Copyright experts predict confusion if act is changed

Proposed amendments to the federal Copyright Act could become law as early as Wednesday, but how those will affect the Canadian security industry is a matter of some debate.

One change that is expected to take effect is around the technological prevention measures (TPMs) that protect media

and prevent it from being copied. Industry Canada said in March that any attempt to circumvent TPMs for the purpose of copyright infringement would be illegal under the updated act.

Changes to the act are designed to clarify the role of technology in copyright protection, but could end up muddying the waters, according to David Fewer, legal counsel for the Canadian Internet Policy and Public Interest Clinic in Ottawa.

The problem, said Fewer, is that security consultants attempt to circumvent or “crack” copyright protection measures as a routine part of their job. There is a “fair dealing” exemption in the act which loosens some of the restrictions for research or educational purposes, but this may not be sufficient, he said.

“We’re going to have to keep a close eye on that. We think this is a bad move, which introduces all sorts of nasty liability potential for people who do create tools (to crack media). These kind of shady, grey or uncertain areas introduce risk into the activities of security firms,” he said.

“I think the way (security firms) do business will certainly come under closer scrutiny.”

Early this year, a dozen security companies sent a letter in anticipation of the proposed changes to the Copyright Act. “Legal protection for TPMs,” the letter says, “is the equivalent of making screw-drivers illegal because they can be used to break and enter.”

But an amended Copyright Act isn’t necessarily going to hamper the business practices of Canadian security companies, argued Lise Bertrand, a partner at law firm Borden Ladner Gervais in Montreal.

“It all depends on the way you look at it,” she said. “When you look at equipment that does not have any other purpose than to circumvent legal protection, then you might ask yourself, who would use that?”

Compared to U.S. copyright law, Canadians are getting off light, she added. The Copyright Act stops short of the American Digital Millennium Copyright Act, which does not make the distinction between technology that could be used to circumvent copyright and that which actually does. In the U.S., the issue is not one of intent.

But in order for security companies in this country to feel confident that they can go about their business safely, the “fair dealing” exception should be made more explicit, said Fewer. “Every security firm in this country would say that fair dealing doesn’t give them as much security as they would like.”

Other changes expected for the Copyright Act include: the right for authors to control the dissemination of their material on the Internet (currently those rights are subject to interpretation) and the exemption of Internet service providers from copyright liability.

Under the proposed amendment, ISPs will not be held liable if customers use their service to exchange or proliferate copyrighted material. However, if they are alerted by the rights holder, ISPs would be required to notify a subscriber that they may be in violation of copyright and keep a record of that notifictation.

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