My remarks to the Senate Committee studying Bill C-11

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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7 thoughts on “My remarks to the Senate Committee studying Bill C-11”

  1. Michael Kourlas says:

    Mr. Sookman, I would like to hear your input on the fact that most of the consumer exceptions in bill C-11 are not applicable if the copyrighted work in question is copy protected.

    Are these exceptions in any way significant if they can rarely be applied in practice? Why is circumventing copy protection a crime in the first place, given that there are legitimate reasons for doing so? Shouldn’t the act of copyright infringement be illegal instead? Or, to put it another way, should the act of purchasing a knife be illegal, simply because the latter can sometimes be used as a weapon? Shouldn’t we criminalize murder and assault instead?

  2. Thank you for your comment. Circumventing a TPM will not be a crime. On the rational for protecting TPMs, I suggest you read my blog called An FAQ on TPMs,

  3. Michael Kourlas says:

    Thanks for the link. I think my main concern has to do with the following excerpt from that page:

    “In my view, the conditions against hacking TPMs in the new private copying exceptions are important. TPMs support new business models that would be undermined if people could hack TPMs to make private copies.”

    That’s a fair point. However, these business models have nothing to do with copyright law; they’re contractual arrangements between the consumer and the content producer. The only purpose of copyright law should be to prevent infringement; since the consumer exceptions in Bill C-11 are not inherently copyright infringement, it should not be against copyright law to circumvent TPMs in order to make use these exceptions. However, content producers would be free to include, in the contracts of sale of content, provisions which compel consumers to waive their right to use the consumer exceptions to legally circumvent DRM under copyright law. Software companies have been doing this for years with end-user license agreements.

    The benefit of this system is that it keeps contract and copyright law separate; it allows content producers to sue consumers who circumvent DRM in breach of their contract, while allowing consumers to be protected by contract law when they purchase movies and music, including restrictions on boilerplate contracts, consumer protection laws, etc.

    Wouldn’t this system be better than the one currently implemented in Bill C-11?

  4. Andrei Mincov says:

    The Parliament website presents the upcoming amendments to the Copyright Act in in an absolutely unreadable format. Not only is it impractical to see what and how is being changed, you get lost in the multiplicity of versions.

    Because of this I made the version of Bill C-11 as it received Royal assent with all relevant markup at and also the version of the Copyright Act with all provisions of Bill C-11 incorporated into it at .

    These documents let you see clearly what changes have been made to the Copyright Act.

  5. Rosan Jane Flores says:

    I think that it is also important to consider public interest into the equation. While copyright holders do have some of a right, it is necessary to factor into the needs and wants of the general public as well.

  6. Michael, thanks for the comment. I do not share your perspective on the rational for protecting TPMs. I provided an overview of my views in this blog, An FAQ on TPMs, Copyright and Bill C-11. Hope this helps.

  7. Michael Kourlas says:

    Thanks, but I’ve already read your FAQ. You state that the rationale for disallowing circumvention of TPMs for private copying is that “TPMs support new business models that would be undermined if people could hack TPMs to make private copies.” You give subscription and rental services as examples, stating that the private copying exemption could allow users to keep using the content past the duration of the subscription or rental. Please correct me if I’m wrong.

    I believe your concerns are valid, to some extent. Businesses should be allowed to prevent the creation of private copies as part of a subscription or rental agreement. However, the reality is that even if the private copying exemption allowed the circumvention of TPMs, content producers would still be able to enforce these agreements by including a provision in the subscription or rental agreement which prohibited the circumvention of TPMs; by agreeing to the contract, the consumer would implicitly waive their right to make private copies. This is done all the time with software licensing agreements in the United States, where consumers must often waive their right to reverse engineer the software to which they receive a license, a right which would otherwise be available to them under fair use.

    The difference between a contract-based model and the model created under Bill C-11 is that these prohibitions on circumvention of TPMs would be subject to the same rules as any contract, notably the restrictions on unconscionability and contracts of adhesion. My feeling is that content producers recognize this, and are afraid that some of the restrictions that they impose through contracts would be deemed invalid and unenforceable by the courts through a class-action lawsuit; they’re therefore trying to override these restrictions by implementing contractual provisions in copyright law, side-stepping the existing framework for such agreements.

    Thanks for your time – I really appreciate the opportunity to discuss my thoughts with such a well-known intellectual property lawyer.

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