Digital Copyright Reform in Canada

Digital Copyright Reform - Background

• A Framework for Copyright Reform
• 2001 Consultation Paper on Digital Copyright Issues
• Four Key Digital Copyright Issues
• Attempts at Legislative Reform
  

A Framework for Copyright Reform

In 2001, the federal government initiated discussions of copyright reform in its release of A Framework for Copyright Reform, recognizing that “more than ever… change continues to be required to adapt to the current economic, social, technological, and international environment.”

The government enumerates four key objectives that the reform process should address:

• Creation of economic opportunities for Canadians in the “new economy”
• Stimulation of production of cultural content and diversity of choice
• Encouragement of a strong Canadian presence on the Internet
• Enrich learning opportunities for Canadians

The Framework for Copyright Reform laid out a number of issues that warranted attention during the reform process, though the list was not intended to be exhaustive and new issues have certainly surfaced since 2001: 

• Access Issues: How can we appropriately balance the administration and protection of copyrighted works with fair access to those works in a digital environment?  This would entail revisiting the various exceptions to copyright and “to consider the need for new ones”
• Database Protection: Under current law, only “original” databases are protected by copyright – should “non-original” databases be protected under copyright law, or by some other legal mechanism?
• Digital Issues: This blanket term is used to describe those copyright issues that have surfaced alongside the emergence of digital technology, including:
• Providing rightsholders the exclusive right to make sound recordings available on an “on-demand” basis over digital networks (in other words, a right that would prevent people from transmitting music files over the internet)
• Prevention of circumvention of technical protection measures or tampering with digital rights management systems (also known as anti-circumvention laws)
• Clarifying the extent to which Internet Service Providers (ISPs) should be liable for the transmission or storage of copyrighted materials over their networks
• Internet Retransmission of Broadcast Programs: Currently, the retransmission of copyrighted works over TV or radio signals requires a compulsory licence whereby royalties and tariffs are paid to the Copyright Board. Should this compulsory licensing system apply to retransmission of works over the Internet?
• Performer Rights: In the digital context, should performers be granted the same or similar rights as copyright holders in the online communication of their performances?
• Technology-Enhanced Learning: The Internet brings new educational opportunities through the increased availability of information – what exceptions or limitations should be in place to encourage the provision of education in a digital environment?

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The 2001 Consultation Paper on Digital Copyright Issues

The same year, the federal government released the 2001 Consultation Paper on Digital Copyright Issues, which stated:


Outlining concerns by stakeholders that amendments to the Copyright Act should not “have the inadvertent effect of working against a Canadian presence if technologies develop along particular or unpredictable pathways,” the paper invited public consultation on a number of specific issues:

• Should the Copyright Act be changed to allow a “specific right for on-demand communication”?
• Do we need legal mechanisms to deter the circumvention of technological protection measures?
• Do we need legal mechanisms to deter tampering with rights management information?
• Do we need legislative measures to address Internet Service Provider liability relating to copyrighted works transmitted over digital networks?
• What is the appropriate balance between rights holders, intermediaries, and users in the digital environment? What intervention, if any, is needed to maintain or restore this balances?
• Do the challenges to copyright truly represent challenges to “core copyright principles,” or are they more challenges to existing business models?
• Assuming intervention could hinder new models of production and dissemination, and the rapid rate of technological change and evolution, when is intervention an appropriate response?
• Overall, do the approaches suggested in the paper contribute to a copyright framework which promotes Canadian public policy objectives?

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Four Key Digital Copyright Issues

The Consultation Paper went on to outline a number of proposals, identifying key concerns with each one, and invited public consultation on each of them - the results of which are summarized in the Stakeholder Commentary section.  The proposals included addressing these four key digital copyright issues:

• Introduction of a "Making Available" right for producers and performers
• Legal Protection of Technological Measures (TPM)
• Legal Protection of Rights Management Information (RMI)
• Clarification of Internet Service Provider (ISP) Liability

Making Available Right

The ability of internet communication technologies to enable massive reproduction and dissemination of works without consent of the copyright holder raises concerns that once a work is made available over the Internet, their ability to control unauthorized transmission or reproduction of that work is hampered. The idea of a “making available right” emerged during WIPO Treaty discussions, recognizing that the Berne Convention for the Protection of Literary and Artistic Works may not adequately ensure that all categories of works would be protected by the existing communication right, or that “on-demand” services that allow access to works at a time and location of their choosing may not be addressed. Article 8 of the WIPO Copyright Treaty (WCT) and Articles 10 and 14 WIPO Performances and Phonograms Treaty (WPPT) thus extend the exclusive rights of authors and performers or producers to “communicate to the public” all categories of works, explicitly including the right to make the work available to the public “in such a way that members of the public may access them from a place and a time individually chosen by them.”

The Copyright Act currently provides authors of works the ability to control the dissemination of copyrighted material through the reproduction right and the right to authorize communication. However, these same rights do not apply to performers or makers of sound recordings – only performers have a right to determine whether live performances are communicated to the public by telecommunication (s. 15).  As a result, the paper maintained that a new "making available" right would not be necessary to address these issues within the Canadian Copyright Act pertaining to authors, since the on-demand communication right is already covered by the right the authorize the communication of a work to the public by telecommunication.

However, since the Act does not provide performers or sound recording makers the exclusive right to make performances or recordings available to the public on an on-demand basis, the Paper recommends amending the Act to provide a making available right for performers and producers that would comply with the WPPT (but would not include on-demand streaming).

Key concerns:

• The limitation of the right to on-demand communications ignores streaming – some stakeholders want the government to go beyond the minimal requirements of the WPPT and include streaming in the right
•  Copyright owners express concern over how the right would work in practice – would three separate rights (author, producer, performer) hamper the exploitation of recorded performances?

Legal Protection of Technological Measures

Rights holders argue that technological protection measures (TPM) that enable them to prevent infringement of the material in an online environment and are a major part of their strategy to disseminate works. Should the Copyright Act be revised to create penalties or sanctions to those who engage in activities related to the circumvention of these protective measures?

Article 11 of the WPT and Article 18 of the WPPT both propose a framework for the “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used by authors, performers, or producers in connection with the exercise of their rights (better known as anti-circumvention laws). 

Key Concerns:

• Copyright holder concerns must be discussed against the backdrop of current exceptions and limitations to copyright protection that serve important policy objectives (such as fair dealing provisions, exception provisions, and the finite term of copyright).
• What will the effects be on the private copying regime, if one's ability to make copies of sound recordings for personal use is impeded by technological measures?
• Are there privacy considerations that need to be addressed?

Legal Protection of Rights Management Information

Rights Management Information (RMI) may in some cases overlap with TPM, but the paper discusses them separately as any identifying information pertaining to the title, author/first owner, and an identifying code for works. Copyright holders have expressed concerns that the integrity of RMI, which has gained importance in the verification of identity of works in an online environment, is not adequately protected under current law. Some believe that legal deterrents are required to prevent the tampering or manipulation of RMI, as reflected in Article 12 of the WPT and Article 19 of the WPPT.

The Paper believes the WIPO articles could be the basis to create new offences and new types of secondary infringement under the Copyright Act.  Secondary infringement would include the removal or alteration of RMI, and would including distributing or communicating those works to the public where it is known that RMI has been tampered with.  A separate offence might also be provided for removal or alteration of RMI to “enable or abet infringements”.  The Paper proposes two options:

• Option A – RMI would be defined consistently with WCT and WPPT
• Option B – RMI would be defined to include information identifying the work, author, first owner of copyright, and any codes that represent such information

Key Concerns:

• The shifting accuracy of the RMI posed concerns, since ownership can change over time, leading to confusion amongst users – moreover, different industries are moving towards different tacit consensus about adopting a simple code (i.e. a/v works) – would RMI be necessary in this context?
• Certain “terms and conditions” on the work may not be legally binding in Canada where they are contrary to public policy – should the law specify that legal protection of this information does not imply validity in Canada?
• How should the law treat overlapping technologies (i.e., those that are both RMI and TPM)? Would one who tampered with these face double sanctions?
• Privacy Issues - will personal information be at risk?

Internet Service Provider (ISP) Liability

The current Copyright Act does not take into account ISP liability. The Paper contends that Canadian digital presence will be enhanced by a strong and competitive ISP sector. The ISP community maintains that they do not have the capacity to monitor or assess the legitimacy of the materials passed through their facilities from a copyright standpoint. The paper recognizes that technology requires that reproductions of all kinds are necessary to the proper and efficient functioning of a networked environment (i.e., caching, packet switching), but also that answers to the following questions raise “considerable difficulties": which transmission processes that result in creation of copies, however transient, amount to reproduction under the Act? Where are such reproductions made? Whose server and storage facilities are involved where the process is automated?

The Paper proposes a notice-and-takedown process that would be subject to contractual arrangements between ISPs and rights holders, which would include:

• A limitation on liability for copyright infringement: ISPs would not be liable for infringements committed over its facilities by a third party to disseminate protected works, nor for reproductions made in the course of the communications process (caching).
• a "notice and takedown" provision: ISPs would not be liable for hosting infringing materials unless it fails to block access after receiving notice (this would not include caching or purely intermediary functions related to hosting)
• a limitation of liability for any economic harm resulting from compliance with the notice and takedown regime.

Key Concerns:

• Notice and takedown provisions require overhead expenses not offset by compensation, and could reduce incentives for ISPs to participate in voluntary, licensing based initiatives
• Notice and takedown provisions may require the removal of materials merely based on allegations by the rightsholder, whether or not they are infringing

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Attempts at Legislative Reform

Each of these key issues has been addressed in both Bill C-60 and Bill C-61, though in different ways. For example, both approached ISP liability using a "notice and notice" regime rather than the proposed "notice and takedown" regime. Other issues have also been addressed judicially - for example, the Federal Court in SOCAN v. CAIP held that ISPs are not liable for the transmission of unauthorized material over their networks when they are merely acting as intermediaries. See the summaries of Bill C-60 and Bill C-61 for more detail as to how these issues were dealt with in the proposed legislation.

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