Copyright law reform

Copyright law reform

SOCAN v. Bell (2011)

CIPPIC is seeking leave to intervene is SOCAN v. Bell, a copyright case that will consider the scope of fair dealing for research purposes. Also known as the Apple iTunes case, it is specifically about whether listening to short music previews is a research activity protected as fair dealing under the Copyright Act. CIPPIC is of the opinion that it is consumer research protected by fair dealing, as well as by the interaction of fair dealing with freedom of speech under the Charter:

• The Copyright Act, with its objectives of serving the public interest, is meant to embrace activities such as research in order to encourage and disseminate artistic and intellectual works.
• The Charter, which likewise has the objective of protecting the public interest, guarantees freedom of speech under s. 2(b). Given that the Copyright Act grants exclusive rights in expression, it necessarily interacts with the Charter: courts must interpret the Copyright Act in light of freedom of expression.
• Courts already recognize that respect for freedom of expression requires considering the impact on democracy, individual self-fulfillment and the freedom to search for truth. Consumer research in the context of music previews aids all of these expressive aims. It allows consumers to experience new songs, new artists and even new genres of music in their music discovery endeavors. It impacts democratic expression, given music's long history as a vehicle for political protest. It impacts individual self-fulfillment, given music's connection to individual identity and exploration of the self. In this context, thirty-second song previews are a fair way for consumers to discover music's expressive offerings.

The 2005 Revision Attempt (Bill C-60)

In 2005, parliament considered revisions to the Copyright Act [11] in order to ensure that Canada's copyright framework remained relevant in the rapidly changing digital environment. The Canadian government introduced a long-awaited bill to amend the Copyright Act on June 20, 2005. Bill C-60, An Act to amend the Copyright Act [12], features anti-circumvention rights, DRM anti-tampering rights, a making available right, a "notice and notice" regime for ISP liability, ISP "data retention" requirements, expanded rights for performers and music labels, diminished rights for consumers in respect of commissioned photos, and user rights to receive digital materials for distance education and interlibrary loan.

• CIPPIC Media Release [13]
• Bill C-60, An Act to amend the Copyright Act [12]
• Government Backgrounder, FAQ, and Ministers' Letter [14]

See Industry Canada's Copyright Reform Process website [15] and Canadian Heritage's Copyright Policy Branch website [16] for more information on the law revision process.

CIPPIC students have been examining various issues arising in copyright as a result of technological changes, have monitored Parliamentary hearings on point, and have drafted submissions to the Canadian government on some of these issues.

The Basics of Copyright Law Reform (Prof. Samuel Trosow)

To better understand the basics of copyright law, Prof. Samuel E. Trosow [17] (Western Ontario University)
presents us his master class: Introduction to Copyright Law and prospects for new legislation.
Presented by Concordia University. Duration: 1h04. (Also available on Google Video [18])
Click here to get the slides of this presentation [19].

The Truth About Copyright Revision

The Canadian government is considering amending Canada's copyright law. CIPPIC is greatly concerned [20] with the proposals and recommendations contained in the Standing Committee on Canadian Heritage's Report on Copyright Reform [21]. The Standing Committee claimed its recommendations were "responsive to the needs of all Canadians". The Truth [22] is very different.

• Sign on to The Truth! [23]
• Watch CIPPIC's video [24] about copyright law reform in Canada (aussi disponible en français [25])
• What else can you do to help? We have some ideas [26]...

CIPPIC pushes for balance in copyright law reform, and the Privacy Commissioner responds

As Parliament considers legislated protection of Digital Rights Management (DRM) technologies (designed to detect and stop copying of digital works), the Privacy Commissioner of Canada has indicated her intent [27] to "initiate a dialogue" with the departments of Heritage Canada and Industry Canada "to ensure that privacy risks" associated with any copyright legislation "are addressed." Some of the Commissioner's provincial counterparts have signaled their support of her initiative. The Information and Privacy Commissioner for British Columbia [28] and the Ombudsman of New Brunswick [29] have both been in touch with CIPPIC to affirm their awareness of the issue and to offer their support to the federal Privacy Commissioner. Cippic had earlier invited Canada's privacy Commissioners to involve themselves in the copyright reviews process. In letters to the federal Privacy Commissioner [30] (dated November 4, 2004) and provincial privacy commissioners [31] (dated November 10, 2004), CIPPIC pointed out that the continuous information collection and surveillance functions of DRM can provide owners with highly detailed and previously unavailable information about the reading, listening and viewing habits of end users. We also highlighted various ways in which certain uses of these technologies may be violating federal privacy legislation. This unprecedented threat to consumer privacy deserves immediate attention, before it becomes further entrenched.

Together with PIAC [32], CIPPIC sent a letter [33] dated October 26th to members of the newly constituted House of Commons Standing Committee on Canadian Heritage [34] urging them to consider important public interest implications of proposed copyright law reforms, and to take a more balanced approach than that reflected in the previous Committee's interim report.

Heritage Committee Interim Report on Copyright Law (May 12, 2004)

On May 12, 2004 the Standing Committee on Canadian Heritage, chaired by Sarmite D. Bulte, M.P. released an interim report [21] listing a number of recommended reforms to Canadian copyright law. The first round of hearings for the report were launched in October 2003 where the Committee heard from a panel of invited witnesses including representatives from Canadian Heritage, Industry Canada, the Canadian Internet Policy and Public Interest Clinic, the Canadian Association of Internet Providers and the Canadian Motion Picture Distributors Association among others. As a result of these consultations, the Committee came up with a number of recommendations:

1. That the Government of Canada ratify the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) immediately
2. That the Copyright Act be amended to grant photographers the same authorship right as other creators
3. That the Copyright Act be amended to provide that Internet Service Providers (ISPs) can be subject to liability for copyrighted material on their facilities. ISPs should be exempt from liability if they act without actual or constructive knowledge of the copyrighted and transmitted content and where they meet certain prescribed conditions. Compliance with a "notice and takedown" scheme should be mandatory.
4. That the Copyright Act be amended to allow for extended licensing of Internet material used for educational purposes. A fee should not be applied to publicly available material defined as:
5. Publicly available material should be defined as material that is available on public Internet sites. Public Internet sites do not require subscriptions or passwords and there is no associated fee or technological protection measures which restrict access or use. The Committee also recommends that publicly available material be accompanied by notice from the copyright owner explicitly consenting that the material can be used without prior payment or permission.
6. A regime of extended collective licensing should be implemented by the Government to ensure that educational institutions' use of information and communications technologies to deliver copyright protected works can be more efficiently licensed.
7. Licensing of the electronic delivery of copyright protected material directly by rights holders is encouraged as the Committee posits that this will ensure the orderly and efficient electronic delivery of copyright material to library patrons for the purpose of research or private study.
8. The Government is urged to take immediate and decisive action on the recommendations above in pursuit of the modernization of Canadian copyright law, which the Committee posits, is of the utmost importance
9. That a memorandum to cabinet incorporating the above recommendations be ready for approval no later than August 15, 2004 and that legislation to permit the ratification of the WIPO treaties be introduced in the House of Commons by November 15, 2004

Together with the Public Interest Advocacy Centre (PIAC), CIPPIC has issued a highly critical response [20] to this report. CIPPIC and PIAC state that the report ignores key evidence and submissions by public interest groups, and lacks reasoning for some key recommendations. They call for rejection of the report and for a more balanced approach to copyright reform in Canada.

Submissions of the following organizations that appeared before the Committee are also available:

• Association of Canadian Community Colleges [35].
• Balanced Copyright Coalition [36].
• Canadian Association of Research Libraries [37].
• Canadian Cable Television Association [38]
• Canadian Coalition for Fair Digital Access [39]
• Canadian Internet and Public Policy Interest Clinic [40].
• Canadian Library Association [41].
• Canadian Teachers Federation. [42] "Supporting Culture and Innovation."
• Public Interest Advocacy Centre [43].

For more information on copyright reform, please refer to

• Government of Canada [44]
• Copyright Policy Branch of Heritage Canada [16]

The Supreme Court of Canada Decision in LSUC v. CCH Limited (March, 2004)

On March 4, 2004 the Supreme Court of Canada released its decision in the case of Law Society of Upper Canada v. CCH Limited [45] [2004] S.C.J. No. 12, (2004) 236 D.L.R. (4th) 395 holding (i) that the Copyright Act's fair dealing exception should be liberally interpreted to prevent undue restraint of users' rights and (ii) that the provision of self-service photocopiers does not equal an infringement of copyright.

Background

The Law Society of Upper Canada operates a law library in Toronto where it provides both self-service photocopiers and a photocopy service to members of the legal profession. In 1993, a group of legal publishers commenced a copyright action against the Law Society arguing copyright infringement and the Law Society responded with a counterclaim that copyrights were not violated when library staff or patrons made a copy of reported or summarized judicial decisions, legislation or excerpts from treatises. At the Trial Division, the Federal Court allowed the action in part and dismissed the counterclaim holding that the Law Society had infringed copyright in certain instances. This was confirmed on appeal when the Federal Court held that all legal materials in the library were subject to copyright protection.

At the Supreme Court level however, a unanimous bench held that the Law Society did not infringe copyright when library staff or patrons made single copies of the specified works for lawyers, in accordance with Law Society policy. The court ruled that such copying is permitted under section 29 of the Copyright Act, which allows copying for the purpose of research or private study. As well, the Law Society did not authorize the infringement of copyright by providing a photocopier in the library and, while headnotes, case summaries, topical indices and edited judicial decisions all attracted copyright protection as original works, judicial reasoning on its own did not.

Impact of this Decision

This decision means that patrons of the Great Library, and impliedly other legal libraries, can access and make copies of court decisions and legal commentary for their own research and private study purposes. Please see Professor Michael Geist's article "Low-tech case has high-tech impact [46]" and the Law Society's article "Law Society Welcomes Supreme Court of Canada Landmark Copyright Decision. [47]"

Rights of Consumers and Photo Subjects in respect of commissioned works

On November 3, 2004, CIPPIC Associate Alex Cameron presented a brief [48] to the Senate Standing Committee on Social Affairs, Science and Technology [49] on Bill S-9 [50], proposed amendments to the Copyright Act that would give photographers first ownership of copyright in the photographs they take.

On April 14, 2004, CIPPIC submitted comments [40] to the Heritage Committee on copyright reform and photographers' rights, urging Parliament to adopt rules that recognize disparities in bargaining power between different types of parties, as well as the reasonable expectations of consumers, in the context of commissioned photographs and other works of art. CIPPIC also calls for rules protecting portrait subjects from unauthorized reproduction or dissemination of their portraits.

Subsection 13(2) of the Copyright Act provides that, subject to an agreement to the contrary, first ownership of copyright in a commissioned photograph, engraving or portrait vests in the person who commissions and pays for the work. Photographers would like subsection 13(2) to be repealed so that they benefit from default ownership in copyright in the same way that most other artists do.

The issue of photographers' rights in copyright is the subject of Bill S-16 [51], under consideration by the Senate Standing Committee on Social Affairs, Science and Technology [52], as well as the Heritage Committee's [53] more general review of copyright legislation and reform.

Parliamentary Hearings on Copyright Law Reform (September 2003)

In September 2003, the House of Commons Standing Committee on Canadian Heritage ("Heritage Committee [54]") began its review of the Section 92 report [55] published by Industry Canadain October 2002. The Committee asked for written submissions from interested parties by September 15th; this deadline was later extended to October 17th. Unfortunately, those submissions are not posted by the Committee. Many of them have, however, been posted on the responsible organization's website. Submitting organizations include:

• Association of Canadian Community Colleges [56]
• Balanced Copyright Coalition
• Canadian Cable Television Association [57]
• Canadian Coalition for Fair Digital Access [58]
• Canadian Press
• Canadian Teachers' Federation
• Computing Technology Industry Association
• Copyright Board of Canada
• Corus Entertainment Inc.
• Directors Guild of Canadaand Directors Rights Collective of Canada
• Neighboring Rights Collective of Canada
• Public Interest Advocacy Centre [32]
• Radio-Television News Directors Association
• Russell McOrmond [59]
• TELUS
• The Canadian Association of Research Libraries
• The Canadian Copyright Licensing Agency
• Droit d'auteur multimedia internet copyright
• Société des auteurs de radio, television et cinéma [60]
• Société professionnelle des auteurs et des compositeurs du Québec et Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada (spacq)
• Union des artistes
• Université du Québec à Chicoutimi

Some of the submitting parties were subsequently invited to appear before the Committee. Law students interning at CIPPIC attended and blogged some of the hearings.

Student blogs:

• October 23, 2003 [61]
• October 29, 2003 [62]
• November 4, 2003 [63]
• November 6, 2003 [64]

The Heritage Committee resumed its consideration of copyright law reform in the spring of 2004, under the new session of Parliament. See the Committee's website for information on its hearings under the new session of Parliament, including testimony from interested parties on various issues including WIPO treaty ratification and Canada's private copying tariff, photographers' rights, and ISP liability.

Supreme Court of Canada hearing in CAIP v. SOCAN (Dec. 5, 2003)

The Supreme Court of Canada heard arguments on Dec.3, 2003 from Internet Service Providers (ISPs) and music industry representatives in an important case that will decide, among other things, the extent to which Canadian ISPs are liable for content flowing through their networks, and the extent to which foreign actors who target communications to Canadians may be liable under the Canadian Copyright Act. Dubbed the "Tariff 22 case" in recognition of its genesis in the proposed copyright tariff designed to compensate rights holders for music downloaded over the Internet, CAIP v. SOCAN is expected to have wide-ranging implications for the Internet and electronic commerce generally. See CIPPIC student Jason Young's blog of the hearing for a first-hand account.

• CAIP et al Factum [65]
• CAIP et al Reply Factum [66]
• SOCAN Factum [67]

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This page last updated: February 19, 2008