Copyright changes: how they'll affect users of digital content

Canada has been trying to reform its copyright legislation, which was last updated in 1997, for several years now.

There have been four attempts to date to pass amendments that would bring the Copyright Act in line with the digital age  — one by the Liberals in 2005 and three by the Conservatives, in 2008, 2010 and, now, in 2011.

In this latest attempt, Heritage Minister James Moore said the government "didn't alter a comma" in the original Bill C-32 it had introduced last year and would not be opening up new consultations on the proposed legislation. Instead, it would pick up where hearings left off, with a view to passing the bill by the end of 2011.

Extensive public consultations were held across the country in 2009. The parliamentary committee reviewing the bill heard from groups representing consumers, musicians, authors, educators, performers, the music, movie and other creative industries, librarians, publishers, legal experts, software producers, video game developers and others.

The bill has been closely watched by many interested parties, mainly because of its implications for the production, sale, distribution and consumption of digital content, including music, video, electronic books and software.

Although the bill could still be amended, most expect it will not be substantially altered between now and its passing.

Below are some of the most significant proposed changes to the Copyright Act that will affect users.

If passed in its current form, the Copyright Modernization Act will allow Canadians to:

• Copy content from one device to another, such as from a CD to a computer or an iPod. This provision, however, does not apply to content protected by a digital lock, which is any technological measure, such as encryption or digital signatures, that rights holders use to restrict access to or prevent the copying or playing of CDs, DVDs, e-books, digital files and other material.
• Record television, radio and internet broadcasts and listen to or view them later on whatever device they choose but not for the purposes of building up a library or for commercial use. This provision does not extend to content that is offered "on-demand" (streamed video, for example) or protected by a digital lock.
• Make a backup copy of content to protect against loss or damage — again unless that content is protected by a digital lock or offered as an on-demand service.
• Incorporate legally acquired copyrighted content into their own user-generated work, as long as it's not for commercial gain and does not negatively impact the markets for the original material or the artist's reputation. An example would be the posting of your own mash-up of a Lady Gaga song and, say, a Beyoncé number on YouTube.
• Use copyrighted content for the purposes of education, satire or parody. This expands what is known as the fair dealing provisions of the existing law — which until now covered only research, private study, criticism and news reporting. 
• Copy copyrighted material that is part of an online or distance learning course in order to listen to or view it at a later time. Under this provision, teachers can provide digital copies of copyrighted material to students as part of the course but only if they and the students destroy the course material within 30 days of the end of the course. Teachers are also expected to take reasonable measures to prevent the copying and distribution of the material other than for the purposes of the course. Critics have referred to this part of the Act as the "book burning" provisions.

The new law will also:

• Prohibit the circumventing of digital locks, even for legal purposes — such as the education or satire uses protected by other sections of the Act. This is one of the most controversial parts of the legislation. Many experts have criticized the government for not including an exemption that would allow for the bypassing of digital locks for legitimate purposes, such as the copying of parts of digitally locked textbooks to view on another device or for use in an assignment.
• Prohibit the manufacture, importation and sale of technologies, devices and services designed primarily for the purpose of breaking digital locks. This includes technology designed to allow you to play foreign-bought DVDs on your North American player, for example.
• Require internet service providers to notify their customers that they are violating the copyright law if a copyright holder informs the ISP of possible piracy. The ISP is required to retain "relevant information" about the user such as their identity, and that information could potentially be released to the copyright holder with a court order.
• Exempt ISPs and search engines from liability for the copyright violations of their users if they are acting strictly as intermediaries in the hosting, caching or communication of copyrighted content.

• Prohibit a person to provide a service over the internet or another digital network that the person "knows or should have known is designed primarily to enable acts of copyright infringement." This clause is targeted at websites created for the purpose of distributing copyrighted content, such as the many popular peer-to-peer file-sharing sites used to swap video and audio, and is meant to "make liability for enabling of infringement clear."

• Differentiate between a commercial violation of copyright law and an individual violation. Individuals found violating the law could be liable for penalties between $100 and $5,000, which is below the current $20,000 maximum.

• Allow librarians to digitize print material and send a copy electronically to users, who can view the material on a computer or print one copy.
• Allow disabled consumers to adapt copyrighted material to a format they can more easily use.

Digital locks undermine otherwise balanced bill: critics

The parts of the proposed law that have received the most criticism are the ones concerning digital locks. Many internet, copyright and legal experts say Canada has gone too far in appeasing the corporate interests that use the locks at the expense of consumers, who are entitled to use copyrighted content lawfully but prevented from doing so by the excessively restrictive digital lock amendments. 

"In many ways what we have here is a tale of two bills," says Michael Geist, a University of Ottawa law professor who specializes in internet law and has a strong interest in copyright issues.

"There is a whole series of provisions where there is genuine attempt to strike a balance — on fair dealing, on the liability of internet providers when it comes to infringement on their networks, on damages. The outlier are the digital lock rules, which run counter to what the government consistently has heard from every education group, consumer group and tens of thousands of Canadians."

The solution, Geist says, would be to amend the bill so that the circumvention of a digital lock would be a violation only if it was linked to actual copyright infringement.

"Where you've got someone who circumvents a lock with the intent of burning 1,000 copies and selling them on a street corner, absolutely the law ought to target that," Geist said. "But where we're talking about the consumer who wants to play the DVD they've purchased in Europe or in Asia, or the student who wants to make use of the electronic book on their laptop, or the journalist who wants to use a clip out of a DVD for a news report or the teacher who wants to do a mutlimedia presentation, it seems to me that the law currently says they have those rights, and those shouldn't be lost just because there is a digital lock on the content."

Geist and others say the unnecessarily restrictive digital lock provisions mimic similar ones adopted in the U.S. and were driven by pressure from U.S. authorities, not by Canadian interests. Earlier this month, Geist published an article about internal government documents leaked by WikiLeaks that suggest Canadian officials were eager to tailor the copyright bill to U.S. interests and at one point even offered to show a draft of the bill to U.S. officials before it was tabled in the House of Commons.

The irony, says Geist, is that the U.S has recently introduced changes that make its laws on digital locks less restrictive than Canada's would be.

30-day 'book burning' rule

Another provision that has raised the ire of critics is the one requiring students and educators to destroy online course material that uses copyrighted works within 30 days of the course being over.

"That exemption tries on the one hand to facilitate distance learning and the use of technology, but at the same time, if you rely on that exception, you are then subject to the limitation of destroying the materials," Geist said.

ISPs, peer-to-peer sites

File-sharing sites have been a popular target of copyright advocates, but the proposed law doesn't really alter much on that front. The clause prohibiting services designed to "enable acts of copyright infringement" doesn't go much further than the existing copyright law, says Geist.

It was under the existing law, for example, that the Canadian Recording Industry Association and several major record labels launched a still-ongoing court case against the website isoHunt. The Vancouver-based site acts as a search engine for finding video, audio and other types of files that are shared using the file-sharing protocol known as BitTorrent.

"The reality is we already have the laws to deal with those issues," Geist said.

"What we've seen in many ways is not shortcomings in the law but a lack of willingness among some of those industries to go after some of the sites in Canada where there is a problem."

As for the role of internet service providers in policing copyright infringement, the system of notifying alleged violators that the law entrenches has been praised as an effective way of dissuading copyright violations and already exists at many of the large ISPs.

Rogers Communications, Canada's second-largest ISP, for example, testified before the committee reviewing the copyright bill that very few of its customers who receive notices of potential copyright violations need a second reminder, Geist said.

More on the bill

The government has posted several backgrounders and FAQs about the legislation online.

• Backgrounder on the Copyright Modernization Act
• Q&A about the Act

Geist has posted extensive material on the copyright legislation on his blog, much of it obtained through access to information requests. The material includes the government's clause-by-clause justification of its proposed amendments and the talking points prepared for the heritage and industry ministers in advance of their November 2010 appearance before the committee examining the copyright bill.