POLITICS
09/30/2011 06:17 EDT | Updated 11/30/2011 05:12 EST

Copyright Changes: How They'll Affect Users Of Digital Content

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Canada has been trying to reform its copyright legislation, which was last updated in 1997, for several years now.

There have been four attempts to date to pass amendments that would bring the Copyright Act in line with the digital age — one by the Liberals in 2005 and three by the Conservatives, in 2008, 2010 and, now, in 2011.

In this latest attempt, Heritage Minister James Moore said the government "didn't alter a comma" in the original Bill C-32 it had introduced last year and would not be opening up new consultations on the proposed legislation. Instead, it would pick up where hearings left off, with a view to passing the bill by the end of 2011.

Extensive public consultations were held across the country in 2009. The parliamentary committee reviewing the bill heard from groups representing consumers, musicians, authors, educators, performers, the music, movie and other creative industries, librarians, publishers, legal experts, software producers, video game developers and others.

The bill has been closely watched by many interested parties, mainly because of its implications for the production, sale, distribution and consumption of digital content, including music, video, electronic books and software.

Although the bill could still be amended, most expect it will not be substantially altered between now and its passing.

Below are some of the most significant proposed changes to the Copyright Act that will affect users.

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Digital locks undermine otherwise balanced bill: critics

The parts of the proposed law that have received the most criticism are the ones concerning digital locks. Many internet, copyright and legal experts say Canada has gone too far in appeasing the corporate interests that use the locks at the expense of consumers, who are entitled to use copyrighted content lawfully but prevented from doing so by the excessively restrictive digital lock amendments.

"In many ways what we have here is a tale of two bills," says Michael Geist, a University of Ottawa law professor who specializes in internet law and has a strong interest in copyright issues.

"There is a whole series of provisions where there is genuine attempt to strike a balance — on fair dealing, on the liability of internet providers when it comes to infringement on their networks, on damages. The outlier are the digital lock rules, which run counter to what the government consistently has heard from every education group, consumer group and tens of thousands of Canadians."

The solution, Geist says, would be to amend the bill so that the circumvention of a digital lock would be a violation only if it was linked to actual copyright infringement.

"Where you've got someone who circumvents a lock with the intent of burning 1,000 copies and selling them on a street corner, absolutely the law ought to target that," Geist said. "But where we're talking about the consumer who wants to play the DVD they've purchased in Europe or in Asia, or the student who wants to make use of the electronic book on their laptop, or the journalist who wants to use a clip out of a DVD for a news report or the teacher who wants to do a mutlimedia presentation, it seems to me that the law currently says they have those rights, and those shouldn't be lost just because there is a digital lock on the content."

Geist and others say the unnecessarily restrictive digital lock provisions mimic similar ones adopted in the U.S. and were driven by pressure from U.S. authorities, not by Canadian interests. Earlier this month, Geist published an article about internal government documents leaked by WikiLeaks that suggest Canadian officials were eager to tailor the copyright bill to U.S. interests and at one point even offered to show a draft of the bill to U.S. officials before it was tabled in the House of Commons.

The irony, says Geist, is that the U.S has recently introduced changes that make its laws on digital locks less restrictive than Canada's would be.

30-day 'book burning' rule

Another provision that has raised the ire of critics is the one requiring students and educators to destroy online course material that uses copyrighted works within 30 days of the course being over.

"That exemption tries on the one hand to facilitate distance learning and the use of technology, but at the same time, if you rely on that exception, you are then subject to the limitation of destroying the materials," Geist said.

ISPs, peer-to-peer sites

File-sharing sites have been a popular target of copyright advocates, but the proposed law doesn't really alter much on that front. The clause prohibiting services designed to "enable acts of copyright infringement" doesn't go much further than the existing copyright law, says Geist.

It was under the existing law, for example, that the Canadian Recording Industry Association and several major record labels launched a still-ongoing court case against the website isoHunt. The Vancouver-based site acts as a search engine for finding video, audio and other types of files that are shared using the file-sharing protocol known as BitTorrent.

"The reality is we already have the laws to deal with those issues," Geist said.

"What we've seen in many ways is not shortcomings in the law but a lack of willingness among some of those industries to go after some of the sites in Canada where there is a problem."

As for the role of internet service providers in policing copyright infringement, the system of notifying alleged violators that the law entrenches has been praised as an effective way of dissuading copyright violations and already exists at many of the large ISPs.

Rogers Communications, Canada's second-largest ISP, for example, testified before the committee reviewing the copyright bill that very few of its customers who receive notices of potential copyright violations need a second reminder, Geist said.

More on the bill

The government has posted several backgrounders and FAQs about the legislation online.

- Backgrounder on the Copyright Modernization Act

- Q&A about the Act

Geist has posted extensive material on the copyright legislation on his blog, much of it obtained through access to information requests. The material includes the government's clause-by-clause justification of its proposed amendments and the talking points prepared for the heritage and industry ministers in advance of their November 2010 appearance before the committee examining the copyright bill.