Canadians fed US-style copyright legislation? I wish!

In an article in p2pnet, Charlie Angus, Digital Spokesperson for the New Democratic Party,said that “Under Stephen Harper, Canadians are being force-fed US-stylecopyright legislation.” When I read this, all I could think is “I wish”!

While I’ve written about how some aspects of C-61 are lifted near-identical out of the USA’s DMCA,I have not yet put them in context with the rest of their copyrightact. Bill C-61, like the DMCA, is a set of changes between the previousCopyright and a new Copyright. US copyright law was more fair beforetheir DMCA than Canadian law is now, and if Canada takes the directionarticulated in C-61 we will become that much worse than US law. As badas this would be, I would be happier to have Canada simply adoptcurrent US law (DMCA and all) than to apply Bill C-61 to currentCanadian law.

An important detail to realize with US law is that in theirCopyright Act of 1976 codified what they call “Fair Use” as follows(Copyright Act of 1976, 17 U.S.C. section 107):

“TITLE 17 > CHAPTER 1 > section 107

section 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fairuse of a copyrighted work, including such use by reproduction in copiesor phonorecords or by any other means specified by that section, forpurposes such as criticism, comment, news reporting, teaching(including multiple copies for classroom use), scholarship, orresearch, is not an infringement of copyright. In determining whetherthe use made of a work in any particular case is a fair use the factorsto be considered shall include—

(1) the purpose and character of the use, including whether suchuse is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar afinding of fair use if such finding is made upon consideration of allthe above factors.”

Parody is not specifically mentioned, but it doesn’t have to besince the word “including” is used which suggests the list isn’tintended to be exhaustive. Parody that is critical of the work itselfis easily considered criticism. Where there are grey areas and ongoingcaselaw is satires which is using a work to poke fun at or comment onsomething else.

This concept of Fair Use was intended to be retained with recent changes to US copyright law, and the USA DMCA (Bill Number H.R.2281 for the 105th Congress, under Bill Clinton) includes the following statement in “Sec. 1201. Circumvention of copyright protection systems”:

“(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in thissection shall affect rights, remedies, limitations, or defenses tocopyright infringement, including fair use, under this title.”

It is clear that the USA’s DMCA modified law was intended to retainthis ability to be interpreted by courts in a way that is fairaccording to well understood criteria.

Lets contrast this with Canadian law modified by Bill C-61.

First, Canada does not have a living Fair Use regime. Our section 29 (FairDealings) has a few exceptions to copyright, but they are nowhere near as extensive as the USA’s Fair Use regime.

“Fair dealing for the purpose of research or private study does not infringe copyright.”

“Fair dealing for the purpose of criticism or review does not infringe copyright”, as long as the source is mentioned.

“Fair dealing for the purpose of news reporting does not infringe copyright”, as long as the source is mentioned.

That’s really it, and without any word like “including” it suggeststhis list is intended to be exhaustive.. Nothing about “comment” ,“teaching (including multiple copies for classroom use),” or“scholarship”. There are a number of exceptions that apply to“Educational Institutions” under Canadian law, but given how muchlearning and teaching happens outside of these closed institutions itis obviously not comparable.

You might then say to me: but the Minister of Industry Jim Prenticeand the Secretary to the Minister of Industry Colin Carrie have beensaying (YouTube)that the “the educational exceptions”, “the format shifting exemptions”and “the time shifting exemption” are all “made in Canada” and provideimportant balance for “consumers”.

For those of us who have read the bill (which I’m not convincedincludes Mr. Prentice or Mr. Carrie), we notice that these provisionsare nowhere near as fair and balanced as US law in those same areas.

Under US law their existing Fair Use regime was used in the case ofSony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417(1984), also known as the “Betamax case”, to confirm that making ofindividual copies of complete television shows for purposes oftime-shifting does not constitute copyright infringement. It is widelybelieved that shifting content between devices and formats would alsobe confirmed to be fair use under US law.

Under Bill C-61 the Conservative government clearly stated that theeducational, format shifting and time shifting exemptions did not applyif one had to circumvent any type of technological measure in order todo so. This is the opposite statement to the DMCA’s “OTHER RIGHTS,ETC., NOT AFFECTED”. While under the DMCA Fair Use is intended to trumptechnological measures, under C-61 technological measures are intendedto trump our already excessively limited fair dealings.

Definitely “made worse in Canada”.

The so-called educational exceptions are tied to educationalinstitutions (in other words, useless to the majority of us — unlike USlaw), and most are widely believed by actual educators (rather thanuninformed Ministries of Education) to be unnecessary under existinglimited fair dealings rules.

If that doesn’t seem bad enough, Bill C-61 makes things even worse.

A contract (read: imposed and not often read or readable End UserLicense Agreement, or EULA) for a download over the Internet candisallow device shifting. Of course, neither the words “download” or“Internet” are adequately defined in the bill to avoid confusion onwords that have different meanings for different people. Is the“Internet” any network using TCP/IP (like digital cable services might,and which many LAN’s do), or any network with a publicly routeable IPaddress, or…what?

A contract for a video-on-demand service can disallow time shifting.The exception also doesn’t apply to streaming over the Internet, onlytraditional broadcasting (whatever that means, given convergence — isit digital television broadcasting or Internet streaming if the serviceuses a TCP/IP based network?) I can only keep the the recording as longas necessary to listen to or watch at a more convenient time (and howlong is that — too vague for a law that has draconian statutorydamages!) The exception specifically does not apply a “network personalvideo recorder service”, an option that a number of cable/etc companieswanted to offer in Canada.

I could dive into the additional exceptions and limitations to thoseexceptions that apply to Educational Institutions, but it doesn’tmatter given unlike US Fair Use this doesn’t apply to the majority ofus.

Election time!

We are about to go into an election (likely to be called on Sunday),and Bill C-61 will die on the order paper. We shouldn’t simply rejoiceand think that this battle is over, but recognize the opportunity wehave.

No matter who forms government it will be the case that the vastmajority of elected politicians will have no clue what the digitalcopyright debate is about, or why it is so important to Canada’s placein the new economy. This is, of course, unless we do everything we canto be involved in the election and find out who understands the issues,and help them get into government.

I realize I’m repeating myself, but this is an issue whereindividual Members of Parliament matter more than political parties, asit is really that tiny subset of people who will be in any committeestudying the next tabled copyright bill that will have the requiredinfluence to allow us to have copyright that is fair.

If you bump into a candidate that really believes that C-61 was fairand balanced, let us all know so we can do our best to boot them out(or simply keep them out).

Not just against C-61, but for something…

One obvious modernization to Canadian law we must be calling for isto adopt a living Fair Use regime, possibly modelled after the US law.As an improvement it could include updates from caselaw (such as theBetamax case) to make very clear that time, device and format shiftingare Fair Use, without the embarrassing limitations that we saw in C-61.

While good Copyright law wouldn’t mention technological measures atall (as said elsewhere, these are provincial contract, eCommerce andproperty law issues), our law could be radically improved byincorporating Fair Use.

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Jim Love, Chief Content Officer, IT World Canada

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