May 14, 2012 brings the latest attempt at copyright reform, Bill C-11 one step closer to fruition.

Bill C-11 began with its Introduction and Initial Reading before the House in September of 2011, and is presently, as of May 14 2012, in its Report Stage. Otherwise known as Canada’s Copyright Modernization Act, Bill C-11 was met by a list of last minute motions (totaling 23) proposed by the Green Party’s Elizabeth May and also by Andre Bellavance from the Bloc Québécois Party. Interestingly, neither the Green nor Bloc Parties had representatives present in the parliamentary committee studying the Bill.

Particular highlights of the 19 motions proposed by Elizabeth May include her request for amendments to be made to Clauses 21, 22, 27, 29 and especially 47 of the Bill which concern fair dealing, non-commercial user generated content, defining the parameters of the term ‘lesson’, research or private study and technological protection measures and rights management information, respectively.

With respect to the ‘fair dealing’ provision, May requested that Clause 21 be amended to include a provision which would allow for the Governor in Council to make regulations defining ‘education’ for the purposes of fair dealing.  In the Debate, May elaborated on this provision:

“However, the government threw in “education, parody or satire”, and the use of the word “education” does create some concern, primarily because “education”, as a term or exception under copyright use under fair dealing, has not been previously defined in the courts. It could lead to significant litigation to expand or narrow the meaning in ways that would be prejudicial to the average person who wants to use the material. Given that those people who might want to change the law in ways that restrict consumer access and normal opportunities to use materials are those with the greatest and the deepest pockets to go to court to prove this, it seems that down the road we might want to improve the way the bill currently reads and to create an opportunity by regulation for the Governor in Council to provide a definition of “education”, which is currently not in the bill, in order to leave that flexibility in place down the road. That is what my Motion No. 3 stands for: that the Governor in Council may make regulations defining “education”.

This specific amendment comes from testimony by Giuseppina D’Agostino, a Professor in intellectual property at Osgoode Hall Law School and Founder and Director of IP Osgoode In December 2010, when the previous iteration of Bill C-11, Bill C-32, was before the Parliamentary Committee, Professor D’Agostino commented on the need for an amendment:

“This would allow for a more evidence-based approach and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and to be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time.”

Motions No. 4 and 5 propose amendments to Clause 22 to remove what will be s. 29.23(1)(b), or the requirement that you cannot circumvent a TPM in order to qualify for the timeshifting exception, and the same for 29.24(1)(c) for the backup copying exception.

Motions No. 6 and 7 propose amendments to Clause 27, allowing students who receive lessons via telecommunication to reproduce the lesson for non-infringing purposes, striking the provision requiring them to delete copies of the lesson 30 days after their exams, and removing the duty from educational institutions to add TPMs to lessons received by students over the internet.

Motion No. 8 amending Clause 29 would remove the condition requiring that libraries, archives or museums providing a digital copy to a person who has requested it from another like institution, take measures to ensure that the person does not use the copy for more than 5 days from which it is first used -essentially removing the 5 day limit from interlibrary digital loans.

Motions No. 9 through to 21 propose changes to the technological protection measures and rights management provisions in Clause 47. Some of the proposed changes include:

• Defining “circumvention” of a TPM as a “measure for the purpose of an act that is an infringement of the copyright in the protected work.” Namely linking circumvention with copyright infringement.
• Deleting the provision which would make the manufacture, import, distribution or offer for sale or rental of circumvention devices illegal.
• Absolving liability for persons who have lawful authority to care for or supervise a minor and who circumvents a technological measure on a legally obtained, non-infringing copy of a work, to protect the minor.

In his blog, Michael Geist, Professor at the University of Ottawa, Faculty of Law notes that it is uncertain as to whether any of the proposed changes will make the cut, as previous recommendations made by other parties had all been rejected.

Elizabeth May was recently quoted on her position concerning copyright reform in an iPolitics report, stating that she believes that the digital locks are “too restrictive” and that addressing these issues before they become law would be in the interest of both Canadians and Parliament. Further, she believes that the American entertainment industry is partially responsible for these changes and feels that “…[w]e could create a fairer balance that’s fairer to Canadian consumers.”

Other proposed changes include Andre Bellavance’s proposal that Clauses 1, 2, 49 and 62 of Bill C-11 be deleted. These propositions include the definition of the term ‘moral rights’ and ‘treaty country’ and the prescription period for civil remedies.

Currently one step closer to fruition, the current Canadian copyright reform bill – Bill C-11 – has come a very long way since its inception as Bill C-32 nearly 2 years ago, in June 2010. For previous IPilogue highlights on Canadian copyright reform efforts, please see here.

In her chapter Copyright: Characteristics of Canadian Reform, Sara Bannerman, Assistant Professor at McMaster University presents an insightful and detailed chronology of previous copyright reforms. She notes that the last two major copyright reforms (coined Phase I and Phase II) occurred in 1985 and 1997 respectively: Phase I included protection for “computer programs, to strengthened moral rights and to institute copyright collectives”, and Phase II amendments included “rights in public performances and broadcasts for performers and producers of sound recordings”.

Based on the political climate surrounding the Bill and the previously rejected proposed amendments, it is highly unlikely that May and Bellavance’s last minute motions will make a dent in its outcome. It remains to be seen what the ultimate result will be.

Courtney Doagoo is a doctoral student at the University of Ottawa, Faculty of Law.

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