On June 2, 2010 the Federal Government tabled Bill C-32: the Copyright Modernization Act in Parliament (Bill C-32). Bill C-32 represents a comprehensive set of amendments to the Copyright Act (the "Act"). The aims of Bill C-32 are twofold. One, to modernize the Act (which has not seen significant amendments since 1997), and two, to facilitate the ratification of two of Canada's longstanding international treaty commitments i.) The World Intellectual Property Organization (WIPO) Copyright Treaty, and ii.) the WIPO Performances and Phonograms Treaty. While both user and creator groups agree that reform is necessary, the Parliamentary Committee Hearings have demonstrated that neither side is happy with Bill C-32 as drafted. While the proposed amendments in Bill C-32 are numerous and complex, I have identified some of the most debated provisions and arguments and organized them under two headings: i.) New Rights, and ii.) Limitations on Rights.
Summary of NEW RIGHTS
- Technological Protection Measures (TPMs): Bill C-32 creates legal protection for the various technical means employed to protect works against potential copyright infringements e.g. the copy protection used on DVDs.
- Enabling Circumvention & Infringement: Prohibits, except under limited circumstances, the circumvention of TPMs and the offering of services that are primarily aimed at circumventing TPMs and enabling infringement.
- Making Available Right: Confirms that copyright holders have the exclusive right to authorize (or prohibit) their works from being made available on the Internet.
- Moral Rights for Performers: Grants moral rights (which allow a creator to protect the integrity of their work) to artists in their performances for a period of 50 years from the time of publication.
- Ownership of Photographs: Grants photographers the same authorship and ownership rights as other creators i.e. they are now the owners of copyright in their photographs.
Summary of LIMITATIONS ON RIGHTS
- Internet Service Providers (ISPs) or Search Engines: Limits ISPs' or search engines' liability for copyright infringement where they merely provide the means to access the Internet or another digital network.
- Hosting Services: It is not copyright infringement to provide online digital storage which another person may use to store an infringing copy of a work.
- User-Generated Content: Permits non-commercial "remixes" of copyrighted content such as music or "mash-ups" of different works into one work.
- Format Shifting: Under certain circumstances, Bill C-32 allows "format shifting" (e.g. transferring music from a purchased CD to an iPod) and "time shifting" (e.g. recording television programs for later viewing) when done solely for private use.
- Software: Permits the duplication of software for back-up, security, encryption research, and interoperability (the ability of a system to work with another system) purposes.
- Fair Dealing: Expands the scope of the "fair dealing" provisions (which allow the use of copyrighted material without the permission of the copyright owner) in the Act to also include education, parody and satire.
- Temporary Reproductions for Technological Processes: Permits the making of copies of protected works temporarily where it is an essential part of a technological process (e.g. caching).
- Educational Institutions, Libraries, Museums and Archives: Permits a wide range of new activities in order to allow for these institutions to use new digital technologies and grants new infringement exceptions (e.g. reproductions to facilitate distance learning and back-up copies).
- Broadcasters: Grant Broadcasters exemptions for making temporary copies of sound recordings on their digital networks for purposes of radio play.
- Statutory Damages: Creates separate statutory damages regimes for "commercial" and "noncommercial" copyright infringement, with the later category being subject to greatly reduced damage amounts.
Technological Protection Measures (TPMs)
Under Bill C-32, TPMs (e.g. copy protection on works such as a DVD, iTunes track, eBook, or software) would receive protection from hacking by treating instances of TPM circumvention as copyright infringement. User groups are dissatisfied with the provision as it applies even when the product is legally acquired. Educational institutions, have proposed that Bill C-32 be amended to permit the breaking of digital locks for any purpose that does not infringe copyright, and to permit the provision, marketing or importation of devices and services to enable digital locks to be broken for a non-infringing purpose. However, creator groups argue that TPMs are essential for new and innovative business models to emerge. For example, the 99 cent iTunes movie rental (which destroys itself after a set period of time due to a TPM) could become a replacement to the $15 iTunes movie purchase (which remains on the users hard drive and can be transferred to and played back via various devices such as an AppleTV) if a person could simply circumvent the TPM that protects the rental and convert it into a permanent copy. Notably, the Bill states that an individual who circumvents a TPM could not be ordered to pay statutory damages, rather, the copyright holder would have to prove their damages. The Bill contains a number of exceptions for circumventing a TPM such as unlocking a cell phone, for the purposes of law enforcement and national security, encryption research, and access for persons with perceptual disabilities among others. The Governor in Council can also expand the list of exceptions through regulation.
Enabling Circumvention & Infringement
Bill C-32 prohibits the distribution and marketing of devices, such as software designed to copy video games, that can be used as TPM-circumvention tools. Under Bill C-32, it is also considered copyright infringement to set up services to enable infringement (e.g. online torrent tracker sites which one can access to then download copyright protected materials). While the enabling provisions are welcomed by creators, they recommend clarifying Bill C- 32's language to ensure that services that are not just designed, but in reality operate, to enable infringement are also captured by the provision. Similarly, they argue that amendments are required to ensure rights holders obtain the full range of legal remedies against enablers, notably statutory damages.
Making Available Right
Bill C-32 allows for a "making available right" which means that performers and record labels have the exclusive right to make their sound recordings available to the public over the internet (e.g. iTunes) and to sell or transfer ownership in physical recording for the first time.
Moral Rights for Performers
Bill C-32 grants performers moral rights (i.e. the right to protect the integrity of their works) and to have the works attributed (or not attributed) to them as they choose (e.g. by name, pseudonym, or anonymously).
Ownership of Photographs
Bill C-32 makes the photographer the owner of copyright in their commissioned works which would bring the ownership of copyright in line with other creators such as authors and performers. Under the current Act, the first owner of copyright in a photograph is the person who commissions the photograph unless there is a contract to the contrary.
LIMITATIONS ON RIGHTS
Internet Service Providers (ISPs) and Search Engines
Bill C-32 would confirm that ISPs (e.g. Rogers) or information location tools such as search engines do not infringe copyright when they act strictly as communications intermediaries for the infringement activities of their customers i.e. merely provide the means to access the Internet or another digital network. Bill C-32 would also formalize the already used "notice and notice" regime of ISPs contacting and informing a suspected copyright infringer of copyright owners' desire to enforce their rights. The ISP or search engine's obligation would be to store the subscriber's IP information for six months or one year if a court action is initiated by the copyright holder. Notice and notice is under attack by creators who favour a more time-sensitive "notice and take down" system to stop infringement i.e. when the ISP is contacted by the copyright owner it immediately takes down or blocks access to the content. A notice and notice regime is seen by creators as an especially weak deterrent when combined with the lower limits - or elimination in many cases - of statutory damages against an alleged infringer under Bill C-32.
Bill C-32 provides that it is not copyright infringement to host i.e. provide "digital memory", which another person then might use to store an infringing copy of a work, unless notified by a court of the infringement. Examples of this type of service would be online storage services such as Hotfile or Megaupload which freely - and for a premium - provide large amounts of online storage space. The Hosting Services provision is under attack by creators given the prevalence of these digital storage lockers as sources of unauthorized copyrighted content. Also problematic is that under Bill C-32 statutory damages are not available against persons who have been found liable for enabling infringement.
Known as the "YouTube" clause, Bill C-32 would permit individuals to create and upload "remixes" or "mash-ups" i.e. works that use existing copyrighted content, when done for non-commercial purposes, providing that the new work has no substantial adverse impact on the original work, is from a legal source and the source is identified. This provision has raised concerns among creator groups as it i.) legitimizes previously infringing activities, ii.) eliminates existing sources of revenue via negotiated agreements or collective licensing, and iii.) allows sites like YouTube to leverage copyright-protected work for commercial gain with no obligation to compensate the creators of the original content. Notably, amongst all the countries who have ratified the WIPO treaties, Canada would be the only one with such a provision. Also of note, the provision for user-generated content is not limited to the online dissemination of digital content.
If the source content is legally acquired in that it is not borrowed or rented, Bill C-32 would create exceptions to infringement for "format shifting" (e.g. transferring music from a purchased CD to an iPod) and "time shifting" (e.g. recording television programs for later viewing) when done solely for private use. These exceptions do not apply, however, in situations where the creator has chosen to protect the work by a TPM. Notably, reproductions made will not give rise to any additional remuneration to creators despite their exclusive right of reproduction set out in the Act. Such remuneration is for example, currently collected via tariffs by collective societies i.e. organizations representing large groups of rightsholders. Additional remuneration to creators may, however, occur if reproductions are made onto media like CD-R's and minidiscs which are already subject to a blank media levy.
Bill C-32 would permit the copying of software, i.e. computer programs, for interoperability (the ability of the software to work with or use another system), encryption, research, and correcting security problems.
Bill C-32 expands the scope of the "fair dealing" provisions in the Act (which allow the use of copyrighted material without the permission of the copyright owner) from news reporting, criticism, research and private study to include education, parody and satire. The inclusion of "education" in the list of fair dealing exceptions has raised concerns for creators as uses which once generated revenue streams for creators, i.e. unit sales of educational books and audiovisual works and reproduction license fees collected via copyright royalty tariffs, would be greatly reduced.
Temporary Reproductions for Technological Processes
Bill C-32 would permit the making of copies of protected works temporarily when done as an essential part of a technological process, i.e. cached temporary versions will not be considered infringements. This provision would apply, for example to, internet search engines who use caching to speed up the delivery of their services.
Bill C-32 permits a wide range of new activities by educational institutions. The proposal would permit these institutions, subject to certain limitations, to reproduce a protected work or to do any other acts necessary to display it, to engage in activities that would normally be an infringement of copyright in order to facilitate distance learning over the internet, and to make and communicate digital reproductions of a work where a license for traditional reprographic reproduction already exists. These types of provisions are subject to criticism by creators groups for decreasing existing sources of reproduction and performance revenues exercised either through direct licenses entered into between the institutions and creators or the payment of applicable copyright royalty tariffs by the institutions. Educational institutions while generally supportive of the language in the Bill would also like amendments e.g. that the requirement that the institution destroy any recording of an online lesson within 30 days after the students receive their evaluations be removed so that the materials may be reused in future course offerings, and the elimination of statutory damages where copyright is infringed unintentionally.
Libraries, Museums and Archives
Bill C-32 would permit libraries, museums and archives to make copies of works in their permanent collections in an alternate format where the original format is obsolete or the technology required to use the original is unavailable or becoming unavailable (e.g. libraries may also distribute materials electronically subject to measures where the recipient prints only one copy, does not communicate the copy further and ensures that it is destroyed within five days. Similar to the educational exceptions discussed above, these provisions are subject to criticism by creators groups for decreasing existing reproduction and performance revenues. Educational institutions have proposed amendments which would permit the recipient of an inter-library loan to retain a copy in digital format indefinitely.
Bill C-32 would grant broadcasters, i.e. radio stations, a 30- day exemption for making copies of sound recordings. This provision is subject to criticism by creators groups for ignoring the exclusive right of the creator to make and authorize the making of such copies. Creator groups are also concerned that this exemption will result in the elimination of the reproduction revenues currently collected from radio stations. Broadcasters argue that they should pay once for playing music on the air (where they yield revenue) and not for technical digital copies.
Under Bill C-32, the statutory damages available to a copyright holder are broken down into two categories: "commercial" and "non-commercial" copyright infringement. The current range in the Act of up to $20,000 in statutory damages would continue to apply in a "commercial" context whereas in a "non-commercial" context (e.g. an individual who downloaded music from a peer-to-peer file-sharing service) damages would be capped at between $100-$5,000 for all infringements in a single proceeding, regardless of the number of works infringed. These provisions are subject to criticism from creators as i.) the courts previously had the discretion to reduce damages in cases of "non-commercial" infringement, and ii.) the high cost of litigation could now outweigh the potential remedies available.
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