Kyle Lavender is a JD candidate at Osgoode Hall Law School.

The House of Commons has resumed hearings on the Copyright Modernization Act (Bill C-32). Amidst claims that the process of amending the Copyright Act has preceded at a “snail-like” pace, it is hopeful that position papers submitted to the House of Commons Legislative Committee on Bill C-32 (the “Committee”) will help flush out some of the issues.

Although Bill C-32 is a step in the right direction, it is riddled with provisions which are highly contested. This is, in part, a result of the natural tension when balancing the interests of users, creators and owners. Some of the most debated topics in these position papers include Bill C-32’s approach to Technological Protection Measures (more commonly known as digital locks), User-Generated Content, and Fair Dealing.

Digital Locks

Digital locks are mechanisms used to protect copyrighted works and are often used by businesses that distribute materials in a digital format (such as copy-controls on CDs, DVDs, or e-books). These mechanisms allow distributors to restrict the use of digital content. Bill C-32prohibits the circumvention of any digital lock, even if the intended use of the copyright-protected material would not amount to copyright infringement. The Bill also includes a ban on the distribution and marketing of any device which could be used to break a digital lock, as well as the provision of services to enable the breaking of digital locks.

In the position paper submitted by the Canadian Federation of Students (CFS) to the Committee, it claimed that the current digital lock provisions unreasonably inhibit users’ rights. As a proposed amendment, the CFS suggested that an act should only be considered “circumvention” if it is for infringing purposes. Therefore, breaking a digital lock will not be prohibited under the Act if the material was used in a lawful manner. Additionally, the CFS opposed the ban on devices which may be used to circumvent digital locks. The CFS pointed out the importance of this provision to students and members of the educational community because of the ever increasing use of electronic course packs, e-books and other electronic material which could contain digital locks.

The Association of Universities and Colleges of Canada (AUCC) agreed to the same proposed amendments to the digital lock provisions in their submissions to the CFS. However, some organizations like the Creators’ Copyright Coalition (CCC) failed to mention the digital lock provisions in their submissions. This is presumably because it agreed with the proposed wording of the Bill.

The Canadian Bar Association (CBA) has recently released its submissions to the Committee on Bill C-32. In it the CBA concluded that “it is important to have technological protection measure provisions in the Copyright Act, in order to ratify WIPO Internet Treaties, but no agreement was reached on the scope of the protection, the inclusion of devices and the scope of exceptions for technological protection measures.” It is interesting to note that the CBA’s position paper, which was prepared by the Copyright Working Group, displayed some of the tensions seen between the groups like the CCC and the CFS. Although some members of the Working Group agreed that there should be a ban on devices used to circumvent digital locks, others did not. Also, some of the members found that there should be exceptions to the anti-circumvention provisions for lawful uses of material, such as those which fall under fair dealing categories and personal use. This demonstrates the need for discussions between groups and a fair compromise which balances the interests of all parties.

User-Generated Content

User-generated content (UGC) refers to online content that is produced by individual users, as opposed to traditional media producers such as production companies. Section 29.21 of Bill C-32, in its current form, introduces an exception which would allow users to use existing copyright-protected works to create new works, which can be distributed through intermediaries.

The CCC strongly opposes the UGC provision and recognizes one of the possible unintended consequences if the exception were to become law. The CCC has stated that this exception will be “at the expense of rights-holders of existing copyright-protected works and largely to the financial benefit of commercial intermediaries such as YouTube.” A solution put forth by the CCC is to either make UGC works subject to a “fairness” criteria and collective licensing or remove the UGC provision all together. The CFS has recommended that section 29.21 be adopted, and if there is concern about the creators’ ability to profit from their works, similarly to the CCC, it suggested there could be a requirement for UGC to pass a fairness test to qualify for the exception.

Although it appears as though the CCC and CFS could reach a compromise by adding in a fairness requirement, other groups may not agree so easily. The Canadian Cultural Industries’ Statement on C-32 opposes section 29.21 due to a lack of adequate safeguards. This would allow websites to distribute material with impunity, all while the UGC can be easily collectively licensed.

The CBA has pointed out that “creators and owners of copyright want to ensure that the UGC exception will not apply to intermediaries that actively reproduce and communicate UGC for commercial purposes,” while users want to ensure that safe harbour protections for “passive” intermediaries (such as ISP’s) are maintained. Although section 29.21 has created some tension between users and rightsholders, it is likely that they will be able to come to an appropriate compromise to ensure users have the freedom to create and distribute UGC while ensuring that compensation is paid to copyright owners and creators.

Fair Dealing: The Introduction of Education

Bill C-32 proposes to amend section 29 of the Copyright Act, the “fair dealing” provision, by including parody, satire and education. From the submissions made to the Committee on Bill C-32 it is clear that the major debate surrounding this change falls on the inclusion of education. This amendment is strongly opposed by rightsholders and creators and supported by education-oriented users.

The CCC views the addition of education under the fair dealing provision as unfairly discriminating against creators, stating that “copyright material should not be free simply because it is used in schools.” However, the CFS strongly agrees with the addition of education in the fair dealing provision, stating that it upholds Canadian values. Not only has the CFS advocated for maintaining the addition of education to section 29, they also advance the position that fair dealing should have a flexible definition and the section should not contain an exhaustive list of categories.

A major issue identified by almost all groups lies in the vagueness of the term “education”, as recognized by the CCC, AUCC and CBA. However, the CFS claims that the provision is not a radical shift, but “merely fill[s] in the gaps between ‘research and private study’”.  It has been argued that the vague definition of “education” in the Copyright Act may lead to excessive litigation. This was echoed by the CBA in its statement to the Committee. The AUCC suggested that the term education should be linked to “educational institution,” which is defined in the Copyright Act. The AUCC also has pointed out, that the proposed changes will not allow educational institutions to copy materials as they please because the six-part test for fairness set out in Law Society of Upper Canada v. CCH Canadian by the Supreme Court of Canada will still apply to all fair dealing categories. The AUCC has called for the Committee to amend the fair dealing exception by codifying these six fairness factors.

Other Debates

Other contentious portions of the Bill indicated in submissions to the Legislative Committee include internet service provider (ISP) liability, statutory damages, and the proposed elimination of collective licensing mechanisms. Please read the submissions made by the CCC, CFS, AUCC, the Canadian Cultural Industries and the CBA and add your comments below.

Posted in Copyright, copyright reform, Digital Locks, Fair Dealing