Copyright Reform Where are we now and where are we going? The Business of Copyright McGill IPIC Summer Courses in IP Tuesday, August 10, 2010 Gerald (Jay)

Copyright Reform Where are we now and where are we going?

The Business of Copyright McGill IPIC Summer Courses in IP

Tuesday, August 10, 2010Gerald (Jay) L. Kerr-Wilson

Suite 1300, 55 Metcalfe StreetOttawa, Ontario K1P 6L5

Tel: 613-236-3882Fax: 613-230-6423

E-mail: [email protected]

A “Brief” History of Copyright Reform

• Dec. 1996 -- WIPO Internet Treaties (WCT & WPPT) concluded

• Dec. 1997 – Canada signs WIPO treaties• June 22, 2001 – Consultation Paper on Digital Copyright

Issues• Spring 2002 – Public consultation on copyright issues

• Right of Making Available• Legal Protection for TPMs/DRM• Liability of ISPs


• Oct. 3, 2002 – Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act (s. 92)

• Nov. 2002 – House of Commons Standing Committee on Canadian Heritage launches process of public hearings

• Oct. 2003 – Heritage Committee motion recommending draft legislation by Feb. 10, 2004


• Feb. 10, 2004 -- ????• March 2004 – Status Report on Copyright

Reform submitted to Heritage Committee• May 2004 – Committee releases Interim Report

on Copyright Reform


• March 2005 – Government Statement on Proposals for Copyright Reform

• June 20, 2005 – Bill C-60 introduced

• Nov. 28, 2005 – Liberal minority government defeated

• Oct. 2007 – Canada announces participation in Anti-Counterfeiting Trade Agreement (ACTA) negotiations with the United States, European Union, Japan, New Zealand, South Korea, Mexico, Switzerland and other countries.


• Oct. 16, 2007 – Speech from the Throne – “Our Government will improve the protection of cultural and intellectual property rights in Canada including copyright reform.”

• June 12, 2008 – Bill C-61, An Act to amend the Copyright Act, is introduced in Parliament

• Sept. 7, 2008 – Parliament dissolved and general election called. Bill C-61 dies on the Order Paper.


• July 20, 2009 – Industry Minister Tony Clement and Minister of Canadian Heritage James Moore launch a national public consultation on copyright reform to include public meetings, an online forum and written submissions.

• July 20 to Sept. 13, 2009 – Public Consultations on Copyright Reform

• March 3, 2010 – Speech from the Throne – “To encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada's prosperity, our Government will also strengthen laws governing intellectual property and copyright.”


• April 22, 2010 – Draft ACTA negotiating text is released.• June 2, 2010 – Bill C-32, introduced by Minister of

Canadian Heritage, James Moore and Industry Minister Tony Clement.

Anti-Counterfeiting Trade Agreement (ACTA)

• ACTA = a multilateral agreement currently being negotiated to establish international standards on IP rights and enforcement

• Countries involved: Australia, Canada, the EU member states, Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US

• Oct. 23, 2007 – Minister of International Trade announces Canada would participate in preliminary discussions

• June 3 to June 4, 2008 – First round of negotiations in Geneva, Switzerland• Apr. 22, 2010 – Minister of International Trade releases the Draft

Negotiating Text following the 8th round of negotiations in Wellington, New Zealand

• June 28 to July 1, 2010 – 9th round of negotiations in Lucerne, Switzerland – announced next round to take place in the US, with the aim of concluding negotiations as soon as possible in 2010

Copyright Reform Agenda Oct. 2002

Short Term

(1-2 years)

Medium Term

(2-4 years)

Long Term

(4+ years)WCT and WPPT

ISP Liability

Access and Education

Photography

Unpublished Works

New Technology

Audiovisual Works

Crown Copyright

Collective Rights

Term of Protection

Ephemeral Exception

Traditional Knowledge

Databases

Performers’ Rights

Broadcast Rights

Clarification of the Act

Copyright Modernization ActSummer 2009

• Public consultations held in 8 major cities, and online submissions accepted. A year later, Bill C-32 introduced.

• Implement the requirements of the WIPO Internet treaties;

• Modernize the Copyright Act, congruent with technological advances;

• Approach greater technological neutrality to ensure longevity of law’s relevance and protection for users and creators;

• Emphasis on TPMs as method of protecting creators’ rights

• Offers users more robust rights.

Issues

• Protection for Technological Protection Measures (TPMs)

• Making Available Right

• Limitations on ISP Liability

• Limitations and Exceptions for Educational and Personal Uses

Sources

• WIPO Internet Treaties• WIPO Copyright Treaty (WCT)• WIPO Performances and Phonograms Treaty (WPPT)

• Bill C-60 (Liberal legislation)

• Bill C-61 (Conservative legislation)

• Anti-Counterfeiting Trade Agreement (ACTA)

• Bill C-32 (Conservative legislation)

TECHNOLOGICAL

PROTECTION

MEASURES

TPMs

• TPMs = “digital locks” used to protect content• Rights holders consider TPMs as essential to protecting

the legitimate markets for IP• Access-control TPMs restrict access to content (password-

protected services)• Copy-control TPMs restrict the making of reproductions

of protected content• Providing legal protection for TPMs adds an additional

layer of protection to the traditional protection provided by copyright laws

TPMs

• In addition to preventing the infringement of copyright, TPMs can also prevent non-infringing uses (e.g. those uses that are fair dealing)

• Providing protection under copyright law for access-control TPMs might have the effect of creating a de facto “right of access”, which is not a right generally recognized in copyright law

TPMs

WCT Article 11 – Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

TPMs

• What is “adequate” legal protection?

• What are “effective” legal remedies?

• What is an “effective technological measure”?

• Should protection of TPMs be limited to preventing circumvention for infringing purposes?

• Should protection prevent just acts of circumvention or extend to devices that facilitate circumvention as well?

• Protect access-control TPMs, copy-control TPMs, both?

TPMs

Bill C-60:• Prohibits circumvention of TPMs “for the purpose

of an act that is an infringement of copyright”• Prohibits circumvention “services” if there is

knowledge that it will result in infringement• Does not deal with devices• Secondary liability where TPM has been

circumvented.

TPMs

Bill C-61:

• Prohibits all circumvention of TPMs, with specific exceptions (e.g. law enforcement)

• Prohibits circumvention “services” and “devices”

• Prohibition applies even where there is no copyright infringement

• Circumvention invalidates some copyright infringement exceptions (e.g. personal copying; time shifting; educational use of internet materials)

TPMs

Bill C-32• Substantially similar to Bill C-61• Defines both copy-control and access-control

TPMs.• Prohibits circumvention of access-control TPMs,

but not copy-control TPMs.• Circumvention of a TPM would invalidate

personal use exceptions.

TPMs

• ‘Circumvent’: to descramble, decrypt, avoid, bypass, remove, deactivate or impair TPMs, without authority

• ‘TPM’: technology, device or component that controls access to a work or restricts any acts only the author/owner of the work may do.

• Prohibits offering circumvention services to public, manufacturing, importing, selling, renting or providing devices, technologies or components whose primary purpose is circumvention or that are commercially insignificant except to break locks.

TPMs

Bill C-32

• Owners of copyright entitled to all remedies where a TPM has been unlawfully circumvented.

• Exceptions: ex: for software interoperability, national security, investigations pursuant to federal law, conducting encryption research, unlocking wireless devices.

TPMs

• Who should bear the risk?• Overly broad protection serves the interests of

rights holders but risks preventing non-infringing access to, or use of, content

• Overly narrow protection limits the possibility of adverse unintended consequences, but might not provide rights holders the legal tools they need to respond to infringement.

TPMs

• It might be difficult, in the abstract, to determine if a proposed legislative scheme will provide “adequate legal protection” and “effective legal remedies”, without prohibiting non-infringing access and uses

• Really requires the provisions to be enacted and “road tested” to conclude that they are too narrow or too broad.

TPMs and ACTA

Article 2.18 – Enforcement Procedures in the Digital Environment• Narrows Canada’s flexibility to implement legislation on TPMs:

• Section 4 under Article 2.18 would require parties to provide legal remedies for:

• The unauthorized circumvention of TPMs

• The manufacture, importation, or circulation of a device that has a predominant function of circumventing a TPM

• The legal remedies may consist of civil remedies and/or criminal penalties in cases of wilful conduct

MAKING

AVAILABLE

RIGHT

Making Available Right

• Copyright has traditionally recognized two distinct rights – reproduction rights and performing rights.

• The internet blurs the distinction between these rights. It can be used as both a broadcast medium and a channel for distributing copies of works.

• The challenge is to provide rights holders with exclusive rights without creating unnecessary duplication.


• “Making available” is the phrase used to describe the use of content on the internet in neutral terms without reference to an explicit underlying right.

• Copyright should support the economic exploitation of rights in a legitimate market, and also provide rights owners with the means to address infringing uses.


• WCT Article 8 – … authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.


• WPPT Article 14 – Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.


The “Umbrella Solution” -- Ficsor“The idea was to leave it to Contracting Parties to decide through the recognition of which existing or newly established right they would implement the exclusive right to be granted in respect of such acts (such as the right of distribution, the right of communication to the public, a combination thereof, or a new interactive ‘making available’ right).”


Bill C-60:• Follows the structure of the Treaties.• Right for authors explicitly included in the right

to communicate to the public by telecommunication

• New right for performers and sound recording makers which is distinct from the right to remuneration for communication to the public


Bill C-61:

• No explicit right for authors – considered covered by existing right of communication to the public by telecommunication

• New exclusive right for performers and sound recording makers to communicate to the public by telecommunication “in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public”


Bill C-61:• New rights for performers and sound recording

makers are distinct from existing right to equitable remuneration that applies to radio broadcasts.

• In order to enforce new rights, a collective would have to file a tariff with the Copyright Board.


Bill C-32

• Making available explicitly included in scope of communication to the public by telecommunication.

• New rights for performers to fix sound recordings and for sound recording makers to make works available to public in manner that allows public to access the work later.

• Right right for performers and sound recording makers distinct from existing communication right to remuneration.

• Subject to certification of tariff by Copyright Board.

LIMITED

LIABILITY

OF ISPs

Limited Liability of ISPs

• Not a requirement of the WIPO Treaties• Inextricably linked to copyright reform • Need to clarify the limits on liability for ISPs acting

as intermediaries• Need to establish an appropriate role for ISPs in

responding to complaints of allegedly infringing activity


Bill C-60• Exemption from copyright liability with respect to

intermediary functions• Notice & Notice system to make customer aware

of infringement allegations• Customer information only provided pursuant to a

court order


Bill C-61• Exemption from copyright liability with respect to

intermediary functions• Notice & Notice system• ISP required to retain customer information for at

least 6 months after notice is received


Bill C-32• ISPs and search engines are neutral intermediaries

and thus not liable for subscribers’ copyright infringing uses

• Clarifies that caching and hosting by digital memory (cloud computing) is not infringing

• Notice and notice

Limited Liability of ISPs and ACTA

Article 2.18 – Enforcement Procedures in the Digital Environment• Requires parties to ensure enforcement procedures and “expeditious”

remedies are available to prevent and deter infringement• Draft Negotiating Text currently contains two options within Article

2.18 that include various conditions ISPs would have to meet in order to limit their liability:

• I.e., requiring ISPs to remove or disable access to infringing activity• I.e., “adopting and reasonably implementing a policy to address the

unauthorized storage or transmission of materials by copyright or related rights”

LIMITATIONS AND EXCEPTIONS

EDUCATIONAL AND PERSONAL USES

Limitations and Exceptions to CopyrightEducational Uses

Bill C-60• Works covered by collective reprographic licence

may be digitally reproduced and communicated; same royalties payable unless an electronic use licence is available

• Museums and libraries may provide digital copies to other locations, but only if measures taken to prevent reproduction or use for more than 7 days


Bill C-61

• Educational institutions exempt from criminal charges for circumventing TPMs

• Works available on the Internet may be reproduced, communicated, performed if source is identified (unless TPM, notice prohibits)

• Works covered by reprographic licence may be digitally reproduced and communicated; same royalties payable


Bill C-32

• Adds ‘education’ to fair dealing and expands permissible uses of copyright works in educational setting

• Works available online, and sound recordings and film may be copied, communicated, performed if source is identified.

• Greater flexibility for distance/online learning by permitting digital copying and telecommunication to public (students) of copies


• Educational institutions may not circumvent TPMs

• Works covered by reprographic licence may be copied and communicated; same royalties payable. Must take measures to prevent users from making further copies or communicating works.

• Digital reproduction according to licence.

Limitations and Exceptions to CopyrightPersonal Uses

Bill C-60• Personal use of commissioned photographs or

portraits is exempt• Private copying of music allowed, but introduces

secondary liability for the sale, distribution, communication and performance of such copies


Bill C-61• Time- and format-shifting of works in certain

formats allowed, subject to several restrictions• $500 limit on statutory damages for all violations

committed for private purposes (does not apply to TPM circumvention)


Bill C-32• Protection for non-commercial private copying and

making back-up copies

• Use of legally obtained works in user-generated content that doesn’t affect market for original works

• Added categories of parody, satire and education to fair dealing

Conclusion

• The issues confronting policy makers are complex and require making a number of fundamental decisions about the scope of protection.

• Providing too much, or too little, copyright protection can have serious consequences for stakeholders, including consumers.

Conclusions

• The pace of copyright reform means that stakeholders are unwilling to have their issues dealt with during the “next round” of reform.

• No copyright reform package can possibly please everyone. The best outcome is that everyone is a little bit annoyed, but no one is really outraged.

• “Ordinary Canadians” have to be part of the process for copyright reform to be legitimate.

Documents

Copyright Reform Where are we now and where are we going? The Business of Copyright McGill IPIC Summer Courses in IP Tuesday, August 10, 2010 Gerald (Jay)