Copyright Law Ain�t For Wimps

Following through on its 2007 throne speech, the Conservative government introduced Bill C-61 on June 12, 2008 in the House of Commons with the intent to bring Canada’s existing copyright laws up to speed with the realities of the digital era.

Bill C-61, however, is not ever going to see the light of day.

Copyright legislation is so contentious in its nature, that for any minority government it is difficult to find a balance that will have a chance of adoption by all parties.

Given the length of time a bill needs from introduction through third reading and proclamation, it is likely that this proposed bill will die on the order paper at election time.

Meanwhile, Industry Minister Jim Prentice would have us believe that he introduced amendments with a “Made-in-Canada” approach benefiting all Canadians that balances the needs of users and creators.

The Canadian Recording Industry Assn., the Canadian Independent Record Production Assn., the Alliance of Canadian Cinema, Television and Radio Artists, and the American Federation of Musicians have all lined up to applaud the draft legislation.

However, the 200-strong Canadian Music Creators Coalition has slammed the draft legislation because it somewhat supports suing music fans and fails to outline ways for creators to be paid for their work.

The bill includes a private copying of music provision that allows consumers to copy music onto their iPods, and a format shifting provision that permits transferring content from analog to digital formats.

However, it also creates a blanket prohibition on circumventing technological protection measures often featured on CDs and DVDs.

These anti-circumvention provisions are the most criticized elements in the new legislation, since they criminalize behaviour, such as transferring songs from Apple's iTunes software (which uses the company's proprietary DRM technology) to some other format that makes them easier to play on a different device.

As well, music fans cannot share files with anyone else in their home. Nor can they share files with friends online through file-sharing programs such as BitTorrent or LimeWire.

The bill promises $500 fines for "private use infringements," essentially Canadians found in possession of bootleg music or movies.

The amendments also proposes $20,000 fines for Canadians that break a digital lock to make bootleg product, and even steeper fines for those that profit from the sale of pirated product.

So basically, you can rip a CD to your iPod only if you own the original CD and keep it indefinitely. And it has to be your iPod as well. If you want to make a backup library of tracks you downloaded legally from the web, the backups may be prohibited under the bill.

Try to circumvent the access and copy controls, and you could be in for a hefty fine of up to $20,000 per infringement.

Significantly, the copyright amendments relieves Internet Service Providers (ISPs) of any liability when it comes to pirated content flowing across their networks. However, they will be required to pass on copyright infringement allegations to the particular subscriber, and keep a record of their personal information for at least six months.

In effect, the proposed legislation does little more than somewhat match the "notice" system already widely used voluntarily in Canada.

Engagement from ISPs over music content issues remains very limited. The reason is that, while combating unlawful consumption, developing new business models is a priority area for the music community, it isn't for ISPs.

While Prentice has given a handful of new rights to Canadian consumers, each is subject to limitations, and undermined by the DRM provisions.

Taken in whole, the amendments stop woefully short of bringing Canada’s existing copyright laws up to speed with the realities of the digital era.

Nor would the copyright legislation create a predictable legal environment that would make the creation and distribution of content to consumers more likely or more possible.

Nor will the legal framework created by the amendments bring Canadian copyright in line with intellectual property laws in the United States, the United Kingdom or Europe.

Of course, no one is going to sue anyone for $500 for illegally downloading copyrighted material, but the Canadian government has taken the view that the ability to sue should act as a deterrent for those considering sharing files illegally.

Stop laughing.

And CRIA has no intention of launching a barrage of lawsuits, in a manner the Recording Industry Association of America (RIAA) has in the United States, as a result of the new legislation. Nor are Canadian artists interested in suing music fans.

We're a mobile society, addicted to technology. Digital utopianism as advocated on countless blog sites, and no doubt advocated by many of the 45,000 Canadians on Michael Geist’s Fair Copyright for Canada Facebook group, clings to an implausible belief that the internet should be an endless free lunch.

However, this proposed legislation suggests only that the Conservative minority government doesn’t really know what to do about updating Canadian copyright.

Only that they want to do something.

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Reprinted by permissions.

Journalist/broadcaster/researcher Larry LeBlanc has been a leading figure in Canadian music for four decades.

He has been a regular music commentator on CTV’s “Canada A.M” for 35 years, and has been featured on numerous CBC-TV, CTV, YTV, Bravo! MuchMusic, MusiMax, and Newsworld programs in Canada; VH-1, and EEntertainment in the U.S.; and BBC in the U.K.

Larry was a co-founder of the late Canadian music trade, The Record; and, most recently, the Canadian bureau chief of Billboard for 16 years.

He has been quoted on music industry issues in hundreds of publications including Time, Forbes, the London Times, and the New York Times.

The LeBlanc Newsletter is exclusively carried and archived by Canadian Music Week in Canada at: http://www.cmw.net/cmw2008

it is available In the U.S. at Encore Celebrity Access: http://encore.celebrityaccess.com