Law Times

LAW TIMES / JUNE 23, 2008 NEWS PAGE 3 Copyright Act amendments could unduly restrict BY ROBERT TODD Law Times ntellectual property lawyers are welcoming the federal govern- ment's efforts to modernize the Copyright Act but say the pro- posed amendments include some possibly unforeseen consequences that unduly restrict consumers. "The amendments, unfortu- I nately, do end up opening the door for copyright holders to sue individuals, and I'm not sure that was what the government intended," says Susan Beaubien, a lawyer with the firm Macera & Jarzyna LLP with nearly 20 years of experience in intellectual property law. The legislation marks the first time in over a decade for a major overhaul of the coun- try's copyright law. Since that time, changes to internet usage and digital technologies have created concerns for copyright holders, and left many consum- ers unsure of how to legally use intellectual property. The government says the pro- posed amendments in bill C-61 adequately balance the interests of those who use digital technol- ogy and those who create it. It includes the following: • new rights and protections to copyright owners that are in line with internet use and in- ternational standards; • some exceptions for educa- tional and research usage for such things as technology- enhanced learning and inter- library loans; and • clarification of internet service providers' liability; cause we're ensuring that Cana- dians can use digital technolo- gies at home with their families, at work, or for educational and research purposes," said Minister of Industry Jim Prentice in a re- lease. "We are also providing new • permission for the specified, private use of some copyright- ed material. "It's a win-win approach be- rights and protections for Cana- dians who create the content and who want to better secure their work online." Beaubien says provisions for statutory damages in the legisla- tion make it "cost-efficient" for copyright holders to sue indi- vidual users. depends, because the people who are going to be sued, if it's just a Joe Blow, are they going to want to spend a lot of money defending an IP case? It's hard to know." Ariel Katz, who holds the in- While in most lawsuits dam- ages must be proven, statutory damages of $500 each — possi- bly per copyright, of which there may be more than one per song, for example — in bill C-61 make it more economical for companies to sue individuals, says Beaubien. "In the case where somebody has downloaded a few songs, well what has been lost in terms of what the record company has lost? They have lost maybe the sale of a CD . . . and it's just not cost-effective," she says. "I think the government in- tended to deal with commercial piracy, or people who are en- gaged in copying and reselling or redistributing things," she says. The proposed amendments also could restrict individuals from making backup or CD cop- ies of music they have purchased online. The bill allows individu- als to make copies of copyrighted material they've purchased, but not if a digital lock must be bro- ken to do so. Beaubien suspects copyright holders will respond to the amendments, if they become law, by placing digital locks on all of their materials. "It's a question of giving with one hand and taking away with the other," she says. Ronald Dimock, an IP and litigation partner at Dimock Stratton LLP, says the record and publishing industries have been awaiting this type of leg- islation to regain some equality in the courts. "The courts have given that balance more, some would say, to the user and to the consumer," he says. "That has been applaud- ed in many areas because of the need for the public to be able to Marketplace COUNSELING Dr. Valentin Shulman - Helping legal professionals to overcome depression and stress since 1989. 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The lawyers also speculate that novation chair in electronic com- munication at the University of Toronto's Faculty of law, says a lack of "underlying principles" within the legislation could cre- ate more work for IP lawyers. "There are a lot of details that will need to be figured out," says Katz. "You might see a lot of liti- gation on, 'What is the precise meaning of this particular term, what does this mean?'" Many other regulatory the new laws could lead to an influx of new work for IP practitioners. "If this tends to spark a round of companies saying, 'OK, it's cost-effective to sue individuals,' you may see a lot more of these lawsuits happen," says Beaubien. "Will that create an upsurge in work for lawyers? I guess it frameworks combine a statute with a regulator that has rule- making powers, says Katz. He says that system offers flexibil- ity for change should regula- tions prove faulty. "But here, you have a piece of primary legislation that cre- ates a very detailed arrange- ment, which then becomes very rigid, because it's not very easy to amend . . . and they are very complex and incomprehensi- ble [regulations], but the users of them are ordinary people," says Katz. "It's not a very clever way to legislate, regardless of the merits of the amendments with Blake Cassels & Graydon LLP in Toronto, says litigators should also take note of the pro- posed regulations, particularly when compiling evidence. "Lawyers who have to try to themselves." Mark Hayes, an IP lawyer get around digital locks or ac- cess controls are obviously go- ing to have to be much more careful than they have been in the past," says Hayes. He also notes that many of the exemptions in the act are for personal use, and wouldn't ap- ply to lawyers accessing material for their practice. While the government's pro- posed amendments to the Copy- right Act have been vigorously criticized in the media, Hayes says the greatest threat to the leg- islation is a pending election. He notes that an election must be called by next spring and could be called as early as this fall. "I don't think there's any re- alistic chance that the legislation is going to get passed before this fall," he says, adding that par- liamentary hearings on the pro- posed amendments would stall the process and make it unlikely for the government to push the legislation for acceptance before an election. LT MUSKOKA FRACTIONAL COTTAGE OWNERSHIPon Lake of Bays ACTUAL FURNISHINGS Ontario's Fastest Selling Fractional Cottages $29,900 - $87,900* PHASE 2 NOW SELLING Exceptional Prices Waterfront Location Authentic Detached Cottages Having looked at other developments we noticed immediately the quality of the model, the existing facilities and the value the price represented. 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