Recording industry slams Canada's 'out of date' laws
Recording industry slams Canada's 'out of date' laws
By Vito Pilieci, Ottawa CitizenMarch 18, 2009
OTTAWA — Severely outdated copyright laws have opened the door for frivolous lawsuits in Canada, the Canadian Recording Industry Association says.
The association is responding to a recent petition in the British Columbia Supreme Court, in which a private company asked the court to decide whether search engines should be held accountable for the copy-protected content they find online.
The association, which represents the country's major record labels, was named in the petition, marking the first time a peer-to-peer file-sharing network has hauled a rights-holder into court.
"This is man bites dog," said Richard Pfohl, general counsel for the recording industry association.
"Our laws are so out of date and there is such uncertainty in our laws here in Canada that no one knows what the law is," he said. "Canada is the only jurisdiction in the world where the operator of the file-sharing service has sued the rights-holders."
The petition was filed by isoHunt Web Technologies Inc., a search engine for BitTorrent files, in September. The motion was struck down last Wednesday. The judge hearing the petition said such a ruling can only be made after a formal trial.
The ball is now in isoHunt's court and the company must decide whether to move forward with a full-blown court case against the recording industry association.
Its search engine, ranked among the top five most popular for BitTorrent, digs through more than 44 million music, movie and software files available online to help people find free content.
Last year, the association sent isoHunt legal notices informing the company that some content available through its search engine infringed on various copyrights.
The search engine filed its petition to obtain a legal opinion about whether it was breaking the law.
A lawyer representing isoHunt argued last week that the content available through the search engine can also be found through such other popular search engines as Google. He contended isoHunt is no different than Google and should be free from legal ramifications.
Association president Graham Henderson said the Google defence has been heard and dismissed in jurisdictions around the world. He is sure a court case with isoHunt would end in its favour.
However, Henderson believes if Canada's copyright laws reflected the current state of technology, isoHunt's legal arguments would have fallen on deaf ears.
"If Canada's laws were on par with those of Europe, the U.S., Japan and everywhere else I can think of, then (isoHunt) would have no doubt received advice from their lawyers that they would be insane to bring an action like this," said Henderson. "In the absence, in a vacuum, you have this kind of man-bites-dog story possible and, frankly, it starts to make us look like the laughingstock of the world."
Daniel J. Gervais, university research chairman in intellectual property and professor of law at the University of Ottawa, disagrees. While he believes that Canada needs copyright reform, he said stricter copyright laws would not guarantee fewer lawsuits.
"Canada hasn't done any of these changes to its copyright law and we are stuck with the old laws and the old principles. It doesn't mean it's inadequate, it means they are more vague and therefore it's to be expected that things might end up in court," said Gervais. "Even with more specific legislation you could have questions about what is the specific scope?"
The U.S. and its Digital Millennium Copyright Act is widely regarded as having some of the world's toughest copyright legislation.
The Canadian Copyright Act has not been amended since 1997, two years before Napster changed the way people obtain music and movies online. An attempt to update the act was made in 2005 but was abandoned. Another attempt was made in June last year, but the federal election in October stalled the amendments.
Charlie Angus, MP for the riding of Timmins-James Bay and NDP critic for copyright reform, argues it's not a lack of copyright reform that's making Canada a laughingstock, but rather the way new legislation has been treated as a hot potato by politicians.
"That's what makes this look embarrassing to the world. It looks pretty silly every time we come forward with copyright legislation that government panics and backs off. There needs to be political will to get the job done."
© Copyright (c) Canwest News Service
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