Focus On - Copyright reforms ongoing but not wholly satisfactory

"Canada has been in the process of reforming its copyright laws for 18 years now, with review and policy study dating further back than that — to around 1980," says Geist.

He notes that the current phase of reforms — of which bill C-60 is a part — reflects objectives identified in a 2002 Industry Canada report on the provisions and operation of the Copyright Act.

"That report," says Geist, "set out short-, medium-, and long-term priorities for future copyright reform. There are those who would characterize [bill C-60] as just the short-term side of it; in fact, the government is planning three separate consultation papers this fall on different issues."

Last summer's Supreme Court of Canada decision in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers resolved many issues surrounding the liability of ISPs.

 "In that case," says Geist, "the court affirmed the role of ISPs as intermediaries."

As long as an ISP acts as a common carrier, it can, in Canada, rely on its intermediary status to avoid liability for copyright infringement.

"This bill provides statutory confirmation of that status."

The bill has introduced a system of "notice and notice," by which a copyright holder can notify an ISP that one of the ISP's subscribers has posted infringing works. This notice triggers a duty on the ISP to give notice to the alleged infringer, and to preserve the impugned information for evidentiary purposes should the copyright holder seek to pursue an action.

Geist describes the notice-and-notice system as "the de facto system that has been in place for some time, and has worked — if you ask some of the ISPs — quite effectively."

This system is different from the notice-and-take-down system in effect in some other countries. Under that system, ISPs are required, upon notice, to remove potentially infringing content upon notice by the copyright holder.

Also covered by the legislation, which has only received first reading, is the issue of rights management information (RMI) tampering. RMI, says Geist, "is essentially what you'd see on an inside book cover, but in electronic form." It's information that ties a particular work to a copyright holder, and the legislation provides sanctions for those who would strip it away in order to facilitate copyright infringement.

"Most of the debate this fall, however, will not be about RMI, but rather about technological measures" says Geist.

Technologies have been developed that can apply what Geist describes as "a digital lock" to works protected by copyright. In the U.S., breaking the digital lock — regardless of the purpose for doing so — is now an offence under copyright law. The current Canadian approach is somewhat different. Here, the mere act of picking the lock is not enough, because in some cases the use that is then made of the accessed material may not actually violate copyright laws. The ultimate state of Canadian law on this point will likely be that picking the digital lock on copyrighted works will be an offence only when it is done "for the purpose" of violating copyright law.

The educational or academic access aspects of the bill receive a less positive review from both Geist and Myra Tawfik, a professor at the University of Windsor's Faculty of Law who is currently working on a book about the history of Canada's copyright law.

Tawfik believes that in the most recent round of parliamentary hearings on the future of copyright reform, none of the user groups, including libraries and educators, made any inroads in shifting the status quo . . . "which is looking at the issues from what is very much a copyright holders' point of view."

Bill C-60's educational and academic provisions "offer less to those communities than the common law does," says Geist.

He cites the Supreme Court's 2004 CCH Canadian Ltd. v. Law Society of Upper Canada decision, noting that it goes further than the bill C-60 provisions do. "For example, the CCH case allowed a librarian at the Great Library to fax a copy of a decision to a single patron, but bill C-60 allows the patron to be sent an electronic file that can only be used for seven days."

Geist characterizes the bill as "embarrassingly poor" on academic use issues.

Tawfik says CCH "signalled how serious copyright issues have become. The court seemed to recognize how well-organized copyright interests are, and that they were, in fact, defining the agenda in a way that may not necessarily be appropriate from a collective Canadian perspective."

The problem with bill C-60, she says, "is that it doesn't really deal with user issues; many of those were really left off the table."

The term "user rights" has evolved because the law, at least in North America, is steeped in the language of rights, she says. However, the concepts of fair dealing and public interest exceptions to copyright protection have international meaning.

The adoption of a user rights concept by the Supreme Court in CCH reflected the view of a group of disparate interests "who believe that copyright policy should be equally about access" as it is about protection, says Tawfik.

Educational and library rights have traditionally been dealt with, in copyright law, via a patchwork of dedicated exceptions.

"For example," she says, "the Copyright Act says that I can reproduce a copyright work on a whiteboard in a classroom . . . but what if I want to use a PowerPoint presentation instead? Am I infringing? The law is silent on that."

More specific, piecemeal amendments are not the answer, according to Tawfik. Parliament seems content, she notes, to look for ways to apply existing exceptions to new contexts — such as the Internet — through legislation like bill C-60, rather than to undertake a more thoroughgoing review of how these interests are best addressed.

"Copyright is very tricky right now, and the issues are much broader than could ever have been foreseen even 15 years ago," she says.

Narrow, exception-based drafting seems inadequate to address the ever-changing technologies in this field.