ARCHIVED — IPIC / CBA

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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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.

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Submission of the Joint IPIC / CBA received on September 14, 2001 via e-mail

Subject: Submissions - Government of Canada Copyright Reform

PDF Version of the submission on Digital Copyright Issues
PDF Version of the submission on The Application of the
Copyright Act's Compulsory Retransmission Licence to the Internet

Submission of the IPIC Copyright

Technical Committee concerning the

Government Consultation Paper

on

Digital Copyright Issues

15 September, 2001

 

The following are the comments of the Intellectual Property Institute of Canada’s technical copyright committee on the government’s Consultation Paper on Digital Copyright Issues (the "Digital Paper"). Our comments are confined to technical aspects of the Digital Paper, rather than policy matters. We hope in this way to assist the government in the challenge of implementing the digital agenda in Canada.

 

Right of Making Available: Works

The Digital Paper states the departments’ view that the Copyright Act provides for an on-demand communication right (right of making available) within the right to authorize the communication of a work to the public by telecommunication. They also state that judicial interpretation of "to the public" has not narrowed the concept to preclude its application to an on-demand communication. The departments, accordingly, do not propose to amend the Act to provide for a right of making available for works.

The committee recognizes the complexity of the issues surrounding the creation of the right of making available. The committee would, however, like to point out the following reasons for reconsidering the Government’s position:

1. The Copyright Board in its Tariff 22 decision distinguished between availability and communication. Availability can occur without communication to the public. It remains unclear in our law, however, whether the right of authorizing communication to the public would apply to situations in which a work is simply posted in a passive sense. As a policy issue, the Departments will have to determine whether there should be a "making available" right – i.e., a right resulting from the mere passive availability where no communication takes place. In this connection, full consideration should, obviously, be given to the effect of the Copyright Board’s Tariff 22 decision, some of the implications of which are not clear.
2. If a right of making available is to be introduced in respect of performers performances and sound recordings, as it must for WIPO Treaty implementation, the corresponding lack of such an explicit right for works could cause confusion at a minimum, not just to Canadians generally, but internationally. It could even result in a denial of the right, based on the absence of an express right for works when an express right is provided for sound recordings and performances.
3. One of the purposes, as we understand it, of creating the right of making available in the WIPO Copyright Treaty was to ensure that "on-demand communications", i.e., communications made in such a way that members of the public might access works from a place and at a time individually chosen by them, would be considered definitively as being made "to the public". The government may wish to consider the benefit of lending clarity and certainty on this point under Canadian law by express statutory provision for the right of making available.

If there is to be a right of making available for works, consideration will have to be given to whether the right should be one of imposing direct liability on the entity on which the material is posted and/or indirect liability by way of authorization on the entity which posts the material.

We note that there is a jurisdictional or transborder issue in where a work, performance or sound recording is deemed to be made available.

 

Right of Making Available: Performances and Sound Recordings

The Departments note that concerns have been raised that having three separate exclusive rights of making available applicable to sound recordings (that is, for each of works, performer’s performances and sound recordings) may unduly restrict the exploitation or dissemination of sound recordings on line. Given that the performance rights of musical works are generally administered pursuant to collective licence by SOCAN – the equivalent of a compulsory licence - the creation of exclusive rights for performers and makers of sound recordings may raise technical issues of effective parity and control among rights holders.

We do not understand the discussion in the proposals concerning "on-demand streaming" and "streaming".

 

Legal Protection of Technological Protection Measures

As the issues raised by the Digital Paper on the legal protection of technological protection measures are matters of policy, we purposely do not comment on this matter at this time.

 

Legal Protection of Rights Management Information (RMI)

We have a number of points to make regarding the issues surrounding the legal protection of rights management information.

Regarding the issue of incorrect RMI, as a technical matter, we point out that the WIPO Treaties do not require that the RMI as originally embedded or attached by the rightsholder/author must be correct at all times and places.

With respect to the definition of RMI, the definition must at least contain the items mentioned in the WIPO Treaties if Canada is to be in a position to ratify those treaties. The drafting of the definition must be done with care if Canada is to protect emerging international identifying numbers, such as the ISAN, to which the Digital Paper refers.

Permitting the addition of other information to the definition by regulation is also a legitimate means to ensure flexibility in the definition.

 

 

ISP Liability Limitation

Our remarks on ISP liability relate to jurisdiction, the horizontal nature of ISP liability questions, and the issue of extending the discussion on the limitation of liability to reproduction on-line generally.

 

Jurisdiction

As the Departments acknowledge in the Digital Copyright Paper, some of the most difficult issues for copyright legislation as applied to the Internet are those surrounding conflict of laws. The Departments indicate that Canada will be a participant in the work of WIPO in addressing these issues for intellectual property.

While we recognize that the point raises much broader issues, consideration should be given to the circumstances under which liability arises in an international situation in regard to such matters as cross-border Internet retransmission and the availability of copyright works and other subject matter on websites hosted on servers located outside Canada. The suitability of the rules on point set out in the Copyright Board’s Tariff 22 decision may need evaluation. (It should be recognized that those rules are subject to judicial review at the forthcoming hearing before the Federal Court of Appeal, which is scheduled to take place on September 25-26).]

Horizontal Matter.

The issue of limitations for ISP liability is a horizontal issue, meaning that it is not confined to copyright issues, but is an issue for trade mark infringement, defamation, obscenity and other laws. The European Union dealt with it outside of the copyright and related rights directive for this reason. The Departments must ensure that amendments to the Copyright Act also take into account other laws that govern on-line activities.

 

When considering the ISP liability provisions, the Departments may wish to consider the extent to which laws outside of copyright which may impose liability may fall under provincial jurisdiction.

General Limitation of Liability for Reproduction On-line

The departments pose the question as to whether the examination of the proposed limitation of liability from the application of the reproduction right on the Internet should be expanded from ISPs to a more general limitation. This is a question of policy, which we purposely do not address at this time.

 

 

 

Submission of the Joint IPIC / CBA Copyright
Technical Committee on the Government Consultation Paper on

The Application of the Copyright Act's

Compulsory Retransmission Licence to the Internet

15 September, 2001

The Committee agrees that it is desirable to clarify the position of such retransmissions by legislation.

As the Committee is a technical committee it is inappropriate for it to comment on the policy issues raised by the Paper. It may assist the Government for it to set out some of the points dealing with technical matters, which should be borne in mind by the Government when considering the issues raised in the Paper and in drafting any legislation which it considers appropriate.

The points are as follows:

1. Under the heading "Principles and Options" the Paper deals with the subject of technological neutrality.

The concept of technological neutrality needs more detailed analysis. It is only properly applicable in certain limited circumstances. Copyright is concerned with setting out the circumstances under which the use of copyright works should be subject to the control of the copyright rights holder. A prime purpose of such control is to enable the copyright owner to derive an economic benefit from the use of the work by third parties. As a result it is a reasonable principle to state that if there are two technical ways to achieve the same ultimate result the copyright rights position should be the same. This principle only applies, however, if the two ways do not have any other uses which are not the same. Where there are different uses, to focus merely on one is likely to bring about anomalous results (e.g. as the Paper points out, a cable retransmission has different economic results on an overall basis from an Internet retransmission. Accordingly, focusing merely on the fact that both result in an image being retransmitted on a user’s screen is too narrow a focus). The subject is discussed by Professor Ysolde Gendreau in a paper entitled "A Technologically Neutral Solution for the Internet: Is it wishful thinking?"

2. The Paper in various places stresses the need for certainty and in this connection raises the possible effect of technological change.

We have the following comments:

1. This issue should be considered in the context of the legislative process. It is safe to predict that technological change will continue to be rapid. To attempt to consider its likely course is in our view unrealistic.
2. We recognize and support the Government’s intention that copyright law reform should be a continuing exercise. While we recognize that at times it is appropriate for the Government to react quickly by legislative amendment to a copyright problem, in general the process of legislative amendment is slow.
3. We would suggest, accordingly, that the Government in any legislation give itself the maximum degree an ability to proceed by regulation. The extensive consultations which usually precede the promulgation of regulations should give the various interest groups adequate assurance that their interests will be adequately considered.

3. We consider this approach may assist the Government in dealing with some of the issues which it raises in relation to the definition of a retransmitter.
4. We think it is desirable that to the greatest extent practical copyright issues be dealt with in the Copyright Act in a manner that they cannot be adversely affected by changes to the Broadcasting Act. We recognize that in formulating copyright policy the Government’s policy in respect to broadcasting has to be taken fully into account. Broadcasting and copyright give rise, however, to different problems, which affect different constituencies. In our experience, unless this approach is taken, issues are likely to be considered principally from one perspective (the present problem with the Internet is a good example). We recognize that certain references to the Broadcasting Act continue to be desirable (e.g. the compulsory licence regime should not apply to a cable operator who is operating without an otherwise required licence).
5. At pp. 18-19 the Paper deals with banner advertising. In this connection consideration should be given to Canada’s obligations under Article 2006(2)(b) of the Canada-U.S. Free Trade Agreement, which reads in part as follows:

"b) Where the original transmission of the program is carried in signals intended for free, over-the-air reception by the general public, willful retransmission in altered form …. of signals carrying a copyright holder’s program shall be permitted only with the authorization of the holder of copyright in the program."

Such consideration should include consideration of the extent of Canada’s obligations under this provision, bearing in mind the various ways in which material appearing on the viewer’s screen at the same time can be changed.

6. While we recognize that the point raises much broader issues, consideration should be given to the circumstances under which liability arises in an international situation (e.g. such as those involving web site hosting and Internet retransmissions) – e.g. are the rules set out in the Copyright Board’s Tariff 22 decision suitable? (It should be recognized that these are subject to judicial review at the forthcoming hearing before the Federal Court of Appeal, which is scheduled to take place on September 25-26).
7. An Internet retransmission of signals in addition to giving rise to the issue of telecommunication to the public also gives rise to issues arising out of the temporary reproduction in the course of retransmission. We recognize that the extent to which such reproduction should attract liability is a much broader issue, which is to some extent addressed in the paper dealing with digital copyright issues, but in our view any clarification of the legal position relating to Internet retransmissions should deal with this aspect also.

HBM

September 13, 2001

IPIC/doc/ Comments on Consultation Paper - Amende