Law Times

LAW TIMES / JULY 28/AUGUST 4, 2008 Vigorous debate over anti-circumvention provisions visions in bill C-61, the proposed reforms to Canada's Copyright Act tabled in June, are questions surrounding other provisions in the bill which experts say merit some examination. "There is an awful lot in that bill," says David Fewer, staff counsel for the Canadian Internet Policy and Public Interest Clinic. "There are at least a half a dozen distinct policy initiatives put into that bill. So people who character- ize that bill as being focused on small things, they're being a little bit disingenuous, I think." "I think it's going to take a little bit of time," says John McKeown, of Cassels Brock & Blackwell LLP. "I think the industry and those people who are most impacted by it, they really haven't quite figured out how it's going to impact them. Some of them may be people say- ing they do — but that's a little on the early side yet." "I think some aspects of the bill — it's more that it needs some clarification," says Barry Sookman, with McCarthy Tétrault LLP. "It's a first draft, and there are some technical glitches in some of the provisions. Overall, from a policy perspective, it's got the balance right. But there are some things that normally happen in techni- cal drafting, that technical experts will look at it, and there are areas that will be improved. But overall, I think it's — as a first salvo, it's the right approach." As a first example of a provi- Bill C-61 has at least half a dozen policy initiatives V BY DEREK HILL For Law Times irtually lost in the vig- orous debate over the anti-circumvention pro- sion meriting a second look, Fewer mentions the provisions relating to photography. "There's a little provision in the bill that hasn't received a lot of attention that says that com- missioners of photographs no longer own copyright in those photographs," he says. What that means, he says, is that law with respect to cus- tomers' baby photos, wedding photos, graduation photos, etc. — anything where the reason for the work coming into being originates with the consumer and the photographer is simply being hired to do a job — has changed. Whereas right now the photographer has to bargain for copyright in those items, that commissioning rule is being struck out, so that the photog- rapher would own copyright in those pictures, and the consumer would have to bargain for it if they want to retain control over how those photographs are used. "The photographers are very disingenuously suggesting that there's no privacy issue because they're governed by privacy laws here. But the truth of the mat- ter is there's an artistic excep- tion. Basically the privacy laws have a carve-out around the uses of artistic information, and that would cover the vast majority of commissioned photographs, in my view," says Fewer. "The commissioning rule makes sense in that kind of corporate-commercial context. It does not make sense in the consumer context." Other provisions worth re- examining include those concern- ing distance learning issues, the It's what's inside that counts! Upcoming Focus Highlights "There are many troubling aspects to this proposed legisla- tion," says Ken Roberts, presi- dent of the Canadian Library Association, in a recent press release, "and unless there are many substantial changes, this should not become law." For example, bill C-61 re- quires Canadian libraries to lock up interlibrary loans with digital- rights-management tools, some- thing most libraries presently do not have the resources to accom- plish — meaning it would force many libraries back to delivering interlibrary loan via paper copies. "On loaning of digital con- - tent, C-61 attempts to move Canada back to the 20th cen- tury," says Roberts. "This is clearly not workable." "If we think that it's in the pub- educational use of the internet and digital inter-library loans, where, Fewer says, the heart of the bill is in the right place but the execution is "just laughable." "We've got this distance education bit which actually re- quires teachers to destroy their courses at the end of 30 days after a semester, even if they're teaching the course the next se- mester — it's astonishing. "It repeats kind of a pattern we've seen on our public insti- tution exceptions, where we treat them as criminals on pro- bation, and we forget that these are public institutions, whose public mandate is to serve the public interest, and, you know, who then in many cases is to support literacy, to support the arts culture in Canada." lic interest for them to do some- thing, we have to make it easy for them to do so," agrees Fewer. As a final example of the many provisions analysts claim are worth re-examining, Fewer mentions the raw deal for documentary film- makers caused by the anti-circum- vention measures in bill C-61. "This bill screws documen- tary filmmakers," he says. "Any source that has any kind of en- cryption on it at all, or any kind of protections, which includes all DVDs, basically all commer- cial DVDs are no longer a legal source for documentary film- makers — which is astonishing. Can you imagine that we've done this to documentary films? Can you think of anything more Ca- nadian than documentary films? "It's just another example of how I don't think this govern- ment had a Canadian focus in drafting this legislation, because it would have been nothing to give documentary filmmakers the rights they needed — and nobody would have really op- posed giving documentary film- makers what they needed." In an open letter to the editor of the Toronto Star, Michael Mc- Namara, chairman of the Docu- mentary Organization of Canada, said, "This will essentially bring an end to the concept of 'fair deal- ing' and open public debate in any electronic media. All access to ma- terial for the purposes of critique or discourse would be guarded by the corporations owning the du- plication rights. Think of the fair use of clips in films like Super Size Me, Fahrenheit 9/11 or the Cana- dian doc The Corporation. Access to logos or corporate commercials for the purpose of telling critical, challenging stories would surely be denied." Despite bill C-61's flaws — whether they be perceived as ma- jor or minor — Fewer has hope for the bill, and not just that it will die on the table. He said he's received some positive response to his concerns, not just among the public but even from Con- servative party members. And of course, the bill will likely go to committee after second reading and iron out some wrinkles. Finally, Fewer is hopeful that copyright may actually become an election issue in upcoming byelec- tions, where a few thousand voters with copyright on the brain might swing an important riding. "I think there are going to be some very nervous politicians about copyright — and that's interesting." LT Encyclopedia of Forms, Eleventh Edition PAGE 11 Editor: Louis H. Milrad Informed, Intelligent Content To advertise in an upcoming issue of Law Times, contact our sales team: Karen Lorimer 905-713-4339 klorimer@clbmedia.ca Kimberlee Pascoe 905-713-4342 kpascoe@clbmedia.ca Klorimer@clbmedia.ca Kathy Liotta 905-713-4340 kliotta@clbmedia.ca Rose Noonan 905-726-5444 rnoonan@clbmedia.ca Visit Law Times on the web at: www.lawtimesnews.om www.lawtimesnews.com Order your copy today! www.canadalawbook.ca LT0628 www.divorcemate.com

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