Canada in dire need of copyright law reform, says musicians’ group

Canada’s government has opened the door for consultations on copyright reform and reignited the debate on digital locks or digital rights management (DRM) and whether it’s ever okay to tamper with it.

Digital locks can be used to protect content from piracy – ensuring that files aren’t downloaded for free over the Web and the creators left without remuneration.

But those locks can also get in the way of legitimate consumer uses such as ripping a DVD to view it on your iPod, lending out digital materials from a library, or certain research activities.

The federal government opened up a public forum for comments on copyright issues July 20 and is also hosting a series of town halls and round table discussions until Sept. 13. Both Industry Minister Tony Clement and Canadian Heritage Minister James Moore will be meeting with stakeholder groups across the country.

It’s about time something be done to clarify Canada’s copyright law, says Alan Willaert, the supervisor of electronic and intellectual property for the American Federation of Musicians in Canada (AFM Canada).

“We should get a copyright bill passed as quickly as possible and worry about the refinements later,” he says. “This is 12 years after we’ve agreed to the WIPO treaties and we’re still sitting on it here.”

The World Intellectual Property Organization (WIPO) treaties were signed by Canada and many other countries in 1997. This requires Canada to clarify how copyrighted works are to be treated in a new, electronic environment. Two previous government Bills – C60 and C61 – have died as the result of an early election call by a minority government.

The last time Canada held a public consultation on copyright was in 2001 – a time before the iPod, YouTube, Facebook.

It was a completely different world, according to Michael Geist, an Internet law expert at the University of Ottawa. Perhaps that’s why the bills tipped the balance in favour of copyright holders at the expense of consumers.

“I don’t think we need legal protection for DRM, but I do understand there’s a political reality here,” Geist says. “We should use the maximum flexibility found in those international treaties so we don’t tip the copyright balance.”

The WIPO treaty does require Canada to protect the means used by copyright holders to protect their digital materials. But Bill C61 took that too far, Geist says.

“They are saying that basic fair dealing is not a reason to break a digital lock,” he says. There should be a discrimination between someone making a personal backup of a DVD, and someone looking to sell pirated copies on the street corner.

Who and how digital locks are broken and when isn’t a concern for the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), says Brad Keenan, the director of ACTRA’s performer’s rights society. The bottom line concern is that content creators get paid.

“The consumers can’t have their rights swiped away from them,” he says. “We just want the creator to get paid at the end of the day.”

In the U.S., the Digital Millennium Copyright Act makes it illegal to tamper with digital locks. But that’s not the model being sought here by AFM Canada in its consultation meeting in Winnipeg on Aug. 5 and written submission, Willaert says.

“It should be illegal to create the technology to circumvent locks,” he says. “The end user shouldn’t be the one [affected] by a huge fine.”

But to break digital locks, users need the tools. Bill C61 would have made such tools illegal. It prevented anyone from selling or distributing any technology designed to break a digital lock.

That is unnecessary, Geist says.

“Hammers can be used to fix my shed or to try to knock out the lock on someone’s door,” he says. “We don’t ban them because they can be used for legal and illegal purposes.”

Circumvention of digital locks should only be illegal when it is done with the intent of committing copyright infringement, the law expert adds.

The issue comes down to one of common sense for Bernard Courtois, president of the Information Technology Association of Canada (ITAC). The organization that represents many enterprises that make the Internet work in Canada will contribute to the consultation in a Toronto round table discussion on Aug. 27.

Bill C61 “was largely quite good, but required some minor aspects to be changed,” he says. “I viewed the bill as being aimed at people who would make it a business to help people break the law.”

Copyright holder and artist groups will also suggest alternatives to a system that would seek penalties against copyright breakers. Currently, the Canadian Private Copying Collective charges a small levy on the sale of CD-Recordables and MiniDiscs (29 cents) and cassette tapes (24 cents). The money is distributed to copyright holders.

This sort of system could be updated to the modern age by including a levy on the sale of iPods or the monthly fee paid to an Internet Service Provider, Keenan says.

“It should be extended to include the current devices that are used to access the same products,” he says. “We’re just saying out loud, is it a possible model for the future? If not, what’s the other solution?”

ACTRA will also be taking part in the Toronto round table discussion.

AFM Canada also sees a possible solution in what it calls collective or extended licensing. It’s not sure about how to apply that, but doesn’t believe that “fair dealing” exists when it comes to digital music files, Willaert says.

“Evolving technology involves an absolute rejection of authority,” he says. “It’s suddenly become the law of the jungle and everyone believes they have the right to do whatever they want.”

Comments on how to reform Canada’s Copyright Act can be made on the government’s online discussion forum.

Geist has also launched a site, to educate about the issues and encourage participation.

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