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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.
Submission from Intellectual Property Institute of Canada (IPIC) received on September 27, 2001 via e-mail
Subject: Copyright Consultation
PDF VersionWilliam R. Edgar
President, IPIC
c/o Ridout & Maybee
(Address, phone and fax numbers removed)
27 September 2001
Email: copyright-droitdauteur@ic.gc.ca
Dear Sirs:
Please note that these submissions pertaining to policy differ from earlier submissions made by IPIC.
These submissions are made on behalf of the Intellectual Property Institute of Canada (IPIC).
IPIC
Founded in 1926, IPIC is Canada's pre-eminent association of professionals who specialize in intellectual property including copyright. The IPIC is committed to the protection and promotion of intellectual property in the Canadian economy.
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Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
27 September 2001
Page 2
IPIC is the only intellectual property association in Canada to which nearly all patent agents, trade-mark agents and lawyers specializing in intellectual property belong. IPIC members work in all sectors of the Canadian economy including major Canadian law firms, private practice and corporations. IPIC members can be found in all areas of the Canadian "knowledge economy" such as biotechnology, e-commerce and information technology.
Our submissions with respect to the policy aspects of the above-noted paper follow under appropriate headings.
Ratification of the Treaties
Thirty countries must deposit instruments of ratification before the WCT and WPPT treaties come into force as international treaties. As of July 31st, 2001, the WCT has been ratified by 27 countries and the WPPT has been ratified by 24. The United States has already ratified both of these treaties. The European Union has concluded its Copyright Directive which requires that the 15 Union Members ratify both Treaties.
The Treaties and copyright law generally, provide 'exclusive rights' to creative individuals which allow them to determine whether and how their works are copied and distributed. This ensures that they enjoy the economic rewards of their creativity, which serves as a powerful incentive.
Copyright law also encourages local and national expressions of culture. Inadequate protection deprives local creative people of adequate compensation, and subjects them to unfair competition from counterfeit copies accessible world-wide through electronic commerce.
Counterfeiting and other forms of piracy have become a major criminal enterprise. This not only hurts rights owners, but also destroys legitimate jobs and deprives governments of substantial tax revenues. Copyright laws provide the principle legal tools for fighting piracy
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Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
27 September 2001
Page 3
Electronic commerce in copyrighted products requires a healthy trading environment where only legitimate copies of works are transmitted, under the terms permitted by the rights owner. The implementation of the Treaties will provide additional certainty to rights owners. As the Treaties are adopted world-wide, they will also ensure more consistent protection and prevent 'piracy havens' from developing across the wide reach of the Internet.
National protection is not enough to obtain the benefits of electronic commerce. The Treaties will only benefit Canadian rights holders if Canada is a contracting party of both Treaties.
In light of the above, it is IPIC's position that the treaties should be ratified by Canada.
4.1 Making Available
An explicit right to make available will enhance the abilities of rights owners to control the unauthorized exploitation of their works over the Internet. In addition, a separate right of making available may be expressed in an amendment to the Act in a technology-neutral manner which would cover making works available on demand by any means and for access using any technology or method of transmission.
It is submitted that the Act should be amended to ensure that an exclusive right of "making available" will be a part of copyright for all rights owners.
4.2 Legal Protection Of Technological Measures
Both the WCT and the WPPT include provisions that oblige member countries to provide "adequate legal protection and effective legal remedies" against the circumvention of
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Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
27 September 2001
Page 4
effective technological measures that are used by rights owners in connection with the exercise of their rights under the Treaties.
Since technological protection measures are always vulnerable to circumvention, the main concern of copyright owners relates to the downstream effects of such activities and in particular the distribution and development of means for circumventing technological protection measures.
In the process of drafting the relevant provisions of the Digital Millennium Copyright Act, it became apparent that a prohibition on the devices and services that enable circumvention was critical. Since the act of circumvention, which frequently is also copyright infringement, was typically immediately followed by an act of infringement, a prohibition focusing exclusively on the act of circumvention adds little to existing protections under copyright and suffers from the same practical difficulties in enforcement. In the absence of such a prohibition, a copyright owner's only recourse is to attempt to detect individual infringements and bring a multitude of actions against the infringers. From a practical point of view this was viewed as expensive and inefficient and ultimately ineffective to combat on-line infringement.
Circumvention and/or related activities (such as the manufacturer or distribution of circumvention devices) should be dealt with only in the context of works or other subject matter protected by the Copyright Act. The application of technological devices to non-copyrighted material may be protected by contract and other related principles.
If the government does not adopt provisions relating to technological measures, the playing field will not be level in the digital environment since such protections already exist in the United States, Europe and other countries.
4.3 Legal Protection of Rights Management Information
Rights management information is becoming increasingly important in a digital environment. Accordingly, a restrictive approach should not be taken concerning what is included within the concept of rights management information and the definitions contained in the WCT and the WPPT should be given full effect. .../5
Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
27 September 2001
Page 5
The fact that rights management information includes terms and conditions of use, should have no effect on the enforceability of such terms and conditions. Enforceability should be determined by the application of the usual contractual doctrines or other relevant legislation. Any provisions of the Act should be neutral and similar considerations should apply to terms and conditions, which were not legally valid.
If duplicate or overlapping sanctions could result, it is suggested that the choice of one sanction should preclude the applicability of other sanctions.
In a fashion similar to that set out above relating to the terms and conditions, compliance with any other laws of the land must be the obligation of the party seeking to obtain such rights management information. The provisions of the Act should be neutral.
4.4 Liability Of Network Intermediaries Such As Internet Service Providers, In Relation To Copyright
The provisions of the Act should be clarified, in particular the relevant provisions of the Act should be amended and the issue should not be left to the Courts or the Copyright Board.
The liability of ISPs cannot be effectively dealt with on a contractual basis.
Practical difficulties can arise as a result of the fact that website proprietors can move their operations between jurisdictions and arrange for their sites to be mirrored or copied onto servers in multiple jurisdictions. In such cases, it may be difficult for Canadian copyright owners to take effective action to protect their interest.
A notice and take-down system may be inconsistent with existing licensing practices and override exclusive rights.
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Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
27 September 2001
Page 6
Consideration could be given to amending the Act to make ISP's responsible for infringement in a fashion analogous to that set out under current subsections 27(2) and (3) of the Act. In other words, they would be responsible for secondary infringement where unreasonable business practices contributed to the infringing activity. The requirement to show knowledge could vary depending on the nature of the business practice. In determining whether they had engaged in unreasonable business practices, it should be taken into account whether infringing material was taken down when this was brought to their attention.
Review of the Act
Section 92 of the Act requires that no later than September 1, 2002, the Ministry of Industry shall cause to be laid before both Houses of Parliament a report on the provisions and the operation of the Act including recommendations for amendments.
We believe that this process should be followed on a continuing basis at five year intervals to ensure that the Act remains relevant and responsive to a rapidly changing technological and business environment.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Yours very truly,
William R. Edgar
President, IPIC
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