CNA/CCNA Draft Response to Bill C-32 on Copyright Reform


The federal government has finally published its proposals to reform the Copyright Act. This has been a lengthy, inefficient and highly controversial process that arguably began soon after the legislation was last amended in 1997.

At the time it was openly acknowledged by the Heritage and Industry Ministers that work needed to begin immediately on tackling "digital" copyright. Nothing materialized, though, until June 2005 when Bill C-60 was published. It was criticized as barely comprehensible, even by its supporters, and was put out of its misery when the Government lost a no-confidence vote and dissolved Parliament. The next development was the equally ill-fated Bill C-61, published in June 2008. This was perfectly coherent, but it was fiercely attacked by a range of consumer interests and was withdrawn a few weeks later with a promise of full public consultations before any further attempt to move forward with copyright law reform.

The attraction of June for Copyright bills is unclear, but here we go again, with Bill C-32 – the same number, as cynics have noted, as the amending legislation in 1997.  This is a lengthy and complex Bill. For newspapers, these are the key issues:

Fair dealing

There are no structural changes to fair dealing, which is what the Supreme Court called a "user right" to use copyright material in specific situations. Despite calls from consumer groups, educators, and many industry sectors to expand fair dealing beyond research, private study, criticism and review, the Government opted for something closer to status quo. They rejected a concept termed "flexible fair dealing", but did add education as a fair dealing purpose. The implications of this are as yet unclear but could significantly cut into Access Copyright and Copibec educational licensing revenues. Newspapers are beneficiaries of these arrangements, and so it may be necessary to determine if the income involved warrants opposing this proposal.

Also added as fair dealing purposes are parody and satire. These bring Canadian copyright law into closer alignment with the US legislation.

ISP liability

Newspapers have got what they wanted, with a notice-and-notice regime. This is consistent with recent CNA lobbying positions and, while a bit cumbersome, balances freedom of expression with the rights of copyright owners. The Bill avoids the highly controversial "three strikes and you're out" model adopted in several European countries.

Digital locks

This is the piece of the puzzle that has been most debated over the last two years, since the demise of Bill C-61. Technological protection measures are software locks that prevent users of digital media from, basically, doing whatever the locks are designed to prevent. This will typically include copying the content to other formats, or reproducing any or all of it, or changing settings – for instance, so that foreign DVDs can be played outside the country of origin. On the face of it, this seems reasonable, and in most instances it is reasonable, as you get what you're paying for. But critics complain that TPM can be used to deny users their fair dealing rights, and that it should be permissible to circumvent these locks in such cases.  The problem with this is that it begs the question of whether what is intended is in fact a fair dealing with the material. The most recent CNA position on digital locks and circumvention was that, while mindful that the music and film industries might have legitimately different perspectives, newspapers supported the proposition that circumvention should be unlawful only if done for an infringing purpose. That will also address a concern expressed by CNA with Bill C-61, that news reporting must no