New legislation to crack down on digital copyright infringement

 

New legislation to crack down on digital copyright infringement

New legislation to crack down on digital copyright infringement

Sarah Schmidt

Canwest News Service

Sunday, June 08, 2008

OTTAWA - The federal government's new copyright legislation is expected to take a hard line on the use of circumvention devices that could mean consumers are effectively locked out of digital content they have already purchased.

Lobbyists familiar with the bill, expected to be tabled this week, say those who want the prohibition of circumvention devices to get around digital security to be limited to people who crack locks on copyrighted material to make multiple copies and sell them for commercial profit will be disappointed.

And this broad approach could brand as lawbreakers consumers who use circumvention devices to copy legally purchased material, including music and movies, for personal use.

This includes any attempt to transfer music from a copy-protected CD to a computer or music player, crack a region-coded DVD or video game from Europe or Asia to play on their Canadian DVD player or console, or copy portions of electronic books.

While the new bill will likely be updated to make expressly legal the "time shifting" of television programs through widely used Personal Video Recorders, there will be a catch. The bill's anti-circumvention provisions could also mean that if broadcasters block the ability to digitally record certain shows through broadcast flags, consumers would not be able to get around that digital lock legally.

"There are real incentives for broadcasters to do just that," said Michael Geist, a digital copyright expert at the University of Ottawa. He cited a push by content owners to sell or stream their content online.

"It feels as if the Industry minister gives on one hand and takes away with the other, even on the issue of something like time shifting."

Industry Minister Jim Prentice was set to table the legislation last December, but pulled it at the last minute amid concerns the Canadian legislation too closely resembled the U.S. Digital Millennium Copyright Act, recognized as the toughest legislation worldwide. For example, the U.S. law makes all acts of circumvention an infringement unless subject to a specific exception.  

Meanwhile, sources say Internet service providers will get a reprieve in the new legislation, an area where Canada is expected to deviate from provisions under U.S law. The American legislation requires ISPs to block access to allegedly infringing material or remove it from their system when they receive a notification claiming infringement from a copyright holder or their agent.

The Entertainment Software Association of Canada lobbied the government for liability provisions to force ISPs to stop the download of infringing content and block pirated material from moving freely online using peer-to-peer technology.

But observers say absence of a U.S.-style "notice and takedown" system under Canadian copyright law could be meaningless if Canada signs on to the proposed Anti-Counterfeiting Trade Agreement (ACTA), to be tabled next month at the G8 summit in Japan.

Details of the international deal, recently leaked on the Internet, could require ISPs to filter out pirated material, hand over the identities of customers accused of copyright infringement, and restrict the use of online privacy tools.

"ACTA threatens to undermine many of the liability provisions anyway if, internationally, we agree to new surveillance requirements for ISPs," said Geist.

Mark Hayes, a partner in the Intellectual Property Group at the law firm of Blake, Cassels & Graydon, has watched and participated in government consultations on copyright for the past eight years.

Drafting of the new legislation has been complicated by the fact that business groups are divided on the issue. On one side is a recent push by some corporate heavyhitters, under the banner of the Business Coalition for Balanced Copyright, to take a more measured approach to copyright than other business groups demanding tough amendments on behalf of copyright holders.

The coalition brings together the largest cable companies, broadcasters, retailers and Internet companies, including_Rogers Communications, Telus Inc., Google and Yahoo! Canada.

"This is one of the more difficult issues the government has had to deal with. It's not the traditional continuum where the government has the recording industry and motion picture industry on one end and some of the user groups at the other end," said Hayes.

All sides have hired politically connected lobbyists to make their case on Parliament Hill.

Barry Sookman, co-chair of the technology law group at the law firm McCarthy Tetrault and a lobbyist for the recording industry, said the polarized debate gives the mistaken impression that "if one side wins, the other side loses."

Paying artists and rewarding creators "that get something to market is somehow seen as bad for consumers. That's just wrong."

A POLLERA poll of 684 Canadian musicians and songwriters, released Friday, commissioned by Canadian music industry organizations in cooperation with the Ontario Media Development Corp., found 71 per cent of the musicians surveyed view unauthorized file sharing as threat to the music industry; 15 per cent said it was not a threat. The poll is considered accurate within 3.5 percentage points, 19 times out of 20.

© Canwest News Service 2008