Barry Sookman and Stephen Stohn, National Post August 6, 2009
Earlier this month, the federal government launched a copyright consultation asking Canadians for input on copyright reform. Chief among its questions were what sorts of changes would best foster “innovation and creativity,” “competition and investment” and best “position Canada as a leader in the global, digital economy.”
These questions reveal fundamental insights about the objectives of copyright reform.
Reforming copyright law will stimulate investment in the creation and dissemination of movies, TV programs, books, music and software; help Canada to be a leader in the global digital market for cultural products; and enable Canadian actors, artists, performers, producers and publishers to be paid for their creative efforts and investments.
Canada is viewed as a pirate heaven, both by the pirate sites that have moved to Canada because of lax laws and by Canada’s trading partners, who have singled us out for our weak laws. The massive unauthorized amount unpaid for file-sharing in this country hurts legitimate creators, producers, distributors, publishers, performers, artists and consumers.
When a pirate BitTorrent site makes pirated copies of cultural products available, everyone involved in the creative process is deprived of income for their work. It means fewer jobs, less money to invest in the cultural industries and fewer new works for consumers. Ultimately everyone suffers.
When a person distributes tools that facilitate picking digital locks that prevent unauthorized copying of works, individuals can easily remove the digital locks and distribute unprotected copies around the world. This trafficking in “digital breaking and entering tools” also harms everyone.
For Canada to be a leader in the global digital economy, there must be adequate legal protection for digital content. Reforming the law to achieve this is not just good for business. It is a “win-win” for everyone, including creators and consumers. Despite the rhetoric by opponents of copyright reform, the only real losers in the face of better laws to protect digital content are operators and distributors of pirate sites and services.
So, how do we achieve the government’s goals?
We should ratify the 1996 World Intellectual Property Organization Internet Treaties. These treaties represent the overwhelming international consensus on how to protect copyright on the Internet. Canada is alone among its trading partners in not having implemented these treaties. The laws they mandate — including requiring protection for digital locks — have proved useful internationally in stimulating investment in cultural products. The global experience shows they enable more diversified choice and access to digital products for consumers.
Internet service providers (ISPs) play a crucial role in enabling digital products to be distributed to Canadians. Any new bill should clarify ISPs’ liability when they act as true innocent intermediaries.
The bill should also include a graduated response process to help stem infringements in peer-to-peer (p2p) networks. Studies show that over 70% of users will stop illegal file sharing when they receive a notice from an ISP about it, particularly when they also know that not stopping could have consequences.
Countries such as France, New Zealand, the U. K., South Korea and Taiwan have enacted, or are finalizing, laws for a graduated response process. They have studied it extensively and developed nuanced processes with due-process considerations and alternatives to stopping illegal filesharing other than terminating Internet accounts.
The government should also introduce a “notice and takedown” regime. It is an essential method of removing access to infringing content hosted on sites and exists in comparable legislation around the world.
Canada also needs to clarify its laws related to secondary infringement to ensure that pirate sites are liable for their actions. Operators of such sites claim they are legal in Canada. isoHunt, one of the largest BitTorrent sites, has even sued the recording industry, claiming its site is legal. There should be no doubt that such sites are illegal here as they are in every other country where they have been sued or criminally prosecuted, such as, most recently, Pirate Bay in Sweden.
Any new bill should also clarify that certain acts done for private purposes are not infringing. Bill C-61 had proposed three new exceptions to permit: format shifting of music on to iPods; format shifting of certain works into a digital form; and time shifting for TV programming and simulcasts. These were well thought out and would have brought Canada’s laws into harmony with those in other countries.
The government’s approach in enacting specific exceptions from infringement rather than enacting a general “fair use” exception is the right approach. Most countries have adopted this tailored approach and have rejected a broad concept of “fair use.” For good reason. A study published for the government by a leading Canadian professor recently identified numerous problems with the fair-use model.
-Barry Sookman is a partner and co-chair of the technology law group at McCarthy Tetrault. He is the author of the leading Canadian five-volume book on computer and Internet law and is an adjunct professor of copyright at Osgoode Hall Law School. Stephen Stohn is president of Epitome Pictures Inc., producers of the acclaimed Degrassi: The Next Generation TV series.
To see the article online http://www.nationalpost.com/todays-paper/story.html?id=1863819&p=2
For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.