Bill C-61: Copyright Bill 2008

Bill C-61, introduced by the Conservative government on June 12, 2008, is An Act to Amend the Copyright Act. Bill C-61 addresses a range of issues, including anti-circumvention laws which extend legal protection to technologies (such as DRM (Digital Rights Management) technologies) that protect media, Internet Service Provider liability, performers' and photographers' rights, and establishes new distribution rights and "making available" rights for copyright owners. Bill C-61 also sets out new limited exceptions for time shifting and "private use" of media by consumers, and establishes exceptions for the educational use of the internet, digital interlibrary loan, and distance education.

The Conservative government offers a number of reasons for introducing Bill C-61, including the need to bring Canada's copyright regime into compliance with the 1996 World Intellectual Property Organization (WIPO) Internet Treaties (the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treatu). Canada has signed these treaties but has not yet ratified them.

On June 12th, the government issued a questions and answers document that outlined additional reasons why the Bill was being introduced. The reasons include:  

• The fact that it has been 10 years since the last revision to the Copyright Act and the technological shifts that have occurred since require a change in the law
• The desire to enhance copyright owners' ability to control and exploit their works in an online environment
• The need to provide ISPs, educators and consumers with "copyright rules they need to put new technologies to better use"

In reality, other factors are at work. A tremendous amount of influence has been exerted recently by the United States to pressure the Canadian government into strengthening our current copyright regime along the lines suggested by American legislation. The entertainment industry has also actively lobbied in Canada for extreme changes to Canada's copyright laws.

Anti-circumvention laws are laws that forbid users from breaking or overriding technologies that protect access to or use of digital content. Rights holders apply these digital locks to media to protect their intellectual property but also to enforce contractual terms between them and consumers. The WIPO Internet Treaties call for their signatories to enact anti-circumvention laws, but only in connection with the exercise of rights granted under copyright law.

Technological measures, also sometimes called "technical measures" or "technological protection measures" (TPMs), are electronic locks that empower copyright holders to enforce terms of access or use of digital content. Technological measures form an important part of Digital Rights Management systems, as they are the enforcement mechanism built into DRM systems.

Rights Management Information (RMI) is information that identifies, states information about, and sets terms of access and use of digital content. RMI is often used in conjunction with technological measures to prevent users from using content in unauthorized ways.

In a backgrounder document released with the introduction of the Bill, the Conservative government offered four reasons why anti-circumvention laws were being proposed:  

1. The rights of those who hold copyright must be balanced with the needs of users to access copyright works
2. The Copyright Act must provide clear, predictable and fair rules to allow Canadians to derive benefits from their creations
3. The Copyright Act should foster innovation in an effort to attract investment and high-paying jobs to Canada
4. Canada must ensure that its copyright framework for the internet is in line with international standards

Another reason these measures are likely being introduced is to bring Canada into compliance with the WIPO Internet Treaties which require signatories to legislate anti-circumvention measures.

Article 11 of the WIPO Copyright Treaty states that circumvention of a technological measure restricting a protected work is prohibited. According to the treaty, this circumvention must be connected to a right under copyright in order to apply. Canada does not at present forbid this activity. If Canada chose to ratify this treaty, it would have to enact laws which protect technological measures. Other statutory provisions required by the WIPO treaties include similar rules for rights management information, expansion of the protection afforded performers, the creation of distribution and "making available" rights, and certain changes to photographers' rights.

Canada's approach to anti-circumvention law is more restrictive than what the WIPO Internet Treaties require. Article 11 of the WIPO Copyright Treaty only forbids circumvention for purposes that are forbidden by law. Bill C-61, however, has provisions to forbid access to media protected by a technological measure, even if such access would otherwise be lawful. Additionally, C-61 would prohibit the dissemination or use of tools, devices and services that could be used to circumvent DRM, except in very limited, carefully defined situations. Canada's previous attempt under the Martin government to implement anti-circumvention laws, Bill C-60, tied liability for circumvention to copyright infringement. Under that Bill, circumvention of a technological measure for a legitimate purpose (i.e., a non-infringing purpose) carried no liability. Under C-61, an act of circumvention could result in consumer liability, outside of any intention to infringe the underlying copyright. This new approach marks a dramatic change in how anti-circumvention laws might affect the day-to-day activities of Canadians.

Section 41 of the Bill states that, subject to certain exceptions, it is illegal to to descramble a scrambled work, to decrypt an encrypted work, or to otherwise avoid, bypass, remove, deactivate or a technological measure.

The Bill outlaws providing services for circumvention as well as providing technology, devices or components for circumvention, subject to certain exceptions, such as security research or circumventing to help people with perceptual disabilities.

The Bill states that no one may remove RMI without the consent of the copyright holder if the person knows or should have known that this removal would facilitate or conceal copyright infringement. If RMI is removed, the Bill allows the copyright holder to use the same remedies that they would be entitled to for copyright infringement such as injunctions, damages, etc.

Bill C-61 is stricter than the DMCA in the sense that it requires the Governor in Council (i.e., Cabinet) to decide on exceptions to anti-circumvention rules in the future, and omits certain exceptions to liability to circumvention already in US law. Cabinet approval for additional exceptions to liability will be difficult to obtain. This contrasts with the U.S. DMCA system where exceptions are approved by the Librarian of Congress and are revised every 3 years. The Librarian has been active in granting exceptions with two in 2000, four in 2003 and six in 2006. These exceptions relate mostly to archiving works that may only be accessed by specific technological devices that are no longer manufactured or available (like old, discontinued video game consoles). There is also a specific exception for unlocking cell phones to work on any carrier as well as one to defeat malicious DRM on audio discs like Sony's rootkit.

The Bill provides for a number of exceptions to the anti-circumvention provisions:

• Law Enforcement: C-61 provides exceptions to liability for circumvention as well as for the use of services and tools necessary to circumvent a technological measure for law enforcement agencies.
• Interoperability: Software programmers may legally circumvent a technological measure, and legally use services and tools to complete this task, when trying to program interoperable software or systems. They may only circumvent if there is no copyright infringement involved in the circumvention (ie. they must possess a valid license for the software they are examining) and no other laws are broken.
• Encryption research: Encryption researchers may circumvent and use services and tools in the course of their research so as long as no copyrights are infringed and no other laws are broken.
• Protection of personal information: A person may circumvent a technological measure in to determine whether it is collecting information about them and disseminating it to a third party without their consent, and if so, to prevent it from doing so. An individual may make use of services or tools to do this, but only so long as they do not unduly impair the technological measure.
• Security: Circumvention may be permitted to test the security of a computer system as long as it is done with the permission of the owner or administrator of the system and there is no infringement of copyright. The use of tools or services is permitted in these circumstances as well.
• Persons with perceptual disabilities: A person with a perceptual disability or another person or non-profit agency acting on their behalf may circumvent a technological measure for the purpose of making the work perceptible to the disabled person. They may also make use of services and tools to undertake the circumvention.
• Broadcasting: Broadcasters may circumvent to make an ephemeral copy of a work to suit their business needs, so long as the technological measure locking the work does not allow it to be copied easily. However, it is not permitted to provide circumvention tools or services for broadcasting purposes.

The anti-circumvention rules proposed by Bill C-61 would trump Canadians' fair dealing rights in many cases. If a person wished to make a copy of a work under the fair dealing exception, they could only legally do so if the work was not protected by a technological measure (or if the dealing fell under one of the narrow categories of exceptions to liability for circumvention).

The Bill would change the way that consumers use electronic devices in important ways. A consumer cannot unlock a cell phone to use on another network or rip a copy of a DVD (circumventing CSS protection in the process) for their iPod Video or watch a region-encoded DVD on a regionless player without circumventing a technological measure. These reasonable practices would be outlawed by the new Bill if it comes into effect.

The anti-circumvention provisions in the Bill pose a barrier to security researchers. However, there are a number of exceptions which lessen this effect. There is a specific, limited exemption which allows circumvention of a technological measure for the sole purpose of assessing the security of a computer system or correcting a security flaw, with the express consent of the computer system owner or administrator. Another exception allows for encryption research so long as the copyright holder is informed. Some security researchers are concerned that the Bill will still cause a chill on research, since similar exceptions in the U.S. Digital Millenium Copyright Act have failed to prevent threats of lawsuits against security researchers engaged in research.

The anti-circumvention provisions in the Bill would have a number of negative effects on open source developers: it would make it harder to detect unauthorized use of open source code, develop open source software that is compatible with DRM-protected software, and use open source software on DRM-protected hardware. There are a few exceptions to the anti-circumvention restriction that would lessen the negative effects: as well as the security testing and encryption research exceptions, there is exception which allows circumvention of a technological measure for the limited purpose of obtaining information from a copyright protected program to ensure interoperability with other hardware and software. In order to do this legally, the developer must have a valid license for the software before undertaking to circumvent the technological measure within the software.

Bill C-61, by virtue of its anti-circumvention rules, would make the work of these individuals much harder. DRM locks on content negate any fair dealing rights which documentary filmmakers and news reporters may enjoy, making expensive rights clearance nearly the only way to air archival footage. Also, if the Bill takes effect, DVDs and any DRM-restricted digitally distributed content, including online content, could not be reproduced without the express (and usually paid) consent of the rights holders. This fact would very likely have a chilling effect on free speech in the media.

The Bill has a provision for people with perceptual disabilities that allows someone (either the individual with the perceptual disability or someone helping them) to circumvent a technological measure to make a work perceptually accessible to them. The Bill also provides an exception to the general ban on tools, services and devices when (and only when) the purpose is to circumvent to make a work accessible, and only to the point where it does not "unduly impair the technological measure."

The Bill would affect consumers in some very significant ways. The general ban on circumvention mandated by the Bill will make many common consumer practices illegal. Unlocking a cell phone, making a copy of a DVD you purchased legitimately for your Video iPod or circumventing a DVD region code would all become illegal if the Bill is passed.

There are a number of possible benefits the Bill might offer to consumers. One is time shifting: consumers may record a broadcast for later consumption, provided they abide by certain rules and restrictions and do not circumvent any technological measures in doing so. The broadcast must be received legally, there must be no circumvention of a technological measure in order to copy it and the consumer must make one copy only. Additionally, the copy may only be kept long enough to be viewed once, may not be given away and must be used for private purposes only.

Another benefit the Bill may afford consumers is format shifting. If the Bill became law, consumers could make a copy of a sound recording, a photograph, book, newspaper, periodical or video cassette (but not a DVD) as long as they abided by a number of rules. The original copy must be non-infringing copy which was legally obtained, not rented or borrowed, and the copier must own the device onto which the media is copied (no copying media for family or friends). There must be no circumvention of a technological measure and there must not be more than one copy per device (so, one iPod, one copy of a song only, for example). Copies are for private use only and may not be given away and all copies must be destroyed if the original copy is given away, rented out or sold. Finally, any media downloaded from the internet is treated differently and in this situation, the contract between the provider and consumer supercedes any existing the consumer may have.

The Bill does propose some provisions to try and protect consumer privacy from DRM systems. The Bill provides for a circumvention exception that allows a consumer to defeat a TPM to protect privacy against undisclosed communications of personal information to third parties, or disclosed third party communications that do not give the consumer the option of opting out. The exception also allows for the consumer to make use of tools or services to circumvent a technological measure so long as they do not "unduly impair" it. This term is not well defined in the Bill and would require some kind of judicial interpretation should the proposal reforms ever become law.

Bill C-61 would exempt ISPs from liability for simply providing the means for the reproduction of a copyrighted work. ISPs would also be exempted from liability for caching a work to improve network efficiency if the following conditions are met: (a) they do not modify the content, (b) they comply with the directions established by the person posting the work provided that they can be implemented automatically, and (c) they do not interfere with lawful access to usage data related to the posted work.

Bill C-61 would also offer limited immunity for ISPs for hosting content that infringes copyright. They would be exempted from liability unless they know of a decision of a court that holds that the person who has posted the content in question has infringed copyright.

No, Bill C-61 would not require ISPs to take down content or terminate subscribers on the basis of allegations of copyright infringement. ISPs would only be required to take down content pursuant to a court order. However, you should check your service agreement with your ISP to ensure that your ISP has not reserved the right to take down your content without a court order.

Instead, the Bill would provide for a notice and notice system. The notice and notice system is a formalization of present practices between ISPs and copyright holders. Under this system, a copyright owner could provide notice to an ISP of an allegation that a subscriber or customer is infringing copyright. The notice must include the claimant's name and address, the work that has been allegedly infringed and the claimant's interest in it, the location of the data, the claimed infringement, and the time and date of the commission of the claimed infringement. The ISP must then forward the notice electronically to the alleged infringer without delay and let the copyright holder know that it has done so. If the ISP is not able to forward the notice to the alleged infringer, it must report this to the complainant and explain why it hasn't been able to do so.

Under the Bill, copyright holders who write a wrongful notice would not be subject to penalties. However, ISPs that fail to pass on notice would be liable for statutory damages between $5,000 and $10,000.

The Bill does not require that ISPs monitor their customers' behaviour. However, under the notice and notice system described above, ISPs that receive an infringment notice must retain records about the alleged copyright infringer's identity. Upon receiving notice of an infringement, ISPs would be required to retain records pertaining to the identity of the alleged copyright infringer for a period of six months. If the copyright holder pursues legal action, ISPs would be required to retain these records for a year from the day that notice was received. The penalty scheme for failing to retain records would be the same as that for failing to pass on notice - ISPs would be liable for statutory damages of $5,000 to $10,000.

Internet search engines fall within the Bill's definition of "information location tools." This term includes "any tool that makes it possible to locate information that is available through the internet or another digital network." Bill C-61 would subject internet search engines to a wider range of liability than ISPs. This distinction between internet search engines and ISPs is based on an assumption that internet search engines have more knowledge than ISPs of the material that they are caching. In practice, internet search engines use automated programs (called bots or crawlers) to scan, copy, and index search results (except for material that provides automated directions not to do so).

The extended liability facing internet search engines would render some material inaccessible via searches. Like ISPs, internet search engines can receive notices of infringement from copyright holders. The Bill would limit remedies against search engines for making or communicating reproductions of copyrighted works to injunctions only. For the liability exemption to apply, the internet search engine must:

• make and cache the reproduction in an automated manner for the purpose of providing the information tool,
• communicate the reproduction for the purpose of providing the information tool,
• not modify the work,
• comply with conditions set out by the person posting the work provided that they can implemented automatically,
• not interfere with access by law enforcement to usage data related to the posted work, and
• have not received a notice of claimed infringement relating to the posted content.

These caveats would constrain internet search engines. The last requirement for limited liability, that an internet search engine has not received a notice of infringement, would effectively institute a notice and take-down system for internet search engines. Internet search engines that are risk averse would simply take down the alleged infringing content after receiving a notice to avoid greater liability. Furthermore, the requirement that internet search engines must not modify the work does not reflect current industry practices. For example, internet search engines change the format of data to allow material to be displayed on mobile devices. Internet search engines also modify data when they allow users to view PDF documents in HTML. These modifications help facilitate searches and should not be discouraged.

P2P filesharing is not directly addressed in the bill. However Bill C-61 would alter the legal landscape for Canadians' use of filesharing programs in two important ways: first, the Bill would give copyright holders a "making available" right that would make anyone "uploading" a copyrighted file without permission to do so an infringer; second, a filesharer's legal liability for copyright infringement may be limited in some specific circumstances by new caps on stautory damages.

Bill C-61 defines a new right for copyright holders: the "making available" right. This new right for authors, performers and sound recording makers would reserve for them the exclusive right to put their work in a place where it will be available to the public via telecommunications. As a result, anyone who is not the copyright holder who "makes available," without permission, another's copyrighted work (for example, by acting as a seeder for a torrent file) would be liable for copyright infringement. This would settle a long-standing question in Canadian law about whether passively offering files for download is a violation of copyright. The Federal Court made a disputed ruling in the case of BMG v. Doe which stated that merely placing files in a shared folder, to possibly be downloaded by others, did not amount to a violation of copyright. Bill C-61, by reserving the right to "make available" to the copyright holder, makes such actions a clear violation. One of the reasons that this right is being added to our Copyright Act is because Canada is a signatory to the WIPO Performances and Phonograms Treaty which binds states to offer the rights enumerated within it. Article 10 of this treaty is the making available right that has inspired the one included in Bill C-61.

Most popular filesharing programs require that users upload files at the same time as they download (or at least make them upload by default). With the addition of the making available right, Bill C-61 makes it clear that this uploading activity would be an infringement of copyright. In addition, merely making files available for others to download by, for example, storing them in a publicly accessiable "shared folder", would appear to violate the making available right.

At present, a copyright holder can choose to claim statutory damages of between $500 and $20,000 per work that has been infringed from an infringer. Bill C-61 purports to limit this to a global amount of $500 for individuals that infringed for private purposes (i.e. making a copy for themselves alone) regardless of the number of infringements. The Bill also states that in this situation only one copyright holder in a court proceeding can receive statutory damages, eliminating the possibility of multiple plaintiffs each claiming the $500 (as there is almost always a number of copyright holders in any particular song, and in any particular filesharing lawsuit). This limitation on statutory damages only applies when an individual has infringed for "private purposes" and does not apply to infringements of the "making available" right. The limit also does not apply where the person has had to unlock or strip the DRM from a copyrighted file in order to access it. Since music labels have focused past consumer lawsuits on "uploading" activities, this limitation of liability will likely prove useless to Canadians targeted in filesharing lawsuits. In these cases, the person would be subject to the existing damages rules, meaning that they could be liable for at least $500 and up to $20,000 per work (or other subject matter) infringed.

In Canada, we pay a levy on blank media such as CD-Rs. The money collected through this levy is redistributed to copyright holders. In exchange for this levy, the current Copyright Act provides Canadians with the right to make private copies of musical sound recordings on audio recording media without liability. Many of the activities covered by the private copying regime are characterized as user rights by Bill C-61's private use exceptions. While Bill C-61 does not directly change the private copying exception or the media levy, some activities that are currently covered by private copying (and so theoretically compensable) will now be covered by private use (and, theoretically no longer compensable). This should be reflected in how the Copyright Board calculates the levy in future private copying tariffs. This change may also influence future debates on the continued validity of the private copying exception.

In announcing Bill C-61, Industry Minister Jim Prentice stated that the government would be undertaking public consultations into the private copying regime in Fall 2008. Thus there could be changes coming to this legal structure which has to date offered an exemption on legal liability for the making of private copies, including downloading.

While not all musicians and songwriters have the same opinion of Bill C-61, one group, the Canadian Music Creator's Coalition (CMCC) has stated its strong opposition to the reform. The Coalition, which includes the Barenaked Ladies, Feist, Broken Social Scene, and many other Canadian artists of all sizes, has argued that anti-circumvention and potential lawsuits against fans are not what the musicians want or need. Another group, the Songwriter's Association of Canada (SAC), has expressed its pleasure that the government is working on these issues but is concerned that the approach in Bill C-61 will prevent musicians and songwriters from creating new business models and revenue generating opportunities from filesharing. It has also characterized Bill C-61 as "consumer unfriendly."

Many diverse groups have suggested approaches to filesharing that do not involve subjecting filesharers to potential legal liability. One such proposal, brought forward by the SAC, suggests that internet users pay a levy on their monthly subscription fee in exchange for receiving a right in copyright law to legally exchange music via filesharing applications. The money raised from the levy would be distributed to music creators to compensate them for the legal copying of their work. This proposal demonstrates that there were many options open to the government other than prohibiting a very commonplace activity in Canada.

The new bill offers performers and sound recording makers rights over distribution of their work to the public. Additionally, the term of copyright for both performers' performances and sound recording makers' recordings has been extended. Bill C-61 would also grant moral rights to performers of aural performances, a right which authors (but not performers) have historically enjoyed.

Bill C-61 would grant performers the right to broadcast sound recordings of their performance, a right to make the recording available for public consumption, and a physical distribution right which allows them to sell or transfer ownership of that recording. Similarly, sound recording makers would gain the rights to broadcast, make available, and distribute their work via sale or transfer of ownership.

The existing term of protection for performers' performances is fifty years from the date of first recording or, if not recorded, fifty years from the date of the performance. Bill C-61 would permit an additional fifty years of copyright from the date of the publication of a recording of a performance if the publication occurred within the 50-year performance copyright. For example, a bootleg recording of a 1960 performance could be published in 2008, and the performer would enjoy an additional fifty years of copyright (i.e., copyright in the performance, currently scheduled to expire at the en of 2010, would instead expire at the end of 2058).

For sound recording makers, the current term of protection is fifty years from the recording. Like performers, the new law would allow sound recorders an additional fifty years from the year of publication. Or, if the recording is broadcast, copyright is valid for fifty years from the year of first transmission.

Moral rights affirm that creators are inherently linked to the their work and that they have a right to the integrity of their productions. Bill C-61 would extend moral rights to performers so that performers would be associated with any performance or publishing of their work. These moral rights, like the moral rights of other creators, extend for the duration of the copyright - whether or not they still own the copyright itself.

Private copying of music recordings is, in many cases, currently allowed under copyright law, and would still be allowed under C-61. Making a copy of a music recording for private use onto an "audio recording medium" (a medium onto which audio recordings are ordinarily made) is not a violation of copyright. "Audio recording media" include recordable CDs, cassette tapes, minidiscs and digital audio tapes, and might include other media such as hard drives. However, courts have determined that an iPod "audio recording media" Bill C-61 clarifies that consumers have the right to use iPods and other private uses of content. Note that some conditions must be met: the consumer must own both the music recording, and the medium or device onto which the copy is made; only one copy may be made per device the consumer owns (e.g. one copy per iPod); the copy must not be given away, sold, rented out, played in public or broadcast in any way; all copies must be destroyed if the recording is sold or given away; and the consumer cannot circumvent a technological measure (e.g. copy protection) in order to make the copy. In the case of music which was downloaded from the internet, any contract which forbids the consumer from making a copy will override this right. These rights are also limited: C-61 would impose liability for circumventing a technological measure (e.g. copy protection) even if it was done only in order to allow a legal copy to be made.

Under Bill C-61, consumers would have the right to make private copies of videos from videocassette only. The user right does not extend to making copies of other video formats, such as DVDs, BluRay discs, or downloaded video files. Even for this limited right, there are further restrictions: you can only make copies of videocassettes you own; you can only make one copy per device you own (e.g. one VHS copy per VCR, or one copy per DVR); you cannot show the copy in public, sell it, rent it out or give it away; if the original is sold or given away you must destroy all the copies; and you cannot circumvent a technological measure in order to make the copy, so videocassettes with, for example, Macrovision anti-copy encoding cannot be circumvented. Copying to network personal video recording services would not be allowed.

Bill C-61 would give consumers rights to make private copies of photographs, books, newspapers and periodicals ("materials") onto a medium or device, so long as a few conditions are met: the consumer owns the material and the medium or device onto which the copy is made, the copy is only used for private purposes and not given away, sold, rented out, read or displayed in public, or broadcast in any way, and all copies are destroyed if the original copy is given away or sold. Only one copy may be made per device (e.g. one copy on each eBook reader you own, or one CD-ROM copy per CD-ROM drive you own), or one printout of a digital material. You may not circumvent any technological measures in order to make the copy (e.g. if you download an eBook which contains DRM that prevents you from printing it, you cannot bypass this protection). Making a copy of a website or part of a website is not allowed, unless it also qualifies as a photograph, book, newspaper or periodical. In the case of a work that was downloaded from the internet, any contract which forbids the consumer from making a copy will override this right.

Bill C-61 would give consumers a limited right to record TV and radio programs for the purpose of listening to or watching them later. Making one copy is acceptable as long as the program was received legally, the recording is used only for private purposes and is not given away, and the recording is erased or destroyed immediately after it has been watched. Making archives of recorded TV shows would be illegal. Recording is not allowed if the user had to circumvent a technological measure (e.g. a broadcast flag) in order to make the recording. These time-shifting rights do not apply to broadcasts over the internet (unless they are simultaneously broadcast via radio or TV) or to video-on-demand services, in which the contract with the service provider takes precedent, and will generally prohibit recording.

Bill C-61 would have the effect of offering legal protection to systems recognizing and enforcing the "broadcast flag". The broadcast flag is a content protection system built in to many consumer electronics and software programs that play broadcasts. Under this system, a broadcaster can embed a "flag" in a broadcast that consumers' receivers will "read" and "obey". The flag may carry instructions such as "do not copy" or "do no permit on a network". While Canada has not officially endorsed the broadcast flag, most audiovisual recording systems sold in Canada are programmed to observe the broadcast flag (including digital video recorders and software-based recording systems such as the one included in Windows Vista). However, it is currently perfectly legal to own and use non-broadcast flag-compliant systems in Canada (which include older "legacy" equipment and non-compliant software such as MythTV on the Linux operating system). These devices could arguably fall into the category of illegal circumvention devices under Bill C-61.

One of the stated purposes of Bill C-61 is to give photographers the same rights as other creators. The author of a photograph is defined by the Copyright Act as the person or corporation who was either (1) the owner of the initial negative or other plate at the time when that negative or other plate was made, or (2) the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate. In contemporary terms, the author of a photograph is usually the person who owns the film in a film camera or owns a digital camera. Under the current copyright regime, the photographer is not the first owner of copyright. Rather, the person who orders and pays for the photograph is the first owner of copyright. Bill C-61 would make the "author" of the photograph - usually, the photographyer - the first owner of copyright by default. This would not apply retroactively. The Bill would also extend the copyright terms for corporations that are the authors of photographs.

Today, consumers own copyright in the photographs that they commission, such as their wedding and baby photos. Bill C-61 seeks to change this. Under Bill C-61, consumers who commission photographs would no longer be the first holder of copyright. Instead, the ownership of copyright, including the right to copy, publish and publicly display, would belong to photographers. Consumers who commission photographs would have a personal use right - they would be allowed to use a photograph that they commissioned for "private or non-commercial purposes." This would prevent, for example, consumers from using commissioned photographs for their home business or in campaigns for elected positions.

Both the default first ownership of copyright and the personal use right can be overridden by contract. While corporations have the resources and bargaining power to protect their interests under contracts, it is unlikely that consumers will be in a good position to bargain for copyright. Photographers, on the other hand, are in a position to inform themselves of their rights over the photographs that they take. Without this knowledge, consumers are not well-equipped to bargain to hold first copyright. What is more concerning is that it would be possible for photographers to further chip away at consumer rights by using standard form contracts that dispose of the personal use right. Under the current regime, consumers are protected by having default ownership of their commissioned photographs.

The Bill C-61 proposed changes of consumer rights over commissioned photographs would also have adverse effects on historians, biographers, and archivists. It is relatively easy for these individuals to determine whether a photograph has been taken within the past fifty years. However, Bill C-61's proposed term, the life of the photographer and fifty years, is much harder to determine, making it much more difficult to determine who the copyright holder of the photograph is.

Consumers would not be able to control a photographer's use of their private photographs should Bill C-61 become law. Consumers would not be protected against public use of their privacy photographs by Canadian privacy laws. Our federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), offers individuals limited protection. PIPEDA only covers commercial uses of personal information. Only three provinces have filled this gap by legislating over non-commercial uses of personal information. In most of the country, a photographer's non-commercial uses of photographs would be completely unregulated by PIPEDA. Further, PIPEDA exempts artistic dealings from the scope of its protection entirely. Accordingly, a photographer's artistic uses of a consumer's commissioned photographs would also lie outside the scrutiny of PIPEDA. Lastly, it is possible that some commissioned photographs won't even be covered by PIPEDA. PIPEDA only protects informa tion that is linkable to the identity of a person. This means that our private pictures, such as the setting for a family function, that are not linkable to our identities would lie outside the scope of the Act. Bill C-61 would introduce contentious privacy issues.

The government could have given photographers first copyright in the context of corporate dealings only. Corporations are well equipped to bargain for copyright. Furthermore, they are not vulnerable to the unique privacy concerns that face private individuals. The government could have allowed consumers who commission photographs to retain their copyright to ensure that they are not taken advantage of.

Bill C-61 would extend the copyright term held by corporations for photographs at the expense of the public. Under the current regime, corporations that are the deemed authors of photographs hold copyright for the remainder of the year of the making of the photograph plus fifty years. Bill C-61 would extend this term to life plus fifty years. Although this term extension would not revive expired copyrights for photographs held by corporations, it would extend copyrights currently held by corporations.

The Bill includes distance education in existing and new exemptions for educational institutions. A number of exemptions that exist in the current Copyright Act require students to be "on the premises" in order for educational institutions to take advantage of them, precluding their use by distance education institutions. Bill C-61 would define "on the premises" as including students who participate via telecommunication and who are enrolled in a course. This would allow distance educators to make reproductions for instruction manually or with an overhead projector, to use such materials for examinations, to perform copyrighted works or to make a single copy of news and commentary (but not of a documentary), and to perform it for one year. Distance educators would also be able to take advantage of the Bill's provisions regarding communication by telecommunication of copyrighted works to students.

The Bill would attach a raft of conditions to the new exemptions for telecommunication by educational institutions. Educational institutions would be obliged to:  

• destroy fixations within 30 days of students receiving their final course evaluations,
• take reasonable measures to limit distribution of copies to students enrolled in the course,
• take reasonable measures to prevent students from fixing or reproducing the lesson, and
• take any measure prescribed by regulation.

Depending on what courts find to be "reasonable measures", educational institutions would likely have to institute some technological measures in order to meet these conditions. Read in conjunction with the rest of the Bill, this would prevent students from time or format shifting their lessons. This would also mean that educators could not use material from one year to the next and would be forced to re-develop their lessons every year.

The Bill would allow educational institutions that have a license to photocopy works from a collective society's repertoire to also make digital reproductions of works for educational or training purposes.

As a condition to this exemption, educational institutions would have to pay royalties for each digital copy created and abide by applicable terms of the existing photocopying license. Bill C-61 would also require educational institutions to take measures to prevent the works from being communicated to unauthorized individuals as well as to prevent more than one copy being printed or further reproduction and communication of the work. Again, depending on what courts deem to be "reasonable measures," these conditions would likely require educational institutions to implement some form of technological measures to control the copies.

There are a number of situations in which the Bill would prohibit educational institutions from taking advantage of the digital copies exemption. First, if there is a digital reproduction license in place, it would take precedence over this exemption. Second, if the copyright board has created a general tariff to compensate the rightsholders, educational institutions would not be able to make a digital copy. Third, the exemption would not apply if the collective society informs an educational institution that the copyright owner does not want to authorize the copying of a work. It should be noted, however, that unless rights holders explicitly express their wishes to the contrary, the Bill would deem them to permit digital copies of works when they enter into photocopying agreements.

Bill C-61 would place limits on the amount of royalties a collective society could collect for digital copies made pursuant to the digital copies exemption. If the educational institution has a digital reproduction license or a license permitting photocopying of the work or one of the "same category," the limit would be the amount of royalties payable under the license. Further, the copyright owner would be barred from recovering damages against persons who, acting under the authority of the educational institution, prints one copy of a work that was telecommunicated to them. However, the Bill would require that person to have reasonably believed at the time of the printing that the educational institution had the authority to communicate the work. If the educational institution pays out royalties to a collective society under this exemption and subsequently enters into a digital reproduction agreement or a general tariff is approved by the copyright board that sets a higher royalty rate from that which was paid, the educational institution would have to pay out the difference. If the subsequent rate is lower, the copyright owner or collective society would have to reimburse the educational institution.

Educators would not be able to rely on the digital copies exemption if the copyright board has approved a general tariff governing the digital reproduction of works, the communication of such works by telecommunication and the printing of at least one copy of those works by authorized individuals. There is currently (until 2011) an Educational Rights tariff regarding telecommunication of copyrighted works by educational institutions to the public.

There is a strong argument that many of the activities served by electronic copies qualify as fair dealing. However, educational institutions may also use electronic copies in a manner that would not qualify as fair dealing, and so be forced to rely on this exception (or pay the license contemplated) to avoid liability.

Bill C-61 would expand the conditions under which libraries, archives, and museums can make copies of works in their permanent collections in order to maintain the collection. Specifically, the Bill would allow libraries to make a copy in an alternative format where an agent of the library deems that the work's current format is becoming obsolete or unavailable. The current wording in the Act only allows a copy to be made where the format is already obsolete or unavailable. However, the new right would be subject to the same limits as the existing one, namely copies would be prohibited where an alternative format is commercially available. Further, any intermediate copies that are made in the process would need to be destroyed after they are no longer needed.

The Bill would codify the right of libraries, archives and museums to make digital copies of works available to a person who has requested it through another library, archive, or museum. However, the amendment would require the collection providing the material to take measures to prevent the recipient from (a) copying the work, (b) communicating the work to any other person, and (c) using the digital copy for more than five business days. These measures would most likely require institutions to attach some form of technological measure to the digital copy.

Although the Bill would codify libraries' rights to make digital copies of copyrighted works for interlibrary loans, this codification appears to be less than what libraries already enjoy under the law. According to the 2004 Supreme Court case CCH Canadian Limited v. Law Society of Upper Canada, libraries, archives and museums have been allowed to deliver a digital copy of an interlibrary loan directly to a desktop under the Copyright Act's fair dealing provisions. To take advantage of this existing exemption, however, the Bill would require libraries, archives, and museums to institute some form of technological measures. The Canadian Library Association has warned that institutions lacking sufficient resources to purchase and implement technological measures may ultimately have to abandon the practice of providing digital copies for inter-institutional loans and return to only providing paper copies.

Bill C-61 includes an exception for educational institutions' "educational use of the Internet." Under this exception, educational institutions - schools, colleges and universities - are not liable for copyright infringement for certain uses of content made available over the internet without restriction.

Educational institutions enjoy rights under the fair dealing exception to use content fairly for purposes that include research, private study, and criticism. This exception captures a great deal of the activity undertaken by students, teachers, and researchers in educational institutions. Much of the content covered by the educational exception proposal is also covered by the "implied license" doctrine: people who make content available without restriction on the Internet may be implied to have given internet users permission to use this content in foreseeable ways.

Some educational stakeholders worry that fair dealing doesn't stretch far enough to cover all of the uses made of materials in the classroom. Fair use - the American counterpart to fair dealing - plainly includes "educational use" generally, and "multiple copies for classroom use" specifically. Since Canada's fair dealing exception doesn't include such language, educational institutions worry that fair dealing may not capture classroom performance of audio-visual works or the making of multiple copies for classroom use. However, rather than seeking general exceptions covering such classroom activities, these stakeholders have sought a specific exception covering such activities in relation only to internet use.

Major stakeholders in the educational community, including the Canadian Association of University Teachers (CAUT), the Canadian Federation of Students (CFS), the Canadian Federation for the Humanities and Social Sciences (CFHSS), and other independent scholars and commentators, worry that the educational use of the internet exception is the wrong approach. They advocate general exceptions that address the wider needs of educators and students, including broadening fair dealing to include the kinds of dealings that qualify as fair use in the United States but may not be clearly enough captured by fair dealing in Canada. They also argue for general, technology neutral exceptions that are not subject to exceptions and loopholes. They worry that exceptions of this sort make for bad public policy, and invite courts in other contexts (such as consumer and commercial use of the internet) to draw adverse inferences from the "need" for this exception and thus impose licensing requirements. Finally, the exception invites publishers on the internet to "opt out" of the exception through clear language, or by the imposition of access or content protection measures such as passwords. Ultimately, these reactions to the exception will impose costs on educational institutions in the form of licensing obligations and barriers to accessing information.

Bill C-61 would narrow the scope of the public domain, putting it in the hands of private individuals. The public domain comprises works whose copyright has expired and works that do not qualify for copyright protection. Copyright law seeks to both provide incentives for creators and to provide public access to creative works. To achieve this end, copyright terms are limited to ensure that the works of Canadian creators join the public domain alongside those of Shakespeare and Beethoven. By extending copyright terms, Bill C-61 would delay many works from entering the public domain. This extension of copyright terms would severely disturb the balance between the needs of creators and the public.

Bill C-61 would give three notable term extensions to copyright holders: to performers' performance rights, to sound recording rights, and to corporations' copyrighted photographs. Under the current regime, a performer's performance is protected for fifty years from the date of first recording, or if it has not been recorded, for fifty years from the date of first performance. Bill C-61 would extend performance rights to a maximum of 99 years. If the performance is fixed in a sound recording before the copyright expires, then copyright would continue for another fifty years after the fixation. Further, if the sound recording in which the performance is fixed is published before the copyright expires, the copyright would continue until the earlier of fifty years after the publication or 99 years after the performance. A similar extension would be granted to sound recording rights. Under the current regime, sound recording rights are protected for fifty years from the date of the first fixation. Bill C-61 would allow sound recorders an additional fifty years from the year of publication. Finally, a corporation's copyright over photographs would be extended from a period of fifty years to a period of the life of the photographer plus fifty years. These corporations would be earning the term extension at the expense of the public.

These term extensions would put a strain on the resources of libraries and archives. The term extensions for performance rights, sound recording rights, and photographs would take works away from the public domain. Libraries and archives would have to worry about these additional copyrighted works. Specifically, they would be unable to make copies of these works on formats that are becoming obsolete if an alternate format is commercially available. They would have to pay for these copies, placing an extra expense on them. They would only be able to make digital copies of inter-library loans if they protected the copies with technological measures, which would be expensive for them to do. Furthermore, the term extension on photographs would make clearing copyright a murky activity. Currently, it is fairly easy for archivists to tell whether a photograph has been taken within the past fifty years. However, Bill C-61's proposed term, the life of the photographer and fifty years, is much less easily determined as it is often impossible to determine the author of a photograph.

Use of public domain material that is protected by technological measures would be effectively be prohibited in most cases. Most public domain works are accompanied by copyrighted materials, and Bill C-61 would make it illegal to break technological measures to access these works. For example, you would be liable for breaking a technological measure to view a copy of Shakespeare's Hamlet with a new preface attached to it. Furthermore, Bill C-61 would make it illegal to supply the tools or services for circumventing technological measures. This would effectively render public domain material that is protected by technological measures inaccessible to the public.

A general theme of Bill C-61 is that it defers to 'private ordering' - the process by which copyright owners can specify terms of use as they please through the use of DRM systems and restrictive contracts. This does away with copyright law's balancing of interests - a balance set by lawmakers accountable to the Canadian public - and replaces it with a system in which rights allocation is decided by private interests that are not accountable to anyone. The legal protection afforded by Bill C-61 to DRM and contracts could seriously hinder user rights, since users typically have no power to bargain with copyright holders for better terms of use.

End User License Agreements (EULAs) are contracts between a consumer and a content vendor. EULAs are typically unilateral contracts: the terms of use are set by the seller, and the buyer has no ability to negotiate. Under Bill C-61, there would be many instances in which a EULA may take away rights that users would normally have under copyright law. EULAs are explicitly given precedent over copyright in two areas: private copying [link to Private Copying] of materials downloaded from the internet (with the exception of copies of music recordings made to audio recording media), and recording of video-on-demand [link to TV and Video]. This completely eliminates consumers' fair dealing rights in these areas.

The Bill's prohibition against circumventing DRM would also effectively give precedent to EULAs for DRM-restricted content, since if the DRM enforced the contract terms there would be no legal way for users to make use of their fair dealing rights.

The Bill fails to address many concerns that are important to consumers:

• The Bill does not address any expansion of fair dealing rights to include important uses like parody, appropriation art or digital sampling.
• It does not provide consumers with back-up rights for fragile digital media like optical discs.
• It does not eliminate statutory damages for copyright infringement for consumers who make private copies, or for public institutions. These parties do not represent a significant threat to the profitability of rights holders and yet they can be liable to massive damages for relatively minor infringements.
• It does not address the issue of Crown copyright. Crown copyright is the copyright the Canadian government has granted itself to control the use of works it produces like maps or written material. This right is controversial, as many people feel that if they have funded the production of a work through their tax dollars, they should be entitled to make use of it without having to pay a second time.

The next parliamentary session is scheduled to begin in September. The bill will be given a second reading, at which time it will be debated in the House of Commons. Then it will go to committee, where amendments may be recommended. The House will then vote on the amendments at third reading. Note that, exceptionally, a bill may be sent to committee before second reading. After a bill passes third reading, it is sent to the Senate, which may request further amendments. It will then be given Royal Assent by the Governor General, at which time it will become law.

If an election is called before third reading, the bill will effectively die. The next parliament may reintroduce it, but it must start again from first reading.

Similarly, it is possible that the bill may be expunged if the Prime Minister prorogues the parliament. This happens when the government has completed its agenda and wishes to call for a new Throne Speech.

• Write, call or visit your MP. You can mail letters to them free of charge (no stamp required).
• Write to Industry Minister Jim Prentice and tell him what you think of his Bill.
• Join the Fair Copyright for Canada Facebook group.
• Stay informed by reading Michael Geist, Sam Trosow, Howard Knopf, and others.
• Visit OnlineRights.ca, Digital-Copyright.ca and CopyrightForCanadians.ca for more ideas.