Reforming copyright a top priority for Canada’s entertainment companies

A panel consisting of corporate and general counsels for a handful of Canada’s top entertainment companies and organizations joined forces at Insight Information’s Entertainment Industries Summit in late October. During a panel discussion titled "Copyright Reform: Bringing Canada up to Global Standards," they illustrated their desire for the current Conservative government to reintroduce a copyright reform bill. Loris Mirella, Canadian Heritage’s senior project leader for legislative and international projects, would not confirm or deny the bill’s timetable at the event, but he acknowledged the rampant rumours that there will be legislation before the end of the year. That said, the current government has not set out a copyright agenda or policy just yet. The most Mirella could reveal is that the departments involved are working on the marching orders provided by Minister of Canadian Heritage Bev Oda and Industry Canada Minister Maxime Bernier. The previous Liberal government’s attempt at copyright reform, Bill C-60, died on the order paper when an election was called last December. Lawyers for some of Canada’s top entertainment companies, however, had a lot to say on how the Conservative government should revisit digital rights management (DRM) and rights management information (RMI) initiatives. Richard Pfohl, general counsel for the Canadian Recording Industry Association, said illegal online activity such as downloading music is dwarfing legitimate businesses. He added that venture capitalists are overlooking Canadian music recording companies as investments because there is a notion that nothing prevents people from downloading tunes free of charge in this country. Downloading is relatively easy in Canada thanks to the high levels of broadband concentration here, but according to an Organization for Economic Co-operation and Development report, the Great White North also leads the world in file swapping. "About 80% think it’s a serious act to steal a CD, but only 30% think it’s a crime to download music for free online," Pfohl said. The panel suggested Canada finalize its ratification of the World Intellectual Property Organization’s Copyright Treaty. Pfohl said nine out of Canada’s 10 top export partners have either already signed the treaty or are about to. Although established in 1996, WIPO continues to shape how digital copyright evolves as technology develops, and it helped the US create its legislation that has seen its major music companies sue the consumers they believe are stealing music online. "The only one who isn’t a part of WIPO is China…that’s the company Canada is keeping today," he said. For copyright infringement court cases today, the Supreme Court of Canada generally follows the WIPO treaties to be consistent, but Pfohl argues it’s not the law and a lower court judge can rule based on a different understanding of rights. "We live in a country where copyright laws don’t protect us," he said. Wendy Noos, general counsel for the Canadian Motion Picture Distributors Association, added that Canada needs to implement the WIPO treaty in order to take advantage of new business models that now exist south of the border. She argues that services such as Movielink LLC and Amazon.com’s Unbox, where viewers can download and rent entertainment, provide options to consumers in the US but can’t be accessed by Canadians because the laws here don’t protect a company’s right to monitor activity from these transactions. "There are organizations that say they’re speaking on behalf of the public – that these laws will limit access and ability to use the Internet – but if you need to know what won’t happen, consumers won’t have a choice," she said. Digital rights activists argue with the entertainment industry over the definition of DRM, copyright and fair use. Since the treaty evolves as technology develops, protestors argue it leans in the favour of money making at the expense of artistic expression and user rights. Noos stresses artists who do not want to take advantage of their rights will not be forced to follow the same rules as those owners that rely on copyright. "There is nothing that will force people to do this," she said. Casey Chisick, a partner in the information, communications and entertainment law group at Toronto’s Cassels Brock & Blackwell LLP, agreed that nobody on the panel was advocating mandatory DRM, but added it’s important to set laws in place so Canada can play an international role in the digital marketplace. "DRM isn’t about restricting access. It’s about enabling people to do different things with the content they control," he said. What’s significant to him in the WIPO treaty is RMI, which it defined as making sure the owner’s signature stays with the IP as it get disseminated throughout the digital world to ensure payment. He said the WIPO treaty in 1996 was farsighted enough to include some protections that mandated legal remedies against any person who knowingly removes RMI or distributes content where the RMI was removed, but Canada needs to define this for its own laws. Despite all of these comments from the entertainment industry, there is still not any sense what a legislative package might look like when it eventually does come to the table. Although Mirella said some of the issues originally brought forth in C-60 are important, other issues are at play as technology develops. "The views expressed on the panel are important to develop a position that promotes the public interest and the cultural industries," he said.

Reforming copyright a top priority for Canada’s entertainment companies

Broadcast | November 15, 2006

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