Tories preparing package of ‘technical amendments’ to C-11

The Conservative government is readying a package of technical amendments to copyright reform Bill C-11 and hopes to see the legislation head to committee quickly after the House of Commons returns to business this month, Dean Del Mastro, the parliamentary secretary to the Prime Minister, said in an interview. “We have some technical amendments that we'll be making to the bill,” Del Mastro, who has been named a member of the special legislative committee that will study C-11, told The Wire Report in an interview before Christmas. Del Mastro said the bill as it stands is “what we want to pass” but that the government intends to make some technical amendments to ensure the intent of the bill is consistent with its effects in law. “That's what any of the amendments would encompass,” he said. Del Mastro said the bill's “enabling” provision—intended to provide a legal remedy against copyright infringement “facilitators” like torrent trackers such as isoHunt.com—is being eyed for an amendment to ensure it's “air tight.” He acknowledged that there are issues surrounding the provision's language, which provides for action against services “designed primarily” to enable acts of copyright infringement. Bill C-11, introduced last year in the House of Commons and now at second reading debate, is the same as its predecessor, Bill-32, which died on the order paper in the spring of 2011 when the House prorogued for a federal election. During committee meetings on C-32, several business and rights holder groups, including Music Canada (formerly the Canadian Recording Industry Association), the Society of Composers, Authors and Music Publishers of Canada (SOCAN) and the Entertainment Software Association of Canada (ESAC), proposed amendments to the enabling provision. An ESAC brief submitted to the C-32 committee in December 2010 proposed to amend the provision “to ensure that it applies to services that are 'designed or operated' primarily to enable acts of infringement.” ESAC also proposed an amendment to “clarify that the enabling provision applies to hosting and caching services providers, and to ensure that copyright owners can elect to obtain the full range of legal remedies against enablers, including statutory damages.” Google Inc. has expressed concern that the provision may have “unintended consequences” for companies like itself that provide web searching. Although industry sources suggested to The Wire Report that technical amendments may be made to C-11's exception for user-generated content and provision for a reduction in statutory damages for “non-commercial” infringements, Del Mastro said “that's speculation.” “I haven't specifically seen any wording around that,” Del Mastro said. “Once we get into the committee process again, we can look at any additional amendments. Most of what I've seen has been around the infringement wording and also the education exemption under fair dealing.” Rights holder groups such as ESAC proposed that the bill's exception for the creation of user-generated content be narrowed to avoid unintended consequences. ESAC proposed in its brief to the C-32 committee that the user-generated content exception be limited to “fairness” factors and to “transformative” user-generated works “to avoid permitting wholesale appropriation” of rights holders' content. Del Mastro said the government has a technical amendment to the bill's proposal and an educational exception to the Copyright Act's section on fair dealing, which lists exempted uses of copyrighted material for purposes such as news reporting, criticism or research. He said the new education exception is not intended to permit free copying and distribution of educational materials at schools. “What we will seek to do is provide additional clarification around that exemption to make sure that folks understand that there is going to be fair dealing for education,” he said. “But all of the rules as under the Berne Convention and by the Supreme Court of Canada with respect to fair dealing will in fact be respected by the law,” Del Mastro said. Insiders told The Wire Report that the government may amend the educational exception to include the Supreme Court's “fairness factors” for fair dealing as written in the 2004 decision CCH Canadian Ltd. v. Law Society of Upper Canada, but Del Mastro said it's premature to say that. But he added: “I think that would certainly be one approach to provide additional clarity around the issue, absolutely.” Some user groups such as the Association of Universities and Colleges of Canada (AUCC) have proposed including the 2004 Supreme Court decision's six fairness factors in the bill. Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, said in an interview that he expects the parties of the House to try to “cram in” changes to the bill “under the guise of technical amendments.” But the government, which will have majority voting power at the committee, will be reluctant to make significant changes, he predicted. “There will be a great reluctance from the government to make any changes at all,” Geist said, noting that the government has said it won't consider major changes. “You can take them to their word on the copyright issue. They've been true to it and consistent over the last couple of months,” Geist said. He added that making significant changes on one side could distort perceptions of the bill's balance, which would necessitate additional changes. Del Mastro said he hopes to see the bill sent to committee quickly when the House returns so MPs can make any necessary tweaks. “Let's get that done, let's get the bill over to the Senate, and let's finally get Canada WIPO compliant,” he said. The NDP, among other proposals, argues that the bill should implement a private copying levy on digital music players to compensate artists, a move the Conservative government calls an “iPod tax.” The NDP also opposes C-11's strict legal protection for digital locks on software and content. “If a student breaks a digital lock because he or she cannot see or is partly blind and has to break the digital lock to access the work on a Kindle, that student is not the same as someone who breaks a digital lock to rip off video games,” NDP MP Charlie Angus, the party's digital affairs critic, said during a House debate on C-11 in December. sdoyle@thewirereport.ca

Tories preparing package of ‘technical amendments’ to C-11

Broadcast | January 11, 2012

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