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I write to you as a concerned citizen who is gladdened by the determination of the government to update our country's Copyright Act. Technology has no doubt outpaced the law and Bill C-61 is a laudable effort at modernization. While striking a balance is no easy feat, I nevertheless have misgivings with the fine print of the bill as-is. Simply stated, content creators and other legitimate users of copyrighted matieral are currently lost in the mix of what is fast becoming a contest between users and owners.
1) Digital Locks: rendering illegal what is already legal
One example from the world of film making: currently, a filmmaker may legally use a short excerpt from another film under "fair dealing" in his or her own film for the purposes of criticism and/or review. Please see sections 29, 29.1 and 29.2 of the Copyright Act. But under Bill C-61, breaking a digital lock to get the excerpt (from a DVD, for instance), constitutes breaking a section of the Copyright Act even though the ultimate use of the clip is permissible under the same Copyright Act. This is one example of how the bill makes some of its own balancing provisions irrelevant; but there are more. A concerted consideration of the circumvention of digital locks for legitimate and strictly defined use is currently lacking in Bill C-61, as is emboldening the vital concept of "fair dealing" more generally.
2) Fair dealing: an effective response to rapidly changing technology that will stand the test of time
The Supreme Court of Canada has characterized the fair dealing exception in the Copyright Act as a "user's right" in its 2004 decision in CCH v. Law Society of Upper Canada. "Fair dealing" is a safety valve of sorts, like other exceptions in the Copyright Act. However, the Court also cautions that, "in order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively." While the fair dealing provisions in the Copyright Act appear to provide the necessary balance between owners and users, in practice, however, content industries tend to use aggressive litigation tactics to dissuade users from being aware of, and utilizing the fair dealing exception established in law to defend themselves.
As expressed by scholars Laura J. Murray and Samuel E. Trosow: "Aggressive litigation on the part of an overreaching content industry recognizes that risk-averse users will probably back down before taking on a well-financed lawsuit from a corporate entity." The fair dealing exception in Canadian copyright law is a "good thing" though it must be reinforced by statutory revision to indicate clearly that it is a legitimate and integral part of maintaining a balance of diverse interests between content owners and users. In this regard, I would favour revising the fair dealing provisions in the Canadian Copyright Act to more closely resemble the fair use provisions in U.S. copyright law, which more clearly spells out what constitutes fair use, and at the same time, is not overly restrictive.
3) Fair dealing is not a protective umbrella for those who enage in piracy
Lastly, a clear and robust fair dealing exception in copyright law will enable legitimate users of copyrighted material such as educators, universities and colleges, libraries, archives, documentary filmmakers, and members of the news media and public to access copyrighted material, when necessary and in accordance with the law, without detracting from the separate, and equally legitimate concern, of combating piracy. Fair dealing does not protect the pirate. We must be mindful not to lump together legitimate users and uses of copyrighted material with those who pirate and profit for commercial gain.
Thank you for the opportunity to participate in this process. I would like to close by stressing that it is likely unproductive to feel anxious or on edge about the sudden availability of "new technologies". If we fear technology, our response has the potential to be reactionary and misguided. As long as a robust and genuine safety valve (i.e. fair dealing) exists clearly in copyright law and is workable in practice (currently, it is not), this will provide the necessary balance in any given technological environment that we may find ourselves in the future.
Richmond Hill, Ontario