My remarks to the Senate Committee studying Bill C-11

June 22nd, 2012 by Barry Sookman Leave a reply »

The following are my opening remarks to the Senate Committee studying Bill C-11 earlier today. The link to the webcast can be found here.

I would like to thank the committee for inviting me to appear today to provide input on Bill C-11.

Before starting my remarks, I would like to give you some background about myself.

  • I am a senior partner with the law firm McCarthy Tétrault.
  • I am an adjunct professor at Osgoode Hall Law School where I teach IP law.
  • I am the author of 5 books including the leading 6 volume treatise on Computer, Internet and E-Commerce Law.
  • I have also been involved in copyright matters for creators, users, and intermediaries spanning decades of practice.

I am telling you this so will understand I don’t approach these issues only from an academic perspective, but also as someone who has insights into how modern copyright laws affect the digital economy.

I am here today in my personal capacity and not representing any clients.

Senators, the Bill does a number of very important things to bring Canada into the 21st century. It contains amendments required by the WIPO Treaties. This will provide Canadian creators standards of copyright protection creative industries receive around the world.

The new enablement section creates a new tool that will give creators a new means of shutting down pirate sites that facilitate massive online content theft. This is a very important framework law which will help Canada be leader in digital economy.

The Bill also protects Internet intermediaries from copyright liability where they might have been technically liable for infringement. It also legalizes certain individuals uses of content such as format and time shifting.

Technical Amendments

When I appeared before the House of Commons Legislative Committee studying this Bill, I drew to the Committee’s attention that the Bill needed some technical amendments to ensure that the objectives of the Government were met. The Legislative Committee made important and needed amendments to clarify the Bill.

These included amendments to clarify that the new enablement section would apply to all sites that primarily enable infringement; to ensure that the pirate services caught  by the enablement provision could not hide behind the new Internet safe harbors in the Bill; and to ensure that those pirate services would be subject to statutory damages necessary to deter commercial-scale infringement.

Technological Protection Measures

Senators, a significant feature of the Bill is the legal protection for TPMs. You often hear them referred to as digital locks to suggest they frustrate consumer uses of content.

Infact, TPMs are enablers of content access that greatly benefit consumers and content owners. Legal protection for TPMs will support current and future innovative product and service offerings that consumers want. These include music streaming subscription services such as Slacker Radio, Spotify, and Sirius, video streaming services like Netflix and YouTube, and distribution of entertainment software and movies.

Legal protection for TPMs has been in place for over a decade in the EU, North America, Asia, and around the world. In fact, 89 countries around the world, including every one of Canada’s leading trading partners, are Contracting Parties to the WIPO Copyright Treaty. Our leading trading partners use legal protections for TPMs to support new innovative digital offerings.

There were submissions made to the Legislative Committee to significantly weaken the legal protections for TPMs including by Michael Geist. His proposals were scrutinized by Dr Ficsor the former Assistant Director General of WIPO. He concluded that his main proposals would be contrary to the requirements of the Treaties. I have given the Clerk a copy of his exhaustive paper which deals with this.

There were also concerns expressed about the need for specific exceptions. The Bill contains express exemptions from the TPM provisions. Furthermore, it provides broad powers to create new exceptions by regulation. Accordingly, there should be no concern about the framework for legal protection for TPMs in the Bill.

Potential Problems

The Bill has a mandatory review process. That is good because technology moves quickly and can raise unanticipated problems. It is also good because there are several potential problems with the Bill which need to be watched closely. I will highlight two of them.

Non-Commercial User-Generated Content Exception

One is the exception for “user generated content”.

The intent is to permit an individual to use content to make a home video or create “mash-ups” of video clips.

As I noted in my remarks to the Legislative Committee, the exception is so widely cast that it would most likely violate Canada’s WTO TRIPS obligations to comply with what is known internationally as the 3 step test.

The Fair Dealing for Education Exception

Another potential problem is the proposal to add education to the current list of fair dealing purposes. The Government background documents say that the permitted uses cannot harm the market for a work.

Yet, there is no assurance this will be the case. This was pointed out at the Legislative Committee including by Profs. D’Agostino and Gendreau, two distinguished copyright law professors.

I would like to thank the committee again for inviting me to appear. I look forward to answering any questions you may have about my remarks or the bill.

* Cor. June 22, 2012

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.


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