The Issue
Copyright law is an issue that touches all Canadian consumers. The books, magazines, newspapers and websites we read, the music and radio shows we listen to, and the television shows and movies we watch are all protected by copyright law.
Copyright is designed to balance the interests of creators with the interests of the public and consumers. Copyright is a legal principle which protects intellectual property such as the types already mentioned or any other kind of original creation that is substantive, discrete and fixed in a medium. Copyright provides a means for creative people to earn a living, along with performance and other rights.
Copyright grants creators exclusive rights to make copies of their works as a reward for creativity and also serves as an incentive for the creation of new works. However, copyright is not an absolute right for a creator or rights holder to profit from their work. Copyright does not remove consumers’ rights to make reasonable use of a protected work.
The present balance in copyright law is far from perfect. In fact, many consumer dealings with copyrighted content – ordinary dealings, like copying music onto your iPod or using the digital video recorder that your cable company sold you – technically infringe copyright. In these and many other cases, the law is simply out of step with reality. Simple amendments to the Copyright Act can fix many of these omissions.
Consumers and copyright
Many very common consumers’ practices regarding media are technically illegal. For example, recording a radio or television broadcast for later consumption, or time shifting, is not technically legal. Many consumers would likely be very surprised to learn that they are technically violating copyright law every time they use the PVR their cable company sold to them. Additionally, converting media from one format to be used on a completely different device, or space shifting, is also techni- cally illegal. This means that common practices such as ripping your CD collection to your MP3 player violate copyright. Another common practice is converting one format of media into another, similar format (or space shifting). Consumers who convert their old, commercial VHS tapes into a more usable digital format are technically infringing copyright.
Another surprising fact about Canadian copyright law is that consumers may not legally make a back-up copy of media they legally purchased and own, with the exception of software. Many modern media formats such as CDs and DVDs are fragile and will cease functioning if scratched or otherwise damaged. As a result, many consumers make copies to protect their investment, but likely do not realize they are infringing copyright law when they do so.
An additional copyright concern for Canadian consumers is the issue of circumvention rights. The WIPO Internet treaties require signatories such as Canada to create legal protections for Digital Rights Management (DRM) – kind of like a digital lock. DRM controls the way a consumer makes use of their legally purchased media by limiting what kind of devices it is compatible with, whether it may be copied, how it may be consumed, and other conditions. Some countries, such as the United States, have laws that give legal protection to DRM, criminalizing its circumvention. This has the effect of criminalizing other legal behaviour, since it may be impossible to legally copy or shift certain media if they are protected by DRM. Two recent copyright reform bills, Bill C-60 and Bill C-61, proposed very different approaches to give legal protection to DRM. Bill C-60 allowed circumvention of DRM if the purpose for doing so was to make a copy that was otherwise legal under the Copyright Act (for example, for journalistic purposes). Bill C-61 flatly made circumvention of DRM illegal. Both bills satisfied Canada’s WIPO obligations – but the more recent Bill C-61 penalized Canadians by removing any hope of fair use. If this level of protection were granted, it would be very detrimental to Canadian consumers and would eliminate many of their rights with respect to copyright.
Recommendations
1. Time, space and format shifting are common practices and most consumers would be shocked to learn they were breaking the law while committing them. Copyright law in Canada should be changed to better reflect common consumer practices and expectations.
2. Consumers should enjoy the right to make a back-up copy of their legally purchased media and Canadian copyright law should be changed to respond to this legitimate expectation.
3. Lawmakers should consider the effect any legal protection given to DRM may have on consumers. Any law enacted should not remove rights from consumers to enjoy copyrighted material in fair, common and expected ways.
What About ACTA?
The Anti-Counterfeiting Trade Agreement (ACTA) is an international round of trade negotiations aiming to control counterfeiting of all kinds, including copyright violations. We have three concerns with Canada’s participation in these negotiations: (1) venue, (2) process, and (3) substance.
(1) Venue
We question why copyright matters, which are highly dependent on local culture and legal systems, are being dealt with in a trade agreement. At an international level, copyright discussions have been and should be before the World Intellectual Property Organization (WIPO). WIPO processes acknowledge and take into consideration local cultures, legal systems and diverse input from developing countries and civil society groups. ACTA is closed to these groups and nations, resulting in the creation of civil and criminal standards by a few nations guided only by commercial interests. The venue, in short, appears chosen to avoid balanced consideration of copyright.
(2) Process
We find the lack of transparency surrounding ACTA negotiations appalling for participating democracies such as Canada.
(3) Substance
The ACTA discussions should not be establishing wide public policy in a complex area of copyright that is highly dependent on local culture and legal traditions – yet this is exactly the “norm-setting exercise” that is being carried out under ACTA. We feel that crafting a copyright regime for Canada is a role for domestic legislators. The documents so far leaked from the secret ACTA negotiations suggest that our fear of creating substantive copyright policy in this area is justified. The leaked European Union response to the draft U.S.-written Internet Chapter suggests that ACTA’s content is extreme by Canadian copyright standards. Such substantive policy making makes a mockery of Canada’s domestic copyright consultation process, which was recently carried out with much success by the Canadian government.
Copyright and the Canada-European Union Trade Agreement Negotiations
ACTA is not the only international trade instrument with the potential to affect Canadian copyright law. Negotiations over the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union also threaten to influence the direction of Canadian intellectual property law. As with ACTA, we do not yet have the benefit of a publicly available draft agreement. However, leaks out of the European Union include a paper on its intellectual property bargaining position, and from this it is apparent that the E.U. will be seeking some fundamental changes to the contours of Canadian copyright law. Some of the changes the E.U. may be seeking include copyright term extension, creation of anti-circumvention laws, and the introduction of new border measures and other ambitious remedies. The E.U. apparently prefers that CETA, like ACTA, establish norms of protection for intellectual property that are not currently shared by Canadians and that, in our view, are best left to – or dismissed by – democratic legislative institutions. To date, CETA talks also share ACTA’s disturbing lack of transparency.
Conclusion on ACTA and CETA Negotiations
Canadian lawmakers should be concerned that all of their hard work to reform copyright in Canada through consultation, introduction of legislation, committee work and study may be undone within months if either ACTA or CETA modifies Canada’s copyright regime in a substantive way. We call upon lawmakers to write to the Minister of International Trade to clarify Canada’s intentions regarding copyright reform at the international level.
