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PAGE 10 FOCUS June 8, 2009 • Law Times OWL search… ® Copyright a hot issue that won't go away BY GLENN KAUTH Law Times the Conference Board of Canada in the embarrassing position of having to retract a controversial report criticizing Canada's C record on protecting intel- Minimize Risk, Maximize Time You represent the vendor in the sale of a business. You represent the lender in a ®) online a full report delivered via email. Details for $49.95.* lectual property rights. In releasing the report, the board fl agged Canada as the "fi le-swapping capital of the world," a claim University of Ottawa Prof. Mi- chael Geist later linked to studies pro- duced elsewhere. But after originally denying it had plagiarized other reports, the board released a statement saying it was retracting its document. "An internal review has determined that these reports did not follow the high quality research standards of Th e Confer- ence Board of Canada," the organization announced on its website on May 28. Th e tussle is one more reminder of the ongoing debate over reforming copyright laws in Canada. It followed a controversy that erupted in April when the Offi ce of the United States Trade Representative placed Canada on its priority watch list of countries with lax rules on copyright in its Special 301 Report. Consumer advo- cates immediately challenged those fi nd- ings as well, arguing that many of them echo the claims of U.S. lobby groups for the entertainment industry. It is true, however, that Canada has struggled with what to do about copy- right in a digital age where fi le-sharing has become common. Bill C-61, the federal government's latest attempt at re- form, died on the order paper when the country found itself in an election last fall. Now, lawyers like John McKeown of Cassels Brock & Blackwell LLP are waiting for yet another law. "Canada has been elevated to the United States Trade Representative's priority watch list," he says. "Th at's got to turn up the heat, I would think. Th at's probably going to prod them to do something." Lawyers in the intellectual property fi eld report are hearing rumours the gov- ernment was going to make moves on the issue this year. But so far, they remain in the dark about what it will do and when it will do it. "Th ere's certainly an expectation that there will be a new bill," says Howard Knopf, counsel with Macera & Jarzyna LLP in Ottawa. He notes that despite re- peated moves to reform the law, the last major revision dates back to 1997. McKeown, a Cassels Brock partner whose work focuses on intellectual prop- erty law, says the debate has taken on an increasingly political tone as people like Geist advocate for users' rights in copy- right. "I think more people acknowledge now that it is a political issue," he says. But in terms of actions he'd like to see, Go to www.bar-ex.com or call 1-877-462-2739. McKeown is most interested in Canada enacting a key international agreement, the World Intellectual Property Organiza- tion Copyright Treaty, that it has already signed onto. Th e treaty requires states to strengthen copyright protections, some- opyright — it's the issue that just doesn't go away. It's so hot it recently landed thing McKeown argues is time for the gov- ernment to do, especially since it was one of the areas the U.S. report criticized Canada for failing to take action. "Canada said long ago that it's going to comply with the WIPO treaties, and they haven't so far." But for Knopf, the failure of Bill C-61 to become law at least temporar- ily killed several controversial provisions he says would have been unfair to users of copyrighted material. It would have enshrined, he notes, protections for so- called digital rights management prac- tices and technical protection measures that stop consumers from transferring materials they already own into other formats. At the same time, he notes that such measures allow content producers or owners to lock up materials through digital means. As a result, someone might not be able to download something from the Internet in the fi rst place even if the copyright on it has expired. "A copyright owner could totally withhold it from the market," says Knopf, arguing such action would make users' rights irrelevant. His preference, then, would be a law that restricts digital rights management practices and techni- cal protection measures that make other- wise legal use of content impossible. Another key issue for Knopf in any new bill relates to the existing statutory minimum damages regime that allows copyright owners to seek a fi ne of $500 against a user per copyright infringe- ment. While not necessarily high, the fi nes can add up to huge amounts in cases where an individual is on the hook for several breaches. Bill C-61 addressed that issue but, Knopf argues, exemptions from skyrocketing fi nes applied in only limited situations. Should, for example, someone have to pay a major penalty for copying a DVD they own onto an IPod? Knopf doesn't think so. "Should somebody lose their home over that? Th e way the law stands right now, that could certainly happen," he says. Adding to the controversies, of course, are copyright spats that keep popping up across the country and around the world. France, for example, plans to signifi cant- ly beef up its intellectual property pro- tections with a new law that would cut off people's Internet access for a year for three copyright violations. In Sweden, meanwhile, the operators of the website www.thepiratebay.org found themselves convicted of criminal charges for their fi le-sharing practices. And in Canada, a Vancouver man is asking the courts to rule that his website www.isohunt. com isn't illegal. It merely links to other fi le-sharing sites, something its operator, Gary Fung, argues is legitimate. In the end, then, the questions and the battles likely will continue even if the government tries to clarify the issues with a new copyright bill. Nevertheless, Knopf hopes Bill C-61's replacement looks very diff erent. "Th e way it was drafted . . . it was seen to be generally very unbalanced, anti-consumer, anti-technology, and problematical," he says. LT Follow Law Times on Teranet_LT_May11/18_09.indd 1 5/6/09 2:44:40 PM www.lawtimesnews.com 3868.BX LawTimes 04/09