Law Times

PAGE 10 FOCUS September 20, 2010 • Law timeS Third time lucky for copyright reform? BY JUDY VAN RHIJN For Law Times following the rule of three in its approach to new copyright L ike a Hollywood script or a comedian's gag, the Canadian government is legislation. After two attempts for the setup, legislators may fi nally be about to deliver the punchline with the copyright modernization act. But have they got it right this time? In the two previous versions of the copyright reform pack- age, there were loud complaints that it favoured owners over us- ers. Sheldon Burshtein, a part- ner at Blake Cassels & Graydon LLP, says this latest incarnation has come closer to the middle ground. "Th e problem with When it comes to IP in Canada, We're Well Read Ridout & Maybee LLP: Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com copyright is that everyone's a user. Very few people are creators who make a living from their work. Th at's why people say there are no votes in copy- right legislation. If you're going to strengthen copy- right, you're going to upset way more people than you make happy." Mark Davis, a partner at Heenan Blaikie LLP, agrees there has been a shift. "Th ere is more of a recognition that copyright policy requires a bal- ance of interests: the public interest against the interest of owners," he says, noting he has heard criticisms of the bill from both sides. "If nobody's happy, it must be fair or approaching a greater degree of fairness," he says with a laugh. Burshtein says that legislators have tweaked the previous bills to provide a better balance between copyright owners' and users' rights. For users, the legislation will expand the scope of fair deal- ing for educational purposes and for parody and satire. As a result, Burshtein notes educational pub- lishers are up in arms at the ero- sion of their rights. Th e amended bill also allows format shifting by, for example, the transfer of mu- sic from a CD to an MP3 player. Time shifting, which has never fallen under an exemption before, will now be allowed, along with remixing of content. "Users can take something Ridout_LT_Feb9-16_09.indd 1 2/5/09 10:52:55 AM Accurate • Reliable • Up-to-date Your source of essential legal contact information from Canada Law Book's renowned directories group. Find the names and numbers you need in the Atlantic provinces – and in Alberta, Northwest Territories, Yukon and Nunavut. Includes e-mail addresses! from this article and that article or from this song and that song as long as it is non-commercial and has no impact on the original work," Burshtein points out. "In- dustrially, it will allow people to make a copy of a work temporar- ily if it's required for a technologi- cal process for research and devel- opment purposes, such as access to software to design something." For the copyright owners, the legislation will beef up their abil- ity to protect their works in the digital environment. "Th ere's go- ing to be a lot of discussion about the technical protection mea- sures, such as digital locks," Bur- shtein warns. "Th e act talks about certain things users can do, but if there are technical protection measures in place, it doesn't mat- ter what the law says. If the work has a lock, the user may not access it. For example, you may have permission to legally borrow a car but if you don't have the keys, you are restricted by fact." Davis sees the amendments as Connect to Canada's legal network! Get your Atlantic and Alberta Legal Telephone Directories for 2010-2011 Order your copies today at: canadalawbook.ca • For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Division of Thomson Reuters Canada Ltd. MERGING TRADITION WITH TECHNOLOGY www.lawtimesnews.com combo Direct – Lawtimes 1/4.indd 1 9/1/10 11:22:51 AM 'If nobody's happy, it must be fair or approach- ing a greater degree of fairness,' Mark Davis says of the new bill. constituting major concessions for us- ers that are never- theless scaled back by the inclusion of digital-rights management and protection mecha- nisms. "Th ey are giving with one hand and taking with the other," he says. "Th e greatest complaint will be about the elevation of digital-rights protection. Th ey are allowing digital rights to trump what would oth- erwise be non-infringing uses." Davis gives the example of a library running a distance educa- tion program. "It would be per- mitted, under the current regime, to send [to] a person studying at home in a remote location an ar- ticle, such as a journal on Ameri- can history, with an exemption from copyright infringement," he says. "If the book is put on a pho- tocopier, you could still repro- duce it and send it but if you only had the work electronically, the student would get it by e-mail and there will now be restric- tions that prevent that. You can no longer copy it if it involves breaking a lock." Davis sees a looming irony in this arrangement. "Digitization of content has made reproduc- tion so easy that copyright own- ers for years resisted digitizing because they could no longer control its dissemination. Now, with the digital-locks provision, it may be advantageous to copy- right owners to disseminate in digital form. You will be able to place more controls on a digital work than if it is produced in traditional form." It's a transformation Davis believes is consistent with the act's aim of improving Canada's place in the digital world. Nevertheless, Canadians must now wait and see if the bill actually becomes a reality this time. Burshtein thinks there's a good chance the legislation will go through but says "it's by no means a slam dunk." At the same time, he suspects the bill may be more of a response to international pressure than a move aimed at dealing with copy- right owners' demands. "Canada is lumped in with third-world countries when rated for copy- right protection," he says. "We do have good protection, but there is so much political pressure be- cause we are such an important market. Th e government may be trying to appease the U.S. and other foreigners." LT

• Cover
• Colombian Expansion
• Early Campaigning
• Focus On Intellectual Property/Trademark Law