Getting it Right on Copyright?

A look inside Canada's proposed copyright bill reveals the good, the bad, and the 'wait and see.'

On June 2, 2010, the government introduced a new Copyright Modernization Act in the hopes of bringing Canada’s woefully out of date copyright law into the 21st century. Bill C-32, the third attempt at achieving this in the last five years, died on the order paper when Parliament was prorogued this past spring. Now, with a Conservative majority at the helm, the latest incarnation of Canada’s Copyright Modernization Act is speeding through the normal parliamentary process, and is currently in its second reading.

The new Bill C-11 is more or less identical to Bill C-32: It contains all the same features and pitfalls as the previous bill. While Canada is desperately in need of a copyright makeover, a number of interest groups and individuals have questioned whether certain provisions in the bill will serve to benefit Canadians as a whole.

The party line on C-11 (like C-32) is that the new amendments will provide Canada with a “balanced” copyright law that will adequately address the interests of all concerned parties while bringing an important element of Canadian law in line with the times. Below are some of the main talking points of the bill that have stirred up controversy:

New fair dealing

In copyright law, there is a doctrine known as “fair dealing,” which prescribes a list of categories where a person may freely make use of copyrighted content without the permission of the rights holder. In other words, it allows people to carry on activities that, but for the fair-dealing doctrine, would be clear-cut instances of copyright infringement.

In current Canadian copyright law, research/private study, criticism/review, and news reporting are the listed categories in fair dealing. Bill C-11 seeks to add fair dealing for the purpose of education, parody, and satire to that list.

Both supporters and detractors of the expansion of Canadian fair dealing have criticized the government’s approach. Some supporters worry that the term “education” is too vague. Intuitively, one might see this as a positive for supporters of educational fair dealing in that the lack of a strict definition may elicit a wider application. While this may be true, the reality of the situation is that mounting a fair dealing argument in defence of a copyright-infringement lawsuit can prove to be a costly proposition. A more clearly defined statute may deter would-be plaintiffs by lessening their chances of success in court.

Detractors of educational fair dealing, most notably Access Copyright, claim that such a provision will cause irreparable harm to authors whose materials are used in schools.

While provisions for parody and satire are not as hotly debated as educational fair dealing, there is one important question concerning these two new rights: What’s the difference between them? The answer – which has proven to be less than obvious – changes depending on who is being asked. It seems that while parody denotes a more literal comical imitation, satire is often described as more subtle. Satire also often carries a social or political commentary, whereas parody can be more “superficial.” The fact remains that the difference between these two words is unclear, and they will most likely have to be defined by the courts.

Finally, proponents of the expansion of fair dealing argue that the list of categories should be non-exhaustive, allowing new dealings to be considered fair as they arrive. This would mirror the approach in the United States. American “fair use” begins the list of excepted categories with the words “such as,” allowing innovations in the technological and cultural marketplace to exercise a greater control over what is, and is not, “fair.”

New consumer exceptions

Believe it or not, it is currently an infringement of copyright law in Canada to rip a CD to your computer and transfer it onto your iPod. It is also technically an infringement of copyright to use your PVR or TEVO to record shows for later viewing. While these are both common practices in Canada, they have, up until now, been violations of copyright law.

Bill C-11 seeks to remedy that situation by allowing both “format-shifting” and “time-shifting,” with the goal of legalizing these already common behaviours. While it is needless to say that cable and satellite providers such as Rogers and Bell have worked out contractual agreements ensuring that their customers with personal recording devices don’t get sued, it’s nice that the government thought to remove the need for such agreements by simply making these activities an exception to the scope of copyright.