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Law Times • February 8/15, 2010 FOCUS Saga of reforming copyright law continues String of minority governments hampers attempts to pass legislation BY PAUL BRENT For Law Times has been that Canada's last two attempts at copyright reform, bill C-61 and C-60 before it, both died before becoming law as elections ended the parliamen- tary sessions that created them. Th e question for those who O follow copyright law today is whether the will and energy exist to introduce and pass an updated copyright bill before the next election. It's far from certain giv- en the Conservative government's minority status and ongoing ne- gotiations involving copyright and intellectual property law with the European Union, the United States, and other countries. "I'm not sensing any sort of any unusual activity in the bu- reaucracy at this point that would indicate that they are in a big hurry to draft a bill," says Howard Knopf, a lawyer whose work fo- cuses on copyright law at Ottawa fi rm Macera & Jarzyna LLP. "I think they are working on some- thing but, especially with the prorogation, one does not sense a whole lot of urgency." In the meantime, he worries the secret anti-counterfeiting trade agreement and the ongoing negotiations to reach a trade deal with the European Union "could supersede the domestic policy- making agenda which would put an end to Canadian sovereignty to determine our own made-in- Canada copyright policy." Bill C-61, tabled in 2008 by former industry minister Jim Prentice, died on the order paper when the government called an election in the fall of that year. Th e Conservative government then promised to reintroduce a bill containing much of the con- tent of C-61 and, while nothing has appeared as of yet, Ottawa did hold consultations on copy- right this past summer, an eff ort that generated more than 8,000 responses from the public. Few people outside Ottawa mourned the passing of the 2008 bill. Its many critics, in- cluding the opposition parties and consumer groups, said it tilted too far towards the rights of copyright holders over con- sumers. Copyright holders in the entertainment industry were for the most part strongly in support of the bill. University of Ottawa law pro- fessor Michael Geist, whose Fair Copyright for Canada Facebook group drew tens of thousands of supporters, lobbied for changes to C-61 before it died. Today, he doesn't lament its demise. "C-61 was a case of good riddance," he says, adding the massive public response to the recent copyright consultations "has got the gov- ernment's attention." His colleague at the univer- ne consequence of years of relatively short-lived minority governments sity, professor Jeremy de Beer, believes the government is seri- ous about tackling copyright law once more. "I think the next iteration will be more moder- ate than C-61 but go beyond C-60," he says. "Th e one thing that may surprise people [is on Internet service provider] liabil- ity. Th ey got off easy under both for all stakeholders, those sorts of values. I don't think bill C-61 really refl ected that." While he hesitates to describe the demise of the prior two copy- right bills as something of a bless- ing, de Beer says it provides the opportunity to craft better legisla- tion. "Enacting the wrong kinds of reforms will do more harm Digital Copyright Canada, says he wouldn't be surprised to see copyright reform as part of the government's throne speech in March. At the same time, he doesn't see a great deal of diff er- ence in the approach to copy- right between the Conservatives and the Liberals. "Both these parties are similar as far as their When new legislation is fi nally passed, that may be our one and only crack at changes for the foreseeable future, so it is especially important to get it right rather than lock in inappropriate policy. 60 and 61, which runs contrary to trends everywhere else in the world. I won't be surprised to see some more obligations there." Overall, de Beer expects to see a far more nuanced succes- sor. "I don't think C-61 was the right policy way to go. It contradicted some of the key messages that the government emphasized since that time. Th e government talks about forward-looking, technologi- cally neutral, balanced [policy] than good because the process that has unfolded over the last decade in Canadian copyright has demonstrated the diffi culty of changing the law. When new legislation is fi nally passed, that may be our one and only crack at changes for the foreseeable future, so it is especially important to get it right rather than lock in inap- propriate policy." Russell McOrmond, an Ot- tawa-based technology consul- tant who also runs the web site appetite and understanding of the underlying issues," he says. His wish list for reform includes "clarifying and sim- plifying copyright now [on] activities it regulates [that] are no longer only commercial activities" as well as on "non- commercial activities" such as private copying within the home and between devices. Like many others, McOr- mond believes no reform is preferable to bad reform. "As The demise of the two previ- ous bills presents an opportu- nity to craft better legislation, says Jeremy de Beer. much as I believe we need to modernize, already-strong Ca- nadian copyright law is far better than most of the proposals that get attention and are articulated in recent bills and treaties," he says. "My belief in [the notion of] at least do no harm suggests that no changes to copyright are far better than what we've seen in C-60 or C-61." LT PAGE 11 Parallel Importation A controversial subject touching on international trade policy, competition law and intellectual property rights This unique and comprehensive tool for identifying and litigating parallel import cases uses an unbiased, multi-disciplinary approach to exploring the tensions, issues and arguments. Use it to negotiate the boundaries of intellectual property, competition and international trade law. Parallel Importation incorporates both practical and theoretical perspectives. 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