deter infringement
• Draft Negotiating Text currently contains two options within Article
2.18 that include various conditions ISPs would have to meet in order
to limit their liability:
• I.e., requiring ISPs to remove or disable access to infringing activity
• I.e., “adopting and reasonably implementing a policy to address the
unauthorized storage or transmission of materials by copyright or
related rights”
LIMITATIONS AND
EXCEPTIONS
EDUCATIONAL AND
PERSONAL USES
Limitations and Exceptions to Copyright
Educational Uses
Bill C-60
• Works covered by collective reprographic licence
may be digitally reproduced and communicated;
same royalties payable unless an electronic use
licence is available
• Museums and libraries may provide digital copies
to other locations, but only if measures taken to
prevent reproduction or use for more than 7 days
Limitations and Exceptions to Copyright
Educational Uses
Bill C-61
• Educational institutions exempt from criminal charges for
circumventing TPMs
• Works available on the Internet may be reproduced,
communicated, performed if source is identified (unless
TPM, notice prohibits)
• Works covered by reprographic licence may be digitally
reproduced and communicated; same royalties payable
Limitations and Exceptions to Copyright
Educational Uses
Bill C-32
• Adds ‘education’ to fair dealing and expands permissible
uses of copyright works in educational setting
• Works available online, and sound recordings and film
may be copied, communicated, performed if source is
identified.
• Greater flexibility for distance/online learning by
permitting digital copying and telecommunication to
public (students) of copies
Limitations and Exceptions to Copyright
Educational Uses
• Educational institutions may not circumvent
TPMs
• Works covered by reprographic licence may be
copied and communicated; same royalties
payable. Must take measures to prevent users
from making further copies or communicating
works.
• Digital reproduction according to licence.
Limitations and Exceptions to Copyright
Personal Uses
Bill C-60
• Personal use of commissioned photographs or
portraits is exempt
• Private copying of music allowed, but introduces
secondary liability for the sale, distribution,
communication and performance of such copies
Limitations and Exceptions to Copyright
Personal Uses
Bill C-61
• Time- and format-shifting of works in certain
formats allowed, subject to several restrictions
• $500 limit on statutory damages for all violations
committed for private purposes (does not apply to
TPM circumvention)
Limitations and Exceptions to Copyright
Personal Uses
Bill C-32
• Protection for non-commercial private copying and
making back-up copies
• Use of legally obtained works in user-generated content
that doesn’t affect market for original works
• Added categories of parody, satire and education to fair
dealing
Conclusion
• The issues confronting policy makers are complex
and require making a number of fundamental
decisions about the scope of protection.
• Providing too much, or too little, copyright
protection can have serious consequences for
stakeholders, including consumers.
Conclusions
• The pace of copyright reform means that
stakeholders are unwilling to have their issues
dealt with during the “next round” of reform.
• No copyright reform package can possibly please
everyone. The best outcome is that everyone is a
little bit annoyed, but no one is really outraged.
• “Ordinary Canadians” have to be part of the
process for copyright reform to be legitimate.