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DMCA sneaks across border up north, quietly invades Canada

DMCA sneaks across border up north, quietly invades Canada
DMCA sneaks across border up north, quietly invades Canada

-------- Original Message --------
Subject: 	Canada Introduces DMCA-Style Copyright Legislation
Date: 	Mon, 20 Jun 2005 16:15:40 -0400
From: 	Michael Geist  
To: 	Declan McCullagh  


In case you're covering the story, I'd thought I'd forward my initial
thoughts on the introduction of new copyright legislation in Canada.
I've posted them online at . 
Happy to discuss further if you like.



As expected, this afternoon the federal government introduced its
copyright reform bill (not yet online as far as I can tell). In this age
of instant analysis, new legislation does not work particularly well
since it requires considerable study and scrutiny to develop a full
sense of its implications.

However, since government telegraphed its intentions four months ago, it
is possible to provide at least a quick perspective (full caveat that
this a quick read and subject to change upon reflection) on the
statutory implementation of the March plan. I'll have much more to say
in the days ahead but my immediate impression is that the recording
industry is the big winner with an enormous basket of new rights and
individual Canadians are the big losers as the bill does little to
address their interests.

There is simply no denying that the lobbying efforts of the copyright
owners, particularly the music industry, have paid off as they are the
big winners in this bill. The bill focuses almost exclusively on
creating new rights for this select group including a new making
available right, legal protection for technological protection measures,
legal protection for rights management information, the ability to
control the first distribution of material in tangible form, new moral
rights for performances, a reproduction right for performers, and an
adjustment in the term of protection for sound recordings. The bill also
includes a statutory notice and notice system that will virtually compel
Internet service providers to notify subscribers of alleged copyright
infringements and to retain relevant personal information for 6 months.

As expected, the TPM provisions do not cover devices that can be used to
infringe. Rather, they target persons who circumvent for a purpose that
is a copyright infringement or for the purposes of making a private
copy. The provisions also target people who offer services to
circumvent. Note that there is further limitation on users here as
subsequent actions with circumvented material that prejudice the owner
of the copyright is not permitted. In other words, the circumvention may
be lawful, but the subsequent use of the work may not.

There are also some new limitations on what is can be done with copies
made under the private copying system. In particular, it becomes an
infringement to knowingly sell, rent, trade, distribute or communicate
copies made for private use under Section 80(1). This does not alter the
right to make a personal copy (including a P2P download) but does set
some tough limits on what users are entitled to do with those copies.

While the recording industry is the big winner, there are several other
groups that did well including photographers, who obtain a basket of new
rights including the removal of provisions focusing on their rights in
commissioned photographs.

Internet service providers have also done very well. They obtain clear
provisions that they are not liable for caching or other hosting of
third party content. Further, there is the notice and notice system,
which obligates ISPs to send a notice if there is a claim of copyright
infringement and retain "records that will allow the identity of the
person to whom the electronic location belongs to be determined" but
they are permitted to charge for the service (the government will set
the maximum fee). ISPs that fail to abide by these provisions face only
statutory damages of either $5000 or $10,000.

Anyone who has followed copyright reform history will not be surprised
to learn that individual Canadians are the big losers today. Although
the bill could have been worse (the U.S. version of the law is even more
user-unfriendly) and there are some provisions that permit the use of
digital works in an electronic and teaching environment (filled with all
sorts of limitations) that is cold comfort to millions of Canadians who
find themselves with a bill that does virtually nothing to address their

- Statutory damages, which are desperately in need of reform, are not

- A move from fair dealing to fair use, recommended by a government
study more than 20 years ago (and now being considered by Australia) is
nowhere to be found.

- Elimination of crown copyright does not merit a single mention.

- Greater transparency for Canada's copyright collectives, which collect
hundreds of millions each year, but provide precious little information
in how that money is spent or distributed is not addressed

Even where the Canadian model provides some relief in contrast to the
U.S. approach, it still does not go far enough. The best example is the
anti-circumvention provisions, which provide legal protection for
digital locks. The Canadian provisions are certainly better than the
U.S. Digital Millennium Copyright Act since they focus on actual
infringers, thereby avoiding targeting devices and providing a defense
against circumvention where the purpose was not to infringe copyright.

Those provisions are good, but not good enough. For example, the
Canadian bill does not provide any additional privacy protections. That
suggests that Canadians that circumvent a technology protection measure
in order to avoid automated collection of their personal information
will be committing copyright infringement.

Moreover, as noted above, the defense expressly excludes private copying
from its ambit. Therefore, Canadians may be asked to pay several times
for the same work as they may pay once for the CD, once for the digital
download, and once through the private copying levy for the blank CD.
Attempts to circumvent protections on the CD in order to make a personal
copy (a copy already paid for via the levy) will now constitute
infringement in Canada.
Lots more to come in the days ahead=C5=A0


Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124 
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