How Balanced is Bill C-32?

The government says that its new copyright legislation is "balanced change," but as it stands, this is more marketing than reality.

This past week, ministers Tony Clement and James Moore appeared at the Electronic Arts video game studio in Montreal to introduce Bill C-32, the government’s latest attempt at copyright reform. They addressed the media behind a large blue sign on which the words “balanced copyright” were written in capital letters.

The last two attempts at reforming Canada’s Copyright Act – Bill C-60, introduced by the Liberal government in 2005, and Bill C-61, introduced by the Conservative government in 2008 – died on the order table. Those bills had been criticized by many for protecting the rights of copyright owners at the expense of the rights and interests of users, consumers, follow-on creators, and other innovators – essentially, for failing to strike the proper balance between copyright owners and all other parties.

In their introduction of Bill C-32, Clement and Moore described it as “balanced,” as “balanced change,” as a “balanced approach,” and as a “balance” between users and copyright owners. The government also created the website www.balancedcopyright.gc.ca where individuals can go for information about the bill. But does Bill C-32 really propose balanced copyright reform, or is this just marketing?

In many ways, Bill C-32 takes steps to respond to the concerns of users. The fair dealing defence has been expanded through the addition of three new categories: parody, satire, and education. The rights to time-shift, format-shift, make backup copies of legally acquired content, and use existing copyright-protected expression in the creation of a new work (provided it is done for non-commercial purposes), subject to certain restrictions, have been added. The often criticized American “notice and takedown” approach was rejected in favour of a more moderate “notice and notice” approach. And statutory damages have been reduced where an infringement is done for non-commercial purposes.

Bill C-32 also takes steps to respond to the concerns of copyright owners. It grants new rights to these owners, including the right to make content available online and a first distribution right for works in the form of a tangible object. It extends moral rights protection to performers’ performances. It gives owners a new tool in their struggle against peer-to-peer file sharing sites by making it an “infringement of copyright for a person to provide, by means of the internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement.” And it provides protection for rights management information and technological protection measures (TPMs).

TPMs, sometimes referred to as “digital locks,” are technological measures that allow copyright owners to restrict access to and/or use of copyright-protected expression. Bill C-32 makes it an offence to circumvent a TPM which controls access to a work, a performer’s performance fixed in a sound recording, or a sound recording. It also makes it an offence to offer or provide services or devices to the public that are “primarily for the purposes of circumventing a technological protection measure” (provided that certain other criteria are satisfied). Certain narrowly-circumscribed limitations to these offences are built into the bill. It is not an offence, for instance, to circumvent a TPM for the purpose of national security. In many instances, however, an individual could commit an offence by circumventing a TPM to do something that the individual has the right to do under the Copyright Act.

This approach to protecting TPMs undermines the balance between copyright owners and other parties that Bill C-32 purports to achieve. If the bill is passed in its current form, users, consumers, follow-on creators, and future innovators can effectively be prevented from exercising their rights – both those that existed before Bill C-32 and those introduced by it – through the application of a digital lock. Criticism, research, education, creativity, and innovation may suffer as a result. Such an amendment risks impoverishing the values underlying the constitutionally protected right to freedom of expression, and may not withstand the scrutiny of the Charter of Rights and Freedoms.

Fortunately, the government’s goal of balanced copyright reform can still be achieved. While Bill C-32 makes it an offence to circumvent a TPM that controls access to a work for any purpose save those expressly exempted, the abandoned Bill C-60 only made it an offence to circumvent a TPM for an infringing purpose. The amendment set out in Bill C-60 is consistent with the two 1996 World Intellectual Property Organization treaties that Canada has signed but not yet ratified. Were it to be incorporated into Bill C-32, the Bill C-60 amendment would provide copyright owners with an additional tool in their fight against copyright infringement while ensuring that all other parties are not prevented from exercising their rights.

In this way, Bill C-32 could move towards providing balanced copyright reform for all Canadians, instead of just using “balanced copyright” as a marketing slogan.