Modern copyright legislation: a balancing act

by

Bernard Courtois
President and CEO, ITAC

Last week, Bill C-32 was tabled in the House of Commons. It contained a variety of amendments to our copyright legislation and it couldn’t have come at a better time.

Currently in the midst of the federal government’s Digital Economy Strategy consultations, many within industry, the media, and the public had noted that modern copyright legislation was one major item Canada was missing. While privacy, spam, malware, identity theft, online child abuse, and other legal issues are being addressed, a Canadian copyright law that pertained to the internet age had not – until last Tuesday.

Good copyright legislation is, in essence, a balancing act between the interests of consumers and the creators of intellectual property (from software publishers to musicians and everyone in between). And the legislation tabled last week appears to take the right approach – a common sense, balanced approach.

At ITAC, we approach this from the standpoint of leadership in the global digital economy. While we may not lead by being the first to draft 21st century copyright law, we can show leadership by learning from the experience of others and striking a more appropriate balance.

This new copyright bill will not go all the way for one group at the expense of another, and ITAC supports this approach. For example, while we believe in protecting the rights of creators, we do not want customers to be knocked off the internet by a commercial enterprise because their child or grandchild has been illegally downloading music, so we support the notice-and-notice regime in the bill.

The law contains much needed updating and clarification of consumers’ rights: the right to transpose content on a more convenient platform; the right to time shifting; the right to create a backup copy. It allows technology to be used to better serve customers including replication on a network, caching, hosting and the provision of information location services without incurring additional payment obligations for something already paid for. And the bill identifies no difference between the PVR in your house and the PVR your network provider provides for you.

Arguably the most controversial issue within Bill C-32 is digital locks. Some argue that digital locks are not strictly a copyright matter, and as such, should not form part of this legislation. Fundamentally though, we must ask ourselves: is this the right thing to do? My view on this is best illustrated by looking at the Canadian gaming industry. Canada is recognized as a worldwide as leader in this market, and our performance within it represents some of our clearest competitive advantages in the digital economy, period. The entire gaming market is predicated on a digital locks model and consumers love the product. It would seem strange, if not absurd, if the Canadian government wanted to undermine the business model of one of its most successful industry vectors.

Note that if there are people who refuse to learn the lessons of the past (e.g., the Sony Rootkit debacle), this new legislation gives government the authority to wade in and remove legal protection by regulation. The legislation even sets out what will be taken into account if government ever had to perform such a regulatory intervention. For example, government will assess whether a lock is needed to make the product viable, whether the value is being taken away from the consumer in the process, whether criticism or research is being impeded, and so on.

The legislation correctly distinguishes significantly in terms of remedies between infringement for commercial and non-commercial or personal purposes, and sets out a proportionality standard in determining penalties. We don’t want to see an ordinary consumer sued for hundreds of thousands of dollars because their computer is being used by a peer-to-peer service to redistribute music or videos. The bill allows software to be modified or digital locks to be circumvented for purposes of interoperability with other software. It addresses the situation of teachers and libraries, as well as that of security and encryption researchers, which is another area of Canadian strength. Bill C-32 is a complex piece of legislation that we will be studying in depth over the coming weeks. But at this point, the overall picture looks quite positive.

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