Copyright bill satisfies recording industry
Posted: Tue Jun 21, 2005 3:36 pm
Copyright bill satisfies recording industry
JACK KAPICA, Globe and Mail Update
Copyright holders and Internet service providers are the direct beneficiaries of the revisions to the Copyright Act in a bill tabled in Parliament this afternoon.
The revisions favour the Canadian recording industry, which demands greater protection against sharing digital music files, and the ISPs, who will be exempt from copyright liability for providing Canadians with access to the Internet.
One major point of the bill is that it says explicitly that the "making available" right, which gives the copyright holder the exclusive right to control who gets the material and how, has been extended to cyberspace. The original Copyright Act was not clear on that issue.
Copyright holders are to get new rights, including the right to technological protection measures, rights-management information, the ability to control the first distribution of material in tangible form, new moral rights for performances, performers would get reproduction rights, and an adjustment in the term of protection for sound recordings.
The bill also includes a "notice and notice" system, by which Internet providers would have to notify subscribers of alleged copyright infringements. ISPs have been voluntarily performing similar systems for several years.
They would also have to keep personal information relevant to the allegation for six months. They will also not be required to disclose a subscriber's identity unless ordered by a court to do so.
"The cable industry is pleased that the Government of Canada recognizes that as intermediaries, ISPs have no control over the copyright material that passes over their networks," Canadian Cable Television Association president Michael Hennessy said in a statement.
The recording industry's initial reaction was very positive.
"We are relieved that Canadian Heritage Minister Liza Frulla and Industry Minister David Emerson kept their commitment to introduce revisions to copyright legislation before Parliament recessed for the summer," CRIA President Graham Henderson said. "In doing so, they have advanced Canada's long-standing commitment to ratify international treaties and bring our law in tune with new digital realities."
"We're extremely delighted the government has taken this step," said Richard Pfohl, legal counsel to the Canadian Recording Industry Association. "It's been a long time coming."
In essence, he said, it's a first step to ratifying the World Intellectual Property Organization treaty that Canada signed but has yet to ratify.
Mr. Pfohl said he'd have to take some time to study the bill to decide whether it ratifies the WIPO treaty, and he'll have to wait further to see how the government intends to act on applying the law.
"My immediate impression is that the recording industry is the big winner with an enormous basket of new rights and individual Canadians are the big losers," said University of Ottawa Internet lawyer Michael Geist.
"There is simply no denying that the lobbying efforts of the copyright owners, particularly the music industry, have paid off as they are the big winners in this bill," he said.
The bill, he added, does little to address individual interests.
He noted that technological protection against copying provisions do not cover devices that can be used to infringe, but to people who circumvent the technology whose purpose is copyright infringement or for making a private copy. The bill also targets people who offer services to circumvent these measures — while the circumvention might be lawful, the subsequent use of the copied work might not.
The Canadian Coalition for Fair Digital Access condemned the bill for not including a provision to eliminate the levy that is currently applied to compact discs.
"Canadians are forced to pay a hidden fee on CDs, mini-discs and other blank recording media," said CCFDA representative Fraser Smith. "This antiquated approach was originally designed to compensate musicians for the duplication of their music onto blank audio tapes. Today, however, Canadians must pay the levy even when they use products like CDs to simply store photos, data and other digital files, rather than copy music. This unfairly penalizes Canadian consumers, small business owners and independent musical artists to the tune of tens of millions of dollars every year. "
Copyright lawyer Lesley Ellen Harris was disappointed about the bill's failure to address the scholarly use of copyright material. "Educational use of Internet material was not addressed in the bill," she said, but noted that "will be part of a new public consultation process."
Mr. Pfohl and Mr. Geist agreed that the private copying regime needs to be clarified further. The bill makes it an infringement to knowingly sell, rent, trade, distribute or communicate copies made for private use, but does not alter the right to make a personal copy, such as a download from the Internet.
Other groups, especially photographers, would benefit from the bill. Photographers are to get removal of provisions focusing on their rights in commissioned photographs.
The requirement that Internet providers to send notice to a subscriber if there is a claim of copyright infringement and to retain "records that will allow the identity of the person to whom the electronic location belongs to be determined," is not clear. The bill says nothing about an individual who is identified by the recording industry as a violator of copyright material (such as music on a peer-to-peer network). It says the copyright holder can issue a notice to the Internet provider, who would then pass it on to the subscriber, but not whether that means the copyright holder has the right to sue right away.
Mr. Geist roundly condemned the bill, saying that although it "could have been worse ... and there are some provisions that permit the use of digital works in an electronic and teaching environment ... that is cold comfort to millions of Canadians who find themselves with a bill that does virtually nothing to address their concerns."
Mr. Geist added that the bill did not say anything about the concept of fair use, which had been recommended by a government study more than 20 years ago.
He added that the bill does nothing to reform statutory damages. Under the current system, an infringer who has made 2,000 songs available on a computer, is liable to damages to the industry amounting to $1-million.
But, he said, one welcome part of the bill is that it focuses on the infringers, and does not target the technology, which is a major problem with the U.S. Digital Millennium Copyright Act.
"Those provisions are good, but not good enough," he said, adding that the bill pays little attention to privacy protection, which "suggests that Canadians who circumvent a technology protection measure to avoid automated collection of their personal information will be committing copyright infringement."
Ottawa copyright lawyer Howard Knopf was quick to condemn the bill.
"It might as well have been called the Canadian Recording Industry of America Act," he said.
He noted that the CRIA has more than it needs after a court spelled out how the industry can act against infringers. The record companies "get paid several times" over for the music they own.
"Also, since the CRIA has achieved what it calls 'complete success' in the court case last month, there is no longer any urgency to the bill. The government should do what it can to counterbalance the provisions."
[url=\"http://ctv.globetechnology.com\"]source[/url]
JACK KAPICA, Globe and Mail Update
Copyright holders and Internet service providers are the direct beneficiaries of the revisions to the Copyright Act in a bill tabled in Parliament this afternoon.
The revisions favour the Canadian recording industry, which demands greater protection against sharing digital music files, and the ISPs, who will be exempt from copyright liability for providing Canadians with access to the Internet.
One major point of the bill is that it says explicitly that the "making available" right, which gives the copyright holder the exclusive right to control who gets the material and how, has been extended to cyberspace. The original Copyright Act was not clear on that issue.
Copyright holders are to get new rights, including the right to technological protection measures, rights-management information, the ability to control the first distribution of material in tangible form, new moral rights for performances, performers would get reproduction rights, and an adjustment in the term of protection for sound recordings.
The bill also includes a "notice and notice" system, by which Internet providers would have to notify subscribers of alleged copyright infringements. ISPs have been voluntarily performing similar systems for several years.
They would also have to keep personal information relevant to the allegation for six months. They will also not be required to disclose a subscriber's identity unless ordered by a court to do so.
"The cable industry is pleased that the Government of Canada recognizes that as intermediaries, ISPs have no control over the copyright material that passes over their networks," Canadian Cable Television Association president Michael Hennessy said in a statement.
The recording industry's initial reaction was very positive.
"We are relieved that Canadian Heritage Minister Liza Frulla and Industry Minister David Emerson kept their commitment to introduce revisions to copyright legislation before Parliament recessed for the summer," CRIA President Graham Henderson said. "In doing so, they have advanced Canada's long-standing commitment to ratify international treaties and bring our law in tune with new digital realities."
"We're extremely delighted the government has taken this step," said Richard Pfohl, legal counsel to the Canadian Recording Industry Association. "It's been a long time coming."
In essence, he said, it's a first step to ratifying the World Intellectual Property Organization treaty that Canada signed but has yet to ratify.
Mr. Pfohl said he'd have to take some time to study the bill to decide whether it ratifies the WIPO treaty, and he'll have to wait further to see how the government intends to act on applying the law.
"My immediate impression is that the recording industry is the big winner with an enormous basket of new rights and individual Canadians are the big losers," said University of Ottawa Internet lawyer Michael Geist.
"There is simply no denying that the lobbying efforts of the copyright owners, particularly the music industry, have paid off as they are the big winners in this bill," he said.
The bill, he added, does little to address individual interests.
He noted that technological protection against copying provisions do not cover devices that can be used to infringe, but to people who circumvent the technology whose purpose is copyright infringement or for making a private copy. The bill also targets people who offer services to circumvent these measures — while the circumvention might be lawful, the subsequent use of the copied work might not.
The Canadian Coalition for Fair Digital Access condemned the bill for not including a provision to eliminate the levy that is currently applied to compact discs.
"Canadians are forced to pay a hidden fee on CDs, mini-discs and other blank recording media," said CCFDA representative Fraser Smith. "This antiquated approach was originally designed to compensate musicians for the duplication of their music onto blank audio tapes. Today, however, Canadians must pay the levy even when they use products like CDs to simply store photos, data and other digital files, rather than copy music. This unfairly penalizes Canadian consumers, small business owners and independent musical artists to the tune of tens of millions of dollars every year. "
Copyright lawyer Lesley Ellen Harris was disappointed about the bill's failure to address the scholarly use of copyright material. "Educational use of Internet material was not addressed in the bill," she said, but noted that "will be part of a new public consultation process."
Mr. Pfohl and Mr. Geist agreed that the private copying regime needs to be clarified further. The bill makes it an infringement to knowingly sell, rent, trade, distribute or communicate copies made for private use, but does not alter the right to make a personal copy, such as a download from the Internet.
Other groups, especially photographers, would benefit from the bill. Photographers are to get removal of provisions focusing on their rights in commissioned photographs.
The requirement that Internet providers to send notice to a subscriber if there is a claim of copyright infringement and to retain "records that will allow the identity of the person to whom the electronic location belongs to be determined," is not clear. The bill says nothing about an individual who is identified by the recording industry as a violator of copyright material (such as music on a peer-to-peer network). It says the copyright holder can issue a notice to the Internet provider, who would then pass it on to the subscriber, but not whether that means the copyright holder has the right to sue right away.
Mr. Geist roundly condemned the bill, saying that although it "could have been worse ... and there are some provisions that permit the use of digital works in an electronic and teaching environment ... that is cold comfort to millions of Canadians who find themselves with a bill that does virtually nothing to address their concerns."
Mr. Geist added that the bill did not say anything about the concept of fair use, which had been recommended by a government study more than 20 years ago.
He added that the bill does nothing to reform statutory damages. Under the current system, an infringer who has made 2,000 songs available on a computer, is liable to damages to the industry amounting to $1-million.
But, he said, one welcome part of the bill is that it focuses on the infringers, and does not target the technology, which is a major problem with the U.S. Digital Millennium Copyright Act.
"Those provisions are good, but not good enough," he said, adding that the bill pays little attention to privacy protection, which "suggests that Canadians who circumvent a technology protection measure to avoid automated collection of their personal information will be committing copyright infringement."
Ottawa copyright lawyer Howard Knopf was quick to condemn the bill.
"It might as well have been called the Canadian Recording Industry of America Act," he said.
He noted that the CRIA has more than it needs after a court spelled out how the industry can act against infringers. The record companies "get paid several times" over for the music they own.
"Also, since the CRIA has achieved what it calls 'complete success' in the court case last month, there is no longer any urgency to the bill. The government should do what it can to counterbalance the provisions."
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