Heritage, Industry reps provide copyright clarification at forum

Controversial aspects of a proposed bill to amend the Copyright Act were debated at a recent forum in Ottawa as policymakers from Canadian Heritage and Industry Canada faced questions on the future of copyright reform. While much of the session focused on setting the stage for where Canada sits in the copyright world today, there were some fireworks when talk shifted to the issue of statutory damages in Bill C-60, an Act to Amend the Copyright Act. The bill contains provisions that would allow record labels to sue individuals for lost revenue, which might for instance be alleged to result from the downloading and sharing of digital music files. Howard Knopf, an intellectual property lawyer with Ottawa’s Macera & Jarzyna/Moffat & Co., asked representatives from Heritage and Industry if the provision would likely see considerable use if the bill was passed, pointing to examples in the United States where Internet users sharing music files were sued by record labels and music industry associations for such damages. Denis Gratton, senior project leader in the Department of Canadian Heritage’s copyright policy division, said "obviously it can be used, otherwise it wouldn’t be in the act. He added "if there was an onslaught of cases where statutory damages were given, the government would be expected to revisit this issue."Retorted Knopf: "There’s not going to be an onslaught because if it happens the way it has in the United States, none of them will ever go to court. There 14,000 so far in the United States, and not one of them has so far found its way to the court room, because the law down there is such that the defendants have no alternative but to settle for four or five thousand bucks a piece." Heritage laid out short-term, medium-term and long-term issues for resolution in the bill during a consultation phase in 2001 and 2002. Short-term issues included complying with the World Intellectual Property Organization treaties signed in 1996, as well as settling questions around Internet service provider liability, educational use, photography, and unpublished works, while medium-term issues included Crown copyright, collective rights management, ephemeral recordings by broadcasters, and the private copying regime. Finally, issues to be settled in the long term included traditional or "folk" knowledge, databases, performance rights, signal rights for broadcasters, and clarification and interpretation of the act itself. The first reading of Bill C-60 attempted to address many of those issues, said Bruce Couchman, senior legal analyst in Industry Canada’s intellectual property policy directorate. For example, the two WIPO treaties Canada is a signatory to lay out provisions for technological protection measures (TPMs) for digital copies of works, and Bill C-60 includes similar language. "These are perhaps one of the most controversial aspects of the bill," Couchman admitted, adding that many other WIPO signatory nations see TPMs as something controlling access, such as the regional codes on DVDs, without impinging on the rights of users within those nations. Technological protection measures are afforded a measure of protection themselves from "cracking" or disabling under Bill C-60, another source of controversy. Ian Kerr, Canada Research chair in ethics, law and technology at the University of Ottawa, attacked the bill for not considering consumer privacy in affording protection to TPMs. "There’s nothing in the bill that speaks to that, I’d be disappointed to hear that the answer...would have to be that Canada has privacy protection legislation , and leave it at that," he said. Couchman admitted that more thought and clarification is needed on the interplay between TPMs and consumer privacy, but added "there’s nothing in the bill that would prevent a consumer or anyone else from doing something to a TPM or rights management information to prevent the collection of information about that consumer." However, uncertainty arises if disabling the information-gathering function has the unintended effect of also disabling the TPM, he said. Suzanne Morin, senior counsel in Bell Canada’s regulatory law division, followed up Kerr’s comment by saying that while developers of TPM and digital rights management (DRM) software should examine the potential privacy implications of their work, Canada’s current privacy legislation offers efficient and effective protection for users of digital works. "I don’t think Canada’s Copyright Act needs to include provisions that limit somehow what copyright owners can or cannot do with DRMs or TPMs," she said. Kerr immediately countered Morin’s assertion. "There’s an easy end run around all of the protections afforded by PIPEDA and other legislation, and that is simply by way of contract," he said. "The DRM can actually be used as a way to ‘hack’ around privacy legislation." The bill also places restrictions on sale, rental, distribution and communication of material from which protection measures have been removed, but copyright collectives such as the Canadian Recording Industry Association have said those restrictions are weak compared with those of other WIPO signatories because they don’t place a ban on the actual devices or technology used to defeat TPMs. "We are a lot more optimistic about the behavior of Canadians," Couchman said. "We assume that if we prohibit them from doing something, they will not create the devices to do it. But, in a sense that will be seen over time...if in fact the amount of circumvention is relatively low by international standards, then that would be an indication there’s adequate and effective protection even though we don’t have exclusive protection prohibitions on devices." The public forum was part of the Techlaw Copyright Summit, held at the University of Ottawa and sponsored by the school’s Information Technology Law Society.

Heritage, Industry reps provide copyright clarification at forum

News | 10/14/2005 4:00 am EDT

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