Heritage Committee makes controversial recommendations on copyright reform

To no one’s surprise, the Standing Committee on Canadian Heritage has recommended in strong terms the quick ratification of two World Intellectual Property Organization (WIPO) treaties that would provide strong protection for copyright holders in a digital environment. On May 12, the committee tabled a report that made several key recommendations, including the adoption of a U.S.-style "notice-and-takedown" regime that would protect ISPs from copyright liability only if they act quickly at the request of rights holders to remove material identified as infringing from their servers. The committee is urging the government to create a memorandum to Cabinet incorporating its recommendations by August 15, with legislation to be introduced in the House of Commons by Nov. 15, 2004. Committee chair Sarmite Bulte said at a May 12 media conference at which the report was released that she would like to see work on the legislation continue through the upcoming federal election, with the memorandum waiting for MPs when they return. The recommendations come in the wake of weeks of testimony from rights-holder groups and others that have expressed frustration that Canada has not yet signed the 1996 treaties. The agreements would provide for a new right of "making available" - considered key to fighting music piracy as Canada’s laws become increasingly muddy on the subject - and protection for digital rights management tools. The committee has also responded to a longtime complaint of Canada’s photographers that they do not own the copyright in their work. Canada gives copyright in a photograph to whoever owns the negative. As personal scanners become ubiquitous, photographers find their business model built on reprint sales crumbling, and the committee has recommended a key change that gives them copyright in their works. In all, the committee made nine recommendations arising from its consideration of the copyright reform process. Besides urging the quick ratification of the WIPO treaties, the notice-and-takedown regime and the switch in rights for photographers, the committee has also made recommendations for: an extended licensing scheme for educational materials online, with a new definition for "publicly available" material that wouldn’t require a fee to use; a potential new extended licensing regime for libraries; and, quick modernization of the Copyright Act. Several of the committee’s recommendations are likely to be controversial, and there are no guarantees that any will work their way into legislation. ISPs, in particular, have been vocal about the need for exemptions that clear them of liability (CNM, April 30/04), and will likely enjoy high level support at Industry Canada for their concern. Despite the ISPs’ many arguments, however, the committee has chosen to support stricter rules. "It was clear to us that that wasn’t enough of an option to protect copyright holders," said Bulte at the media event. "If anything, it seems to be an excuse to say ‘Well, I gave them notice so I’m not responsible for anything else.’" The committee members - who appeared at the media conference from all four political parties - recognize that Industry Canada has expressed different views on several of these areas, but say the recommendations will focus discussions. Asked about the likelihood of agreement from Industry officials, Wendy Lill recalled Canadian Heritage’s Susan Peterson’s comment that "deadlines help" to accelerate a consensus. Bulte also emphasized that any codified notice-and-takedown regime will have to be "Charter-proofed" to ensure some of the controversial cases arising from the U.S. Digital Millennium Copyright Act don’t replicate themselves here. The committee has also explicitly said that the thorny subject of the treatment of foreign nationals with regard to the private copying regime won’t be a hurdle to ratifying the WIPO treaties. Canada doesn’t currently share neighbouring rights money from the private copying regime with non-Canadians, as some say the WIPO Performances and Phonograms Treaty (WPPT) will require. The report notes, however, that the "committee concludes, after considering the submissions and testimony of the witnesses, that the private copying regime does not prevent Canada’s ratification of the WPPT. Analysis of the private copying regime as a whole will continue as part of the copyright reform process." Music industry representatives have been firm with the committee that no changes are necessary to the regime in order to ratify it, and have told MPs that there would be no consequences should Canada sign without giving foreign nationals a piece of the pie. Opponents to ratification have cautioned that Canada could be open to a trade dispute on the subject when it signs the Free Trade Area of the Americas agreement. The subject raises an ironic twist. Reaction to the committee’s recommendations from the Canadian Recording Industry Association (CRIA) was swift and predictably congratulatory. A CRIA media release reads: "The Prime Minister told us at last month’s Juno Awards in Edmonton that he was not going to let the music industry be jeopardized, and he pointed to the committee’s work…The Minister of Canadian Heritage also stated her intention to make changes to the Copyright Act a priority. Now is clearly the time for the government to get on with modernizing the law - particularly in light of recent news that Canada has now been embarrassingly placed on a Special 301 Watch List by the US government for its lack of action on copyright reform including ratification of the WIPO treaties," CRIA concluded. As the release notes, the U.S. Trade Representative (USTR) again placed Canada on a watch list of countries where intellectual property violations threaten U.S. interests (CNM, May 16/02). While CRIA has made note of the 301 designation that this year highlights the ISP/CRIA decision by Konrad von Finckenstein, there is a likelihood that legislation ratifying the treaties without giving foreign nationals equal treatment under this country’s private copying regime - as CRIA has argued is acceptable - may again land Canada in hot water with its largest trading partner.

Heritage Committee makes controversial recommendations on copyright reform

Broadcast | May 14, 2004

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