Law Times

Law Times / February 11/18, 2008 Page 13 Copyright law update a political minefield I t's surreal: the government proposes to table updates to the Copyright Act and blunders into a political mine- field that threatens its plans to call an election. Who'd have thought copy- right law could so inflame the pas- sions of the public? But the back- lash among the general public, and the call-to-arms that resulted in the Conservative government pulling back from unveiling their plans, was startling. Now, the government must walk a fine line in tabling long- overdue updates to the act which will satisfy the creators and pub- lishers of works, and at the same time avoid introducing mea- sures that will inflame the very electorate the Conservatives are depending on to return them for another term in power. "Consumer limits on usage seems to have it a button, par- ticularly with people online who are tech-savvy and feel they have a right to purchase a digital prod- uct — a CD or DVD — and watch it on different devices," says Phillipa Lawson, director of the Canadian Internet Policy and Public Interest Clinic. "It's going to have to be a real bal- ancing act." At the heart of the issue — which officially no one outside the government has seen — are tough new measures designed to counter illegal downloading and sharing of music and mov- ies — and by extension any copyrighted materials. Canada is under pressure to comply with the World Intellectual Property Office stan- dards and has been struggling for several years to pass updated legislation — legislation that is inadequate, say many critics, to deal with the realities of a digital age. Leading the charge in Canada against some of the provisions, is Michael Geist, the University of Ottawa law professor who has carved out a considerable public profile in the area of online issues and copyright. "It has the potential to have a chilling effect," says Geist, whose Facebook page on the issue has attracted some 40,000 supporters. "And particularly in targeting devices [under the circumventing clauses] it could eviscerate even the fair- dealing exceptions which exist now." He calls it a "lose-lose" proposition, and chief among the concerns of his support- ers are that simple recording of TV shows to watch later, backing up legally purchased CDs under the fair-use provi- sion — as guaranteed by the Copyright Board of Canada's imposition of a levy on all blank CDs and DVDs — will be made illegal, as will the devices that record them. Furthermore, Geist suggests, there are fears the new word- ing will in all likelihood copy the US. Digital Millennium Copyright Act (DCMA) invok- ing stiff criminal sanctions such as jail terms against violators. The U.S. act has led to some high-profile prosecution of indi- viduals for file sharing, some- thing the rights-holders have been unable to do in Canada. In fact many of those oppos- ing the updates are vociferous in their contention that the policy is being set by power- ful U.S. lobbyists representing giants such as Microsoft and the big entertainment studios, who are threatening both jobs and research-and-development proj- ects in Canada unless changes are made to their liking. Conspiracies aside, change is not only inevitable, says Brian Gray of Ogilvy Renault LLP, a member of the joint copyright committee of the Canadian Bar Association, but it's badly need- ed, because the digital revolu- tion that has engulfed Canada in the last decade has exposed the law as written as outdated. "But it has become an abso- lute clash between the rights of consumers to sample things. . . and the rights of the copyright holders," says Gray, stressing there has to be an assumption that protecting copyright is a good thing. How far rights-holders can go — and will be able to go under the new provisions — to protect their rights, however, has also raised red flags in the fed- eral commissioner of privacy's office. Jennifer Stoddard wrote in January to Jim Prentice, minis- ter of industry, and Josée Verner, minister of Canadian heritage, outlining her concerns about the past practice of Digital Rights Management (DRM) software acting as "spyware" that reports if consumers try to copy the CD they were listening to on their computer. Such actions would violate the Personal Information and Protection of Electronic Documents Act (PEPIDA) Furthermore, she warned in the strongly worded letter, she was also concerned about a scheme to allow copyright holders to send written notice to internet service providers on their networks singling out those alleged to be illegally sharing. "Network operators would be required to forward notice to the alleged copyright viola- tor and to retain records on network use for up to a year while investigation of viola- tions or court action took place," she wrote. "Failure to retain these records would have enabled rights-holders to seek damages against the ISP of up to $10,000." Giving credence to those who suggest policy is being shaped by U.S.-based lobby- ists, this is not a novel con- cept. France coincidentally indicated it intends to set a new standard in clamping down on pirated music and movies with a law that would authorize ISPs to inspect the data packets sent by their subscribers who are heavy users of so-called peer-to-peer sharing and determine if they are ille- gal copies of movies or music. Those identified as potentially sharing illegally will be reported to a government agency, which would investigate further and have the power to issue a cease- and-desist under pain of revoca- tion of internet access. Certainly the law as writ- ten would never have predicted P2P sharing or the myriad ways digital media could be copied. Still, while many of the original provisions are still in place since the Copyright Act's inception in 1921, it's useful even in this digital age, says Lise Bertrand at Borden Ladner Gervais LLP. "It's quite technology-neutral and has weathered time well." Some of the provisions expected in the new act, such as making it illegal to manufac- ture devices designed solely to circumvent DRM, are impor- tant changes, she says, especially in targeting those who make and install chips that bypass such controls on platforms like the Sony PlayStation and allow users to play pirated copies of games. One of the reasons the gov- ernment has raised the ire of so many is the perceived lack of public consultation, says Samuel E. Trosow, a University of Western Ontario associate professor of law and media stud- ies, and co-author (with UWO associate professor of English, Laura Murray) of Canadian Copyright: A Citizen's Guide. "There was extensive con- sultation in 2001, so it's getting a little dated," he says, noting there are concerns that the anti- circumvention provisions could be so broad that almost any device — digital camera, CD burner — could be snared, and that scares consumers. "They really have a tight- rope to walk if Parliament wants to enact measures that include device prohibitions," says Trosow. "They are opening a serious can of worms and it's not good policy." "There are already remedies in place and the creative com- munity in Canada is doing well. There are a number of artists loudly saying America doesn't speak for them and they don't want a law which will make it possible to sue their fans, or introduce spyware or circum- vention detection which will get in the way of enjoying media," says Trosow. BY IAN HARVEY Law Times 'It has the potential to have a chill- ing effect,' says Michael Geist of the University of Ottawa. 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Villanueva Natasha Leila Wallace Tanya Lee Weston Mariya Yakusheva Transfer from another Province Theodore Conrad Amory Colombo Julien Kusek Frédéric Jésus Maurice Robert Pagé Law Times congratulates the 70 new members of the Law Society of Upper Canada who were called to the bar at a ceremony held at Osgoode Hall in Convocation Hall on Jan. 23. LT Don't Court Disaster Keep up-to-date on the latest judicial developments by reading Law Times CaseLaw on pages 14-15 www.lawtimesnews.com *Pages 1-16.indd 13 7/18/08 12:45:41 PM

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