Canada's New Copyright Law

Bill C-11, the end result of half a decade of copyright reform talks, was passed in June and is now in effect.

What does this mean for you, as a Canadian and as an artist?

Let's start with the usual disclaimer: I am not a lawyer. This is not legal advice. If you think something you're doing might be on shaky ground, go talk to a real lawyer.

Here's the full text of bill C-11. As with most Canadian government bills, it will make little sense at first unless you also look at the original Act that it amends, in this case the Copyright Act. Current consolidated law (the second link) will eventually be updated to include the new changes.

Here are a few of the important changes, from my perspective as a Canadian photographer and techie.

Photographers' copyright

The notorious Section 13(2)  is repealed. Previously, photographers and portrait artists would automatically lose their copyrights on commissioned works unless their contracts explicitly stated otherwise. Now, copyright stays with the artist by default.

Opinion: Good. This fixes a long-standing flaw that artists have complained about for decades.

Performers' rights

Performing artists' rights (Section 15) are more-or-less harmonized with international treaties. Performers' moral rights (sec. 17) and some details for recording artists (sec. 18-19) have also been refined.

Opinion: I'm not qualified to comment. These are complex changes and I don't have the legal background to fully understand them. If you are affected by any of these sections, read the Act and/or ask your lawyer what it means for you.

Fair dealing exemptions

Research, private study, education, parody and satire are now explicitly labelled as fair dealing and do not infringe copyright (sec. 29).

Opinion: Good. This brings us into line with widely accepted norms for fair use.

Additional exemptions

User-generated content (e.g. web forum posts), reproductions for private purposes, time-shifting (e.g. digital TV recorders) and backup copies now have specific exemptions from copyright infringement.

Opinion: Good. Operators of Web forums have lost an ambiguous, amorphous shadow of potential trouble. Most of the other new exemptions are things that, for many years, everyone thought were already legal and normal; the new law is just codifying accepted standard practice.

Exemptions for schools

Educational institutions are granted a number of exceptions to allow for duplication and format-shifting. Several university libraries have already released copyright guides outlining how these new rules will affect teachers and professors.

Opinion: I'm not qualified. Ask your local librarian for details; these are complicated changes and it may take some time for all the quirks of the new regime to become clear.

Statutory damages cap

The authors of the new act recognized, correctly, that allowing US-style million-dollar copyright lawsuits over downloaded movies would completely wipe out Canadians' faith in copyright law.

Statutory damages for non-commercial infringement are therefore capped at $5000, and for commercial infringement $20,000, for the sum of all works covered by a single proceeding (sec. 38.1). In practice, it looks like it will be very difficult (but probably not impossible) to successfully sue for more than actual damages in non-commercial cases.

Opinion: Close but not quite right. We got a statutory damages cap, which is better than allowing unlimited damages. There is still a possibility of a school, library or individual being sued for non-commerical infringement, though; in such a case, claimed damages should be tied to proven actual damages. There are still plenty of tougher provisions to go after the real profit-destroyers, i.e. fake DVD salesmen and the like.

Notice-and-notice

Proposals to force most of the country's copyright policing burden onto the shoulders of online service providers were mostly shot down. The "notice-and-notice" scheme that will soon be adopted requires service providers to accept and pass on copyright infringement notices relating to their subscribers, but does away with the extrajudicial takedowns and service cutoffs that were part of earlier plans. The service provider is generally shielded from liability for the activities of their users.

Opinion: Makes sense. There's a general sentiment among ground-level techies that ISPs should be "dumb pipes"- that is, they should simply send data wherever they're told to send it, without knowing or caring about the content of that data. Policing copyright law is not their responsibility. Services such as Youtube, on the other hand, should have at least some obligation to respond, fairly, to reports of infringing material on their networks. Notice-and-notice is certainly a more balanced approach than the extrajudical notice-and-takedown scheme of the American DMCA.

Digital (Restrictions/Rights) Management override

The most controversial clause of the new copyright law is section 41 on "technological protection measures". In essence, it says that pretty much all the legally mandated exceptions are meaningless if the media publisher wraps the music, movie or software in some form of digital lock. DRM-breaking, and distributing the tools to do so, are more-or-less prohibited except under specific combinations of conditions.

There is a long, complex list of conditions under which you can break a digital lock. For example, it *appears* that if you hold a valid licence for a piece of software, it's OK to break that software's licence manager in order to obtain the necessary information to get it to work properly with other software, unless you infringe copyright in the process of doing so.

But then we have this gem in sec. 41:

“technological protection measure” means any effective technology, device or component that....

As any Slashdot reader will tell you, there is no such thing as "effective DRM" from a technical standpoint. Any DRM that can effectively control access to the media must, by definition, render the media completely unusable for virtually all legitimate purposes. From a legal standpoint, though, the term seems unclear. Is the DVD Content Scramble System an "effective technology"? It does cipher the video data, but it does so in a way that's trivial to break.

I suspect it will take more than a few court cases before this section is fully clarified- or struck down as being incompatible with the rest of the Act, not to mention technically infeasible.

Opinion: Will quickly become irrelevant. DRM only survives because consumers don't know about it. They just want their music and movies to play on whatever device they happen to have handy. One of three cases could play out:

If DRM is effective enough to do its job, it'll get in the way and people will complain that "Studio XXX's files are crap, they don't play on my gadget-of-the-month". Tech-savvy users will teach non-tech-savvy users how to break the DRM, or just tell them to boycott publishers that use it.

If DRM is weak, users either won't know it's there (and thus not realize that the DRM override applies) or will break it themselves when it gets in the way.

Or, publishers could release their works in standard formats without DRM.

Further Reading

The Copyright Act - Full text from the Department of Justice

Michael Geist - Canada's favourite copyright guru has been reporting on this process for years.

Parliament's legislative summary of C-11

 

Did I get anything wrong, or did you see something else in the bill worth mentioning? If so, please comment....

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