Alliance Activities
in cra-briefings31 · November 15, 2005
A FEW INSIGHTS ON INSIGHT...
Several CRA members attended a conference entitled Copyright Reform in Canada: Meeting the Challenges of the Digital Age held at the Old Mill in Toronto in September 15-16. The event was put on by Insight Information, a US based company that bills itself as a leading provider of continuing education for senior executives and professions throughout Canada and the US. Many of the country’s lawyers, politicians and business people who focus on copyright issues attended, including the parliamentary secretary to the Minister of Canadian Heritage, and now the Minister of Industry as well, Sarmite Bulte.
During the two-day session, the participants engaged in a substantive review and criticism of Bill C-60, the bill to amend the Copyright Act tabled last June. Three issues took the fore in the discussions: the protections for TPM’s, ISP Liability and a number of drafting issues with the bill.
Barry Sookman, Chair of the Intellectual Property Group at McCarthy Tetrault LLP in Toronto, and one of the Conference’s co-chairs, led the review of the provisions offering protection to Technological Protection Measures (TPM’s). In order to be in a position to ratify the WIPO treaties Canada must offer protection for TPM’s that, according to Article 11 of the treaty, offers “adequate legal protections and effective legal remedies” for TPMs and copyright owners both. Bill C-60 proposes protection that allows copyright owners to seek remedies against persons who know or ought to know they have broken a TPM or who use material from which they know or ought to know the TPM has been removed. However, the copyright owner must prove that the user knew or ought to have known and there is no provision in the bill allowing copyright owners to seek remedies against companies or individuals that provide the tools for circumvention. The latter point raised some concern that the TPM protection offered by the bill does not go far enough. In fact the protection Canada is proposing is dramatically lower than that instituted by our major trading partners including the US and the EU. Sookman indicated that there is currently no country that has ratified the WIPO treaties with such weak protections for TPM’s The contents of Mr. Sookman’s presentation can be viewed at www.mccarthy.ca.
There was an interesting debate between Graham Henderson, president of CRIA (Canadian Recording Industry Association), and several representatives of Bell and Telus, Canada’s major ISP providers, on the merits of the provisions removing ISP liability for the movement of infringing content over their networks. The Bill C-60 provisions can be summarized as follows. Instead of taking the approach of a Notice and Take Down regime as seen in the US Digital Millenium Copyright Act (DMCA), Bill C-60 opts for a Notice and Notice regime which very clearly puts much less power in the hands of creators for encouraging the removal of content that infringes their copyright. ISP providers insisted that there is no need for a Notice and Take Down regime in Canada; they argued that such a regime could lead to the removal of content that did not infringe copyright. Under a Notice and Notice regime, when and ISP receives notice of infringement occurring over its networks it is required to send that notice on to the owner of the web site and keep information on record related to that notice for a period of 6 months in order to facilitate the commencement of any law suits. Henderson argued that a Notice and Take Down regime would be the more effective route to monitoring the Internet as removal of the content would often satisfy the copyright owner, lead to fewer law suits and lower costs and court congestion. Nevertheless, it appears Canada will have nothing more than a Notice and Notice regime. Notably, there was also concern expressed that due to the way the bill is currently drafted there appears to be a loophole through which P2P networks may be able to operate in Canada without incurring liability. It will be interesting to see if the government sees fit to close this loophole as the bill moves through legislative process.
Many of the bureaucrats involved with the bill have acknowledged that the drafting was rushed and accordingly there are a number of places in the bill where the government’s intention is not clear. The same bureaucrats have indicated that there will be no substantive changes to the bill as it works its way through the parliamentary process, though a number of these drafting errors will be rectified.