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Digital copyright issues

Chair, Standing Committee on Canadian Heritage
House of Commons
Ottawa, Ontario

Submission of the Public Interest Advocacy Centre on Copyright Reform – Private copying and WIPO ratification

• Thk you for giving Public Interest Advocacy Centre opportunity to provide input to this committee on some aspects of copyright reform process this committee has been engaged in over last year

• think it is of critical importance that committee hears from range of voices with a stake in the issues raised by copyright reform in the digital era and the pressure to meet our international obligations with respect to copyright. This means not just creators and rights-holders or their collective representatives, but from users or consumers of copyrighted materials.

Who we are

• Public Interest Advocacy Centre (PIAC) – non-profit organisation that provides legal services and research to Canadian consumers and the organizations that represent them. Our work primarily concerns important public services including telecommunications, broadcasting, energy, financial services and public transportation.
• PIAC represents coalitions of low income or vulnerable consumers before regulatory tribunals such as Ontario Energy Board and CRTC. Through contributions program for non-profit consumer and voluntary organizations of the Office of Consumer Affairs, Industry Canada, we provide research on consumer issues affecting marketplace, including report, recently completed reviewing individual public submissions on reform of the Copyright Act, called The Consumer's View of Copyright.
• PIAC also member of Balanced Copyright Coalition, a coalition of public interest advocates, academics, Canadian Internet, telecommunications, broadcasting and technology companies and industry associations interested in the development of Canada's Copyright Act
• Aware that focus of today's appearance on private copying levy and WIPO ratification – will address this but would also like to address briefly some larger consumer concerns with respect to WIPO ratification

Private copying levy and WIPO ratification

• Review of this committee's recent transcripts suggests uncertainty about the current conformity of Canada's private copying levy with the WIPO treaty (March 25/04 line 0915)
• As public interest organisation which comments on consumer issues, our view on issue is from perspective of end-user
• Three concerns:
• High costs for end-users or consumers – consumers already pay levy on blank recording media, which now includes MP3 players (Dec. 12/03 Copyright Board decision) – affording national treatment obligations under WIPO treaties will greatly increase the costs imposed on consumers
• Levy generally imposed (despite minor cost differences) – doesn't distinguish between non-infringing and infringing uses, therefore consumers already paying levy even though they may be using recordable CDs simply to back-up computer files, for example, not necessarily for any copyright-related purpose
• Consumer have little knowledge of copyright – being pulled into the debate and subjected to new fees and limitations without any clear understanding of what constitutes infringement and what is permissible under the Act

Ratification of WIPO must reflect Canadian legal environment

• Fair dealing provision of Copyright Act – important for consumers – legal protection for technical measures (such as found in the Digital Millennium Copyright Act of the U.S.) – can have the effect of eliminating fair dealing by protecting measures that prevent access to copyrighted works – U.S. experience reflects fall-out of this for academic and research community – legal cases, numerous bills to mitigate effects of legislation, strong concerns expressed by the Register of Copyright
• Recent court cases have considered and narrowed the definition of copyright infringement in the digital era
• Private copying exception to infringement (1997 amendment to Copyright Act) to allow for the making of a copy of a musical sound recording for the private use of person making the copy
• Copyright Board decision (12 Dec. 2003) – indicated that downloading music for personal use does not amount to infringement (p.20)
• CCH Canada Ltd. v. Law Society of Upper Canada – Supreme Court held that setting up facilities that allow for copying does not constitute authorizing infringement
• Recent federal court decision denying motion by Canadian Recording Industry Association seeking disclosure of identity or certain ISP customers – important holding regarding copyright infringement – court held that the act of placing music files on file sharing service (uploading) does not constitute copyright infringement (para. 27-28)

Public submissions to the federal government consultation opposed to changes that would bring Canada closer to DMCA-style Act

• PIAC reviewed individual submissions – 540 of 700 indicated opposition to amendments that would augment rights of copyright holders over the public, whether through ‘making available right', legal protection for technical measures or rights management information
• General concern – technical protection measures eliminating legal uses and upsetting the balance between copyright holders and the public, in favour of copyright holders

Conclusion

• We need to take the time to adopt changes that won't upset the balance between users and copyright holders
• Canada not behind other G-7 countries in terms of treaty ratification – only U.S. and Japan have ratified WIPO treaties
• Changes in the digital environment affecting copyright suggests the need for new models – i.e. Creative Commons license – allows rights holders to specify their own conditions of use
• Licenses wouldn't override fair dealing but can indicate a voluntary surrender of some or all parts of copyright
• False premise re the Internet in the Status Report – that it is a commercial enterprise only – Internet's fundamental premise and reason for its phenomenal success is that its organizing structure involved a non-market exchange of information – it created a public domain that must be protected and not eliminated by digital copyright reforms

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