Proposed Overhaul of Canadian Copyright Law Includes Protection for Digital Locks

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OTTAWA—The Canadian government's Sept. 29 reintroduction of a proposed new copyright legislation fulfills its commitment to implement a new framework that better balances the needs of creators and users, Industry Minister Christian Paradis said Sept. 29.

Bill C-11, the Copyright Modernization Act, would amend the existing Copyright Act and bring it in line with current international standards, Paradis said in a statement. “We are confident that this bill will make Canada's copyright laws forward-looking and responsive in this fast-paced digital world,” he said.

The updating of Canadian copyright law is a key element of the government's strategy for the digital economy, as the explosive popularity of social media and new technologies, such as tablet computers and mobile devices, has changed the way Canadians create and use copyrighted material, he said. “Canadians will soon have modern copyright laws that protect and help create jobs, promote innovation, and attract new investment,” he said.

Reprieve of Earlier Proposal

Bill C-11 was reintroduced in exactly the same form as the previous Bill C-32, which died when Prime Minister Stephen Harper dissolved Parliament for a national election. Bill C-32 had received significant review at the committee consideration stage, and the new bill will continue from that point. With the returning government's solid majority in the House of Commons, the bill is expected to pass rapidly through the remaining parliamentary process.

The copyright overhaul has been broadly praised for striking an appropriate balance between the interests of copyright holders and consumers, for example by legalizing the use of personal video recorders or copying music from a purchased CD to an MP3 player. But it has drawn harsh criticism for its general anti-circumvention provision, which authorizes the use of digital locks even for copyrighted material for personal use.

Mixed Response From Stakeholders

Introduction of Bill C-11 drew predictable responses from interest groups, echoing their interventions when the previous legislative package was introduced and debated. The business sector welcomed the bill's reintroduction, but repeated requests for stronger copyright protection in some areas. Content users such as libraries and universities continued to question the need for protection of digital locks, which they said reduced the impact of the bill's fair dealing provisions.

International Trade Minister Edward Fast, meanwhile, noted that on Oct. 1 that Canada had signed the Anti-Counterfeiting Trade Agreement, the international accord on which negotiations concluded in October 2010 after more than four years of talks. “Counterfeit and pirated goods are an increasingly global problem that requires a globally coordinated solution,” Fast said in a statement.

The Canadian government must still, however, develop and pass legislation to authorize implementation of the agreement in Canada, he said. Once implemented, the legislation would ensure Canada's participation in an effective legal framework that protects the rights of artists, innovators, and entrepreneurs whose copyrighted creations are the targets of counterfeit products, he said.

Legislation Protects Digital Locks, With Exemptions

Bill C-11's proposed overhaul of the Copyright Act would establish a technologically neutral legislative framework that is more readily adaptable to the rapidly changing technological environment, Industry Canada said Sept. 29. It would fully implement the World Intellectual Property Organization's Copyright Treaty and Performances and Phonographs Treaty, helping Canadian creators become more internationally competitive, including by protecting their creations through the use of digital locks, the department said in a background document.

“Provisions in the bill strengthen the ability of copyright owners to control the uses of their on-line works in order to prevent widespread illicit use and to promote creativity, innovation, and legitimate business models. Such provisions include legal protection for rights management information and a new category of civil liability that targets those who enable on-line piracy,” it said.

“Copyright owners who choose to apply technological protection measures, such as digital locks, to prevent unauthorized access to copyrighted material will benefit from new protection against circumvention, or breaking locks. New rules will also prevent the manufacture, importation, and sale of devices that can break digital locks.”

The bill provides, however, specific exceptions to the prohibition against hacking of digital locks, including for law enforcement or national security purposes, reverse engineering for software compatibility, encryption research, personal information protection, temporary recordings made by broadcasters, access for individuals with disabilities, and unlocking a wireless device to connect it to another wireless network. The government would retain the ability to provide new exceptions in the public interest or to address anti-competitive behavior.

The bill would also prohibit the removal of rights management information, such as digital watermarks, that is used to help copyright owners track and prove illegal activity and that also provides consumers with confidence in the authenticity of a copyrighted work and certainty on the conditions for its use.

Other key elements of Bill C-11 include:

• introduction of “proportionality” in statutory damages, including reduced penalties for noncommercial violations by individuals [C$100-5,000 ($95-4,750) per infringement] compared to those for commercial violations [$500-20,000 ($475-19,000)];

• measures to permit technology companies to conduct reverse engineering for software interoperability, security testing, and encryption research;

• clarification that internet service providers and search engines are exempt from liability for copyright infringement when acting strictly as intermediaries, but requiring a “notice and notice” regime for ISPs to identify and warn subscribers accused of copyright infringement;

• measures to enshrine the right of consumers to record television, radio, and Internet programming for later use, regardless of the device or medium used, and to enable copying of legitimately acquired music, film, or other works onto any device or medium for private use or to make backup copies;

• expansion of fair dealing provisions to enable the use of copyrighted materials for educational reasons, including digital delivery of course materials;

• new powers for libraries to digitize print material;

• extension of copyright protection for sound recordings to 50 years from the time of publication of a musical performance;

• establishing photographers as the first owners of copyright on their photographs, with 50 years' protection; and

• parliamentary review of the Copyright Act every five years.

By Peter Menyasz


Bill C-11 is at http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851