CANADIAN COPYRIGHT LAW: A Consumer White Paper
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CANADIAN COPYRIGHT LAW: A Consumer White Paper
We are a coalition of consumer advocates. We have come together to advocate for copyright
laws that serve the interests of Canada and of Canadians.
Copyright law is designed to balance the interests of creators with the interests of the public.
Copyright grants creators exclusive rights in their works as a reward for creativity that also
serves as an incentive for the creation of new works. These rights are not absolute, but limited in
nature, scope and time. These limits are essential to copyright’s greater design, for it is at the
limits of copyright owners’ rights that important consumer interests come into play.
From a consumer’s perspective, copyright’s current balance is far from perfect. In fact, many
consumer dealings with copyrighted content – ordinary dealings, like copying digital music onto
a portable device, or using the digital video recorders sold by cable companies – technically
infringe copyright. In these and many other cases, the law is simply out of step with reality.
Simple, uncontroversial amendments to the Copyright Act can fix many of these failings.
Unfortunately, copyright policy makers are not focusing on consumer interests. Instead, recent
proposals to amend the Copyright Act focus on expanding rights holder’s interests at Canadian
consumer’s expense. We call on Canada’s law-makers to accommodate consumer interests in
any revision to the Copyright Act currently under consideration. Additionally, we call on lawmakers
to revise the Copyright Act to address important consumer concerns that are not yet
under consideration at all.
Canadian lawmaker’s push to bring Canada into line with the WIPO Internet Treaties could have
very serious consequences for Canadian consumers. We believe that there is no reason to add
anti-circumvention protection to Canadian copyright law. We believe this for several reasons:
1. No justification. The case had not been made that Canada needs anti-circumvention
legislation. In fact, Canadian cultural industries are flourishing in the absence of anticircumvention
legislation.
2. Redundant. Anti-circumvention legislation is redundant: copyright law already provides
penalties for copyright infringement and there is no need for a second layer of protection
that penalizes substantially the same behaviour as copyright;
3. DRM does not work. Technological tools like DRM do not work. Corporations invest
millions of dollars into developing DRM systems that are broken within hours or days of
being released.
4. Technological threats. Anti-circumvention laws do not improve on copyright law’s
existing disincentives to infringe copyright. Anti-circumvention laws do, however,
threaten other values that are important to consumers, such as competitive markets,
privacy, and security. The U.S. anti-circumvention law (known as the DMCA) serves as a
stark example of this and is a failure.
5. Anti-circumvention laws are government intervention. Our markets don’t need
government intervention. Government should instead take a neutral stance, working to
ensure a level competitive playing field that benefits consumers rather than privileging
particular business models.
If Canadian lawmakers choose to legislate anti-circumvention laws, they must take great care to
minimize the negative impact those laws will have on Canadians. We believe that any Canadian
anti-circumvention law must respect the following conditions:
1. No new “access” right. Laws should tie circumvention liability to an intent to infringe
copyright; Canadians should not be liable for accessing content and should enjoy an
unfettered right to do so.
2. Non-infringing circumvention. Consumers should be allowed to circumvent
technological measures, like DRM, providing that their access to the underlying content
does not infringe copyright.
3. Legal tools, devices and services. Anti-circumvention legislation should not prevent
people from developing, selling and using tools, devices and services for circumventing
technological measures for legal reasons.
4. Protect legitimate expectations. Laws should preserve rights and expectations that
consumers have under copyright, such as the right to make copies and backups of works
that they own.
5. Protect privacy. Anti-circumvention laws should not protect technologies that do not
respect privacy rights. Consumers should retain the right to enjoy works privately and
access to content must not be conditional on the surrender of consumer privacy.
6. Do not protect spyware. Removing unwanted and illegal technology such as spyware
should not be a violation of anti-circumvention laws.
7. Protect the public domain. It should always be legal to circumvent DRM in order to
access works that are no longer protected by copyright and exist in the public domain.
8. Prohibit misuse. Any Canadian anti-circumvention law should be balanced by the
creation of specific competitive protections for Canadians and the creation of liability for
“copyright misuse.”
In addition to the threat posed by anti-circumvention laws, here are many facets of copyright law
that run counter to the interests of Canadian consumers and do not reflect the realities of the
Canadian marketplace. Canada needs to bring current copyright law into step with the ways
consumers use copyrighted materials. Here are our recommendations:
1. Clarify the legality of time, space, and format shifting. Copyright laws that outlaw
these practices threaten consumers and are out of step with today’s marketplace and with
reasonable consumer practices.
2. Fix fair dealing. Expand fair dealing rights to include other uses of content like parody,
digital sampling and other transformative uses. Subsume the requirement to provide the
source and author when a work is used for purposes of criticism, review, or news
summary into the general fairness analysis.
3. Legalize back-ups. Protect consumers’ right to protect their investments by making
back-up copies of legal, purchased content.
4. Protect the public domain. Reduce copyright terms, or keep them to the minimum
needed to meet Canada’s international obligations.
5. Rationalize statutory damages. Require plaintiffs to prove damages against consumers,
public institutions, museums, libraries, archives, schools, colleges and universities.
Restrict the application of statutory damages to cases of commercial infringement, where
they are warranted and actually serve the public interest.
6. Abolish crown copyright. The public should enjoy free and unrestricted access to works
produced with public funds.
7. Consumer commissioned photographs. Copyright ownership of commissioned
photographs should stay in consumers’ hands. Doing otherwise frustrates consumers’
legitimate expectations.
8. Protect copyright and consumers against unfair terms. Restrict rights holders’ ability
to undermine copyright’s public policy objectives through the use of contractual terms
that limit consumers’ rights, including the ability to undertake security, interoperability
and reverse engineering research, to make reasonable use of content (time-shifting,
space-shifting), to make private copies for personal use, and to re-sell content.
9. Preserve consumers’ digital rights. The Copyright Act affords rights-holders only
limited rights. It has never been an infringement of copyright law for a consumer to
simply read a book, or to listen to music in the privacy of one’s own home. By the same
token, ephemeral electronic copies, or “RAM copies”, should be treated the same way.
10. Monetize P2P. Efforts to shut down peer to peer networks have failed. We should find
ways to transform P2P networks into legitimate music distribution and compensation
vehicles to benefit Canadian music creators and their fans. It is time the Canadian
government showed some leadership and undertook active study of this option.
We are concerned that proposals to change Canada’s copyright laws do not represent the
interests of Canadian consumers. These proposed changes remove many rights that consumers
have traditionally enjoyed and fail to address obvious changes that would benefit consumers and
creators. We are advocating on behalf of consumers for laws that do three things:
1. Do No Harm. Changes to Canada’s copyright laws must be guided by this principle. We
must not enact changes that harm consumer welfare and threaten education, freedom of
expression, privacy and security. We do not want laws that harm small business, stifle
innovation, or that cost Canadians millions of dollars.
2. Laws Based on Reality, Not Rhetoric. The Canadian government must consult experts
on education, security, privacy, small business, and consumer groups before enacting
legislation. Our copyright laws should be based on the facts, not on rhetoric.
3. Canadian Law Must Serve Canadians. Statistics Canada reports that our copyright
royalty deficit – the amount of royalties generated by Canadians abroad compared with
royalties earned by foreign performers in Canada – has grown dramatically in recent
years. For every $1 earned by Canadian performers outside the country, $5 flows out of
the country. Proposals for longer and stronger copyright will increase the flow of dollars
out of Canada, rather than foster Canadian creativity. It is important that we address this
trade imbalance and focus on the needs of Canadian creators and consumers rather than
the self-interested demands of a limited group of rights holders.
Where changes to copyright laws are needed, Canada must adopt laws that serve Canadian
interests first. Pressure from American interests and proposals must be rejected.