Copyright reform plan veers away from U.S. approach

The federal government has confirmed plans to table legislation this spring that will prohibit tampering with copyrighted material on the Internet but stopped short of a reform package that many IT industry experts worried would resemble the U.S. Digital Millennium Copyright Act.

A joint statement

from Industry Canada and Canadian Heritage on Thursday spelled out a series of amendments to the Canadian Copyright Act, which are expected to be introduced this spring. The legislation will include an implementation of the 1996 World Intellectual Property Organization (WIPO) Treaties, changes to the way material can be accessed via the Internet for educational purposes and the role Internet service providers would play in enforcing copyright law.

Earlier this month, a dozen firms sent a letter to the Ministries which objected to proposed changes that would make it illegal to circumvent what are called technological protection measures (TPMs) for research purposes. IT security firms said this would severely hamper their R&D activities and create a “liability chill” that would hurt Canadian industry.

Under the proposal outlined on Thursday, however, the Ministries said the provision will be limited to circumvention which takes place specifically to commit copyright infringement, or to conceal copyright infringement. Unlike the U.S. laws, the provision will not be extended to devices that could circumvent copyright protection. 

Security experts sounded cautiously optimistic about the government’s revised plan, though they noted the proposals were sparse on details.

“We’re thinking it’s good news — at least it looks like it,” said Brian O’Higgins, president of Ottawa-based security firm Third Brigade and one of the companies that signed the open letter to the governemtn. “Our perfect world would have been no anti-circumvention, but this isn’t a perfect world. This is the world we live in.”

David Fewer, legal counsel for the Canadian Internet Policy and Public Interest Clinic (CIPPIC) in Ottawa, said the legislation would still mean one more law that IT security firms would have to worry about, though it would leave room for reverse engineering and other common business practices. 

“If no one is really happy, the government has probably done a good job,” he said. “This is a dangerous road we’ve started down, but at least it’s a Canadian road we’re traveling.”

Although ISPs tend to be intermediaries in Internet-related copyright disputes, the legislation will include a “notice and notice” regime whereby ISPs would simply be required to forward a notice from a rights holder to a subscriber that is allegedly hosting or sharing infringing material, and to keep a record of relevant information. They would otherwise be exempt from liability.

“They are pointed in the direction that we hoped they could go,” said Tom Copeland, president of the Canadian Association of Internet Providers. “If it were a notice and take-down regime, we would be doing much more as intermediaries.”

The legislation would further modify an exemption that allows material to be displayed or used on the Internet for educational or research purposes so that students could view a lecture, for example, from a remote location using network technology, and the Act will also include new provisions to facilitate electronic delivery of materials within schools and libraries.

Laura Murray, a professor at Queen’s Uniersity in Kingston, Ont. who runs the Web site, said the problem with exemptions has been that use of material outside of the classroom may be automatically considered an infringement, even though some material is put up on the Web explicitly for educational purposes.

“I think this is okay,” she said.  “A lot of the ordinary use of the Internet doesn’t need an exception – it’s already fair dealing or it’s covered by implied licence.”

Fewer, however, warned that there may still be battles around use of such material, even after the legistlation has passed.

“One of the problems of fair dealing is it’s amorphous — it’s limits are unsure,” he said. “You only know after a lawsuit whether something is legal or not.”

O’Higgins said the group of firms who signed the letter are forming a more established coalition and have already secured a domain name, which he refused to divulge. This group intends to participate in any hearings that are held as the legislation is debated. Fewer said the lobbying will be at least as strong as it was for the last round of copyright reform in the late 1990s, if not more so. 

The government also said the Act will include a full reproduction right for performers and sound recordings and control over the first distribution of their material in tangible form. The Canadian Recording Industry Association immediately released a statement applauding the move.

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