Liberal party preparing amendments to Bill C-32

OTTAWA—The Liberal party is planning to propose amendments to Bill C-32, the Conservative government’s copyright reform bill, to permit the breaking of digital locks for consumer uses and to better define the ways in which fair dealing uses can be challenged in court, Marc Garneau, the Liberal party’s industry critic and a member of the C-32 legislative committee, said in an interview Thursday. “We believe that if somebody has legitimately bought a work and wants to transfer it to another device for personal use only, that should be allowed,” Garneau said, referring to the strict protection for digital locks, or technological protection measures, as now proposed in C-32. Garneau referred to the former Liberal government’s Bill C-60, which did not pass Parliament, but which proposed that the legal protection for digital locks be tied to the intent to infringe copyright. That would mean that users who break digital locks without the intent to infringe could do so legally. “I believe that there is support from other parties on that,” Garneau said. The opposition parties are preparing their amendments to the bill as meetings of the legislative committee on Bill C-32 began this week. Garneau said the Liberals are also looking at proposing an amendment to the fair dealing section of the bill. Right now, the fair dealing provisions in the Copyright Act create exceptions for private study, research, criticism, review and news reporting. Bill C-32 proposes adding new fair dealing exceptions for parody, satire and education. The Liberals are considering adding a list of factors to help courts determine whether the uses are “fair.” Garneau pointed to the 2004 Supreme Court decision CCH Canadian Ltd. v. Law Society of Upper Canada, which identified factors such as “the purpose of the dealing,” its character, the amount of dealing, and “the effect of the dealing on the work.” He suggested the factors identified in the decision be added to the Copyright Act’s fair dealing provision to clarify what is considered fair. Garneau added that the party wants to propose a definition for the new education exemption under the fair dealing section of the bill. “At the moment we feel that it definitely needs further definition,” he said. Garneau made the comments Thursday following a meeting of the legislative committee on Bill C-32, where Industry Minister Tony Clement and Heritage Minister James Moore appeared to answer questions about the legislation. Clement wouldn’t say whether the government is open to amending the digital locks provision in the bill, but warned the opposition parties to tread carefully with their amendments. He said the bill strikes a balance between the interests of copyright creators, users and intermediaries, and that significant amendments could upset that balance. “When you propose an amendment, have regard for the fact that we’re in a zero-sum world,” Clement said. Moore told the committee he looks forward to seeing any proposed amendments. “We’re not here just to talk around a table. If you have amendments, put them forward. We’re ready to hear them,” he said. Following the committee meeting, The Wire Report asked Moore whether the Conservatives are open to an amendment to the digital locks provision. He said he’s waiting to see the wording. “We’ll see,” he said. “I can’t have a position on their position until I see their position.” Moore added that the digital locks provision was developed through extensive consultations with industry and cultural groups, and suggested that permitting the hacking of digital locks for non-commercial purposes is not good policy. “If you’re doing it for corporate sabotage, or for fun, or for kicks, or if you’re an anarchist, that has just as much damage to the enterprise as for commercial purposes,” he said. The opposition parties have said they oppose the digital locks provision as proposed in Bill C-32. Bloc Québécois MP and heritage critic Carole Lavallée said during the meeting Thursday the bill’s strict legal protection for digital locks meets the interests of many industry groups but does not help creators and artists. “It’s not just the artists that are concerned about this, but also the consumer groups,” she said. But Moore rhymed off a list of theatre, student, and film and television groups in support of the bill. Jean-Pierre Blais, assistant deputy minister of cultural affairs at the Department of Canadian Heritage, and John Connell, an associate assistant deputy minister at Industry Canada, also appeared before the committee Thursday. Liberal MP Dan McTeague, the party’s critic for consumer and consular affairs, asked whether the so-called “enabler provision” in the bill—which is intended to provide a legal remedy for damages against copyright infringement “facilitators” like peer-to-peer filesharing services or BitTorrent trackers—is effective against online “pirate hosting services.” McTeague asked whether the provision should be expanded so that it not only says the services can be held liable for copyright infringement if they “enable” infringement. He suggested adding the word “induce” to help rights holders go after hosting services. Blais said the provision is “unique and may be the first one in the world ever proposed,” adding that its intent is to cover online hosting services. “We are aware that there are people out there who suggest that the drafting isn’t quite right with respect to hosting. There is an intention to examine that more closely,” he said. But intermediaries Google and Yahoo have expressed concerns about the potential unintended consequences of the provision, as The Wire Report reported in August. sdoyle@thewirereport.ca

Liberal party preparing amendments to Bill C-32

News | 11/25/2010 10:53 pm EST

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