The Government’s Standard Form Response to C-32 Letters
Thank you for your recent correspondence regarding Bill C-32, our government’s proposal to update the Copyright Act.
The Copyright Act has not been amended since 1997 - before the age of iPods, personal video recorders and smart phones. In Canada, the outdated approach of the Copyright Act is stifling creativity and innovation, failing to recognize and support the various ways Canadian consumers use copyrighted materials every day and is not providing the protections that content creators such as songwriters and performers deserve. Internationally, Canada has been placed on piracy watch lists and our intellectual property protections are compared with those of countries like China, Russia and Dubai.
Bill C-32, if approved by Parliament, will bring us in line with international standards such as the World Intellectual Property Organization treaties, standards which all of our major trading partners have adopted and ratified. Canada has announced that we will adopt these standards, but our laws such as the Copyright Act have not been updated to the point where we can implement those standards.
Many Canadians will be surprised to learn that, under current laws, it is illegal to transfer songs from a CD that you purchased to an iPod (a process called format-shifting). Similarly, it is illegal to record a television show for private viewing in your home at a later time (a process called time-shifting, which is a standard feature of all personal video recorders). Bill C-32 acknowledges that these are regular practices for many Canadians and includes broad permissions for such practices. This particular portion of the bill is a strong reflection of how outdated the current legislation has become.
The permissions for time- and format-shifting, like the majority of provisions in Bill C-32, are technology-neutral. This means that they apply to any platform and will not exclude new technologies as they become available (the iPad, for example). This is vitally important to ensure the continued relevance and effectiveness of the laws in a rapidly-evolving technological landscape. Bill C-32 also mandates an automatic Parliamentary review of the Copyright Act every five years in order to address unforeseen consequences and to incorporate ongoing feedback from Canadians.
One provision which is technology-specific regards the treatment of cell phones. Bill C-32 authorizes the circumvention of all security measures (such as digital locks) on cell phones to allow users to unlock their phones if they wish to switch to a different wireless carrier. The only restriction is that all contracts that you have signed with the carrier must be respected (most wireless carriers have contract cancellation fees and other such policies).
Returning to the subject of format-shifting, I would like to specifically address the issue of digital locks, as the public consultations heard many different perspectives on this. In general (for there are many specific exemptions in the education and computer industries, as well as the cell phone example noted above), Bill C-32 does not permit the breaking of digital locks. This means you cannot copy DVDs with copyrighted movies on them even for your own personal use. The music industry has almost completely eliminated the use of digital locks, which means you can make copies for non-commercial uses.
Bill C-32 makes reasonable, common-sense exemptions where digital locks can be broken, including:
· unlocking cell phones;
· personal information protection;
· encryption research;
· reverse engineering for software compatibility;
· security testing of computer systems;
· law enforcement and national security activities;
· temporary recordings made by broadcasters for technical reasons; and
· access for persons with perceptual disabilities.
These exemptions make reasonable accommodations for legitimate uses of copyrighted material which are protected by digital locks. Bill C-32 does not authorize the breaking of digital locks for commercial purposes. This means that it will remain illegal to break a lock so you can make copies of DVDs or video games without compensating the creator or copyright owner of such products.
Bill C-32 also expands the Fair Dealing provisions of the Copyright Act. Fair Dealing permits individuals and businesses to make certain uses of copyrighted material in ways that do not threaten the legitimate interests of copyright owners, but which could have significant economic, societal and cultural benefits. While this list is not exhaustive, some examples of the expanded Fair Dealing provisions include:
· a variety of uses under the category of user-generated content;
· teachers and students will be allowed to use copyrighted materials in lessons conducted over the internet;
· teachers will be allowed to digitally deliver course materials to students;
· teachers and students will be allowed to use materials that they find on the internet as long as it is has been legitimately posted there by copyright owners;
· librarians will be allowed to digitize print materials and then send a copy electronically to a library client;
· all consumers can reproduce copyrighted materials for the purposes of parody or satire (review and criticism are already permitted);
· businesses can reproduce copyrighted materials as part of a technical process (for example, formatting it to appear properly on a cell phone screen); and
· businesses can conduct reverse engineering, security testing and encryption research to develop new products and software solutions.
Another major concern voiced by consumers during our public consultations was the issue of huge punishments for small violators. The enforcement provisions in Bill C-32 are targeted at enablers – peer-to-peer file sharing sites that make large volumes of copyrighted material available illegally and for commercial purposes. Our government considers commercial piracy to be a serious criminal offence; fines for this kind of violations are much higher than for violations by individuals and they carry criminal repercussions.
Several cases in the United States have seen major record labels suing private, small-scale downloaders for millions of dollars. Our government and the majority of Canadians believe this is inappropriate. Under current laws, individual downloaders could face fines of up to $20,000 per infringement. This means someone who downloads four songs illegally could be fined up to $80,000. This is obviously not a suitable balance and it is another reason why the Copyright Act needs to be updated.
An overarching principle of fines and punishments for infringements under Bill C-32 is proportionality - consumers who download material for personal use should not face unreasonable fines. The bill significantly reduces statutory damages for non-commercial violations by individuals, providing the courts with the flexibility to award between $100 and $5,000 in total damages. This $5,000 maximum covers all infringements prior to the lawsuit. Using the same example of four illegally downloaded songs, the individual would only be liable for a penalty of between $100 and $5,000 under the proposed changes.
One very important difference between this proposed legislation and the copyright regime in the United States is our rejection of the notice-and-takedown approach in favour of a notice-and-notice approach. This is uniquely Canadian solution and is already practiced by most Canadian internet service providers (ISPs). Bill C-32 formalizes this practice.
Notice-and-notice means that when an ISP receives notice that one of its customers is committing a copyright infringement on its network, it must notify the infringer that he/she is committing an infringement and must cease. If after repeated violations the infringement continues, the copyright holder can pursue legal action (as noted above, for non-commercial violations the maximum fine is $5,000). For comparison purposes, in the United Sates’ notice-and-takedown model, users are blocked from accessing online content if they are detected committing an infringement (even if they were unaware of it). France, to cite an extreme example, passed a law whereby people who have committed three infringements can have their internet connection permanently disabled (it is referred to as the Three Strikes Law).
As you can see, Bill C-32 is a balanced approach to copyright which protects the rights of creators while maximizing the dissemination and use of information in Canadian society. Having received over 8,000 submissions during our consultations, I do not pretend that it will satisfy every person’s expectations. I do hope, however, that if you have objections or suggestions that you will share them with me, as this legislation has yet to proceed through Parliament and will certainly be subject to revision and amendment based on reviews by our government and the opposition.
Thank you for taking the time to share your views with me. This is a very complex subject and I hope that the information here has addressed your particular concerns. I encourage you to visit www.balancedcopyright.gc.ca to learn more about the bill and its effects. As always, do not hesitate to contact me should you have any further questions, concerns or suggestions.