A few months ago, the Globeandmail.com’s Barry McKenna reported that “Canada has earned a dubious distinction as a world hub for illegitimate file-sharing websites and a leader in Internet piracy.”
In addition, Canada is in the “embarrassing position of harboring five of the top eight remaining unauthorized BitTorrent sites, including the new number-one ranked site, Isohunt,” wrote technology attorney Barry Sookman.
To add further insult to injury, the Obama administration put Canada on its infamous blacklist of shame — a “priority watch list” of intellectual property laggards including the likes of China, Russia and Venezuela.
To quell the growing body of critics, Canada has repeatedly vowed to put a framework in place to combat this unfettered piracy. This framework was recently unveiled through Bill C-32, the Copyright Modernization Act — the latest attempt to amend the Canadian Copyright Act.
Proposed Amendments
The proposed amendments address numerous issues, many of them technological in nature, including fair-dealing style permissions; digital rights management; viewer-initiated content viewing; and defenses from infringement for Internet Service Providers (ISPs) and network services providers in their capacities as such.
If the proposed amendments are passed, the bill would permit fair dealing style uses in respect of noncommercial user-generated content; private reproductions; time shifting; backups; educational institutions; libraries; archives; museums; perception disabilities; interoperability; encryption research; network security; temporary technological reproduction; and others. In many respects, this codifies typical consumer usage, albeit somewhat restrictively.
More importantly, in an attempt to address Canada’s dubious blacklist distinction, the bill renews attempts to include expansive rights with respect to “technological protection measures and rights management information” (DRM). Moreover, the bill would treat prescribed circumvention of these means as copyright infringement.
Proposed Punitive Measures
The proposed DRM amendments prescribe a separate class of statutory damages for noncommercial infringements, along with rules for proceeding against a noncommercial infringer. In terms of timing of the enforcement, the proposed DRM amendments would require that a copyright holder proceed in a one-time manner against a noncommercial defendant for all perceived claims at the date of the election.
All other claims not raised would be barred by statute, so as to ensure that from a practical standpoint, the legal system will not be tied up with an unending litany of claims. For commercial infringers who knowingly circumvent proposed DRM amendments, the bill details fines of up to CA$1,000,000.00 ($25,000.00 on summary conviction) and up to five years imprisonment (six months on summary conviction).
However, the proposed DRM does provide for certain exceptions. For example, use of copyrighted material for certain security and research purposes would be allowed under the bill. In addition, certain privacy concerns that may require a determination of whether personal information has been collected so as to stop further collection is also an allowable exception under the bill.
From a nontechnical standpoint, other amendments include statutory remedies for moral rights infringements, an increased limitation period of three years from discoverability of copyright infringement, removal of the special provisions in respect of ownership of first copyright in portraits, expansive recognition of separate copyright in a performer’s performances, protection of availability dates, and the ratification and subsequent adherence to international treaties that Canada has entered into since the last major copyright reforms in 1997.
Too Little Too Late
While Canada is striving to comply with international treaties and to shed its unfavorable distinction of being on the blacklist of shame, reactions are mixed regarding the proposed DRM amendments. Some proponents have stated that it is much improved over the failed 2008 bill in respect of fair use exemptions.
On the other hand, critics contend that priority of DRM over fair use in the present proposal is inherently flawed. Ironically, the minister responsible for the proposed DRM amendments has acknowledged that the music industry, which was actively lobbying for the amendments, may be moving away from its present business model, which is thought to punish customers, and the DRM amendments may no longer be so important.
C. Donald Brown is an intellectual property lawyer atHeydary Hamilton. Brown’s practice includes patents, trademarks, copyrights and industrial designs, as well as IT matters.
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While pirating will always exist to some degree, if Canada would allow legitimate on demand services like Hulu or NetFlix I AM of the opinion that piracy would fall off substantially.