ARCHIVED — Canadian Copyright Institute

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 from Canadian Copyright Institute received on September 17, 2001 via e-mail

Subject: Submission on Consultation Paper on Digital Copyright Issues

PDF Version

Response to Consultation Papers: A Framework for Copyright Reform, and Digital Copyright Issues

Introduction

The Canadian Copyright Institute ("the Institute"), founded in 1965, is an association of creators, producers and distributors of copyright works. The Institute's objectives are

• To encourage a better understanding of the law of copyright;
• To engage in and foster research in Canadian, foreign and international copyright law;
• To encourage the collective administration of copyright that will enable creators and producers of intellectual property to receive fair remuneration for their work;
• To work with other organizations concerned with the protection of intellectual property rights towards improving copyright legislation and enforcement.

The Institute played an active role in the Phase II revisions, publishing a reporting service on the proceedings. We are pleased to participate in this most important current round of consultations on digital copyright issues. In what follows, we will comment on several aspects of the Framework Document and on principles articulated by the government for copyright reform, and then consider the proposals set out in the Digital Copyright Paper.

A Framework for Copyright Reform

The Canadian Copyright Institute applauds the government for commencing the process of public discussion of the issues of copyright reform in Canada. The process of copyright reform is far from easy, and requires a structured approach. We support the government's decision to approach this task in a step-by-step manner.

A brisk pace for reform is being set at the international treaty level, with the world moving towards the coming-into-force of the WIPO Treaties, and several significant treaty initiatives pending.

The Institute appreciates the complexity of the issues which the government is being asked to resolve and implement. We all recognize the challenges of coming to an equitable proposal on hard issues and the need for thorough research and study.

To implement the framework of step-by-step continuous reform, the government, together with the copyright and user communities, should consider the need for greater support in the preparation of studies and research, and the holding of industry roundtables, as a means to assist the government in achieving the goals of the framework document.

More immediately, the Institute is very pleased that the government has made the implementation of digital copyright reforms one of its top priorities. It has focused on the three key substantive digital reforms in the WIPO Treaties. But implicit in these issues is the need to ensure that digital protections are in force as widely as possible and available to protect Canadian interests on a global basis. To achieve this, WIPO ratification - and resolution of the few remaining issues needed to bring our law into compliance with the WIPO Treaties - is needed.

WIPO Ratification

The full benefit of the international protections of the WIPO Treaties will not be available to Canadians unless and until Canada has ratified the Treaties. The government has clearly recognized the importance of digital copyright issues. It must equally recognize that a resolution of those issues, to be effective on a global network, must be widely implemented internationally and must be extended to Canadians. This can only occur by ratifying the Treaties.

The Institute urges the government to address the remaining matters in our law - primarily a moral right for performers and amendment of the term of protection of photographs to' life of the author plus 50 years' - concurrently with the consideration of the much more difficult digital copyright issues now being examined. These issues should not be permitted to delay the critical benefits that WIPO ratification will bring.

Principle of Technological Neutrality

The principle of technological neutrality is included prominently in the list of principles which the government is using to guide its considerations in the implementation of the digital agenda. But technological neutrality is not the unmitigated good that it might appear. While no one can dispute the ideal of a copyright act the provisions of which adapt equitably without revision to the advent of new technologies, this ideal is simply unattainable. The attempt to achieve it through technology-neutral drafting may have an effect opposite to the goal of contributing to long-term legislative stability. The litigation surrounding the issue of Internet retransmission is a case in point.

With more analysis, it may be that technological neutrality does contribute to long-term legislative stability in certain aspects of copyright legislation, such as the definition of works , or of exclusive rights. But in our view technological neutrality can be counterproductive, or worse, when applied to exceptions and statutory licences. Particularly where exceptions are concerned, this principle cannot substitute for thoughtful analysis based on knowledge of the impact of a given exception in defined technologies.

In defining exceptions, the balancing of interests that must be done between rights holders and users is dependent on an appreciation of the effect a given use will have in a given technology. The 'three-step test' of the Berne Convention, restated in the WIPO Treaties, specifies that exceptions are appropriate only in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. How can such a test be applied in the abstract? Technologically neutral language can tend to broaden exemptions in unforeseen and inequitable ways.

To take a concrete example, the impact of making a single copy of a tangible work available to the public on a bookshelf is profoundly different than the impact of making a single, intangible copy available on a digital network. The Internet is a public resource, at once a means of perfect, costless, instant, infinite, global copying, and of costless, instant, infinite global dissemination. No technology the world has ever seen before has combined these features. Certainly the bookshelf doesn't.

The principle of technological neutrality must not be allowed to become an intellectual straightjacket, when what is needed is good hard analysis.

Digital Copyright Issues

Right of Making Available

The Institute is of the firm view that a specific "right of making available" should be provided, not only for performances and sound recordings, but also for works.

Despite the opinion expressed by the expert consultants in their 1998 report that the communication right is sufficiently broad to include a making available right for authors, we are concerned that this position may be inaccurate.

It remains unclear in our law whether the right of authorizing communication to the public applies to situations in which a work is simply "made available" on-line, without being subsequently accessed by a member of the public, and so communicated. The simple act of posting is comprised within the right of making available, but we are concerned that it may not be considered as within our right of communication to the public.

The Tariff 22 decision suggested that the right to authorize communication to the public might apply to the simple act of making available on-line. But does this suggest that by merely inviting access to a site, a poster is "authorizing another person to communicate to the public by telecommunication?" The Institute believes the implications of this aspect of the Tariff 22 case are not clear. The applicability of the right of making available should be clarified in our law.

Further, if there is to be an express right of "making available" granted to performer's performances and sound recordings, as required for WIPO implementation, the lack of such a right for works may call into question the entitlement of authors to such a right, or invite judicial distinctions between the scope of the right for works and for sound recordings.

Finally, we feel that, to the extent that judicial interpretation could limit the meaning of 'to the public" so as to exclude on-demand communications, that risk should be eliminated. This was done at the international copyright treaty level for good reason, and in our view, there is every reason to follow suit in Canadian law.

The goal of clarity and certainty in the law would be better served by providing for an express right of making available for works.

1. How would a "making available" right affect the balances among the various copyright interests?

   This question is not relevant to the right of "making available" as applied to works.

2. In which respect might such a right require limitations or be subject to exceptions?

   The Institute does not believe that any exceptions or limitations to the right of making available for works are required.

   There are already limitations and exceptions respecting the right to communicate to the public by communication - such as the retransmission compulsory licence, which is undergoing a much-needed re-examination due to the serious issues raised by the claims of would-be Internet retransmitters. The example of Internet retransmission forcefully demonstrates that existing exceptions and limitations cannot be simply extended into digital networks without serious analysis of the impact the placing of a work online can have.

   The application of any exceptions to the Internet, whether proposed or existing, must be carefully analyzed with reference to the "three-step test" established by Article 9(2) of the Berne Convention and subsequently incorporated in TRIPS and the WIPO Treaties. Limitations of or exceptions to copyright must be confined to certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

3. In which respects do existing rights, e.g., the reproduction right, fail to provide a measure of control which is comparable to a distinct "making available" right?

   Delegates to the WIPO Treaties Diplomatic conference recognized that the right of reproduction was not broad enough to sufficiently protect intangible works transmitted on digital networks. Rights holders need both the reproduction right and the right to authorize communications, inclusive of the right of making available, to maintain their exclusive rights in an online environment.

Legal Protection of Technological Measures (TPM)

The Institute fully supports the implementation of technological protection measures (TPM) in our law. Effective and properly calibrated TPM has the potential to make copyright works much more readily available online by offering rights holders a secure means to use the Internet for digital delivery of works, and by allowing for uses authorized or permitted by law. They are the key to e-commerce in digital work online.

The WIPO Treaty provisions oblige a contracting party to provide adequate legal protection and effective legal remedies against the circumvention of TPMs. No guidance on the legislative means to provide such protection and remedies is given. In the view of the Institute, however, to be both adequate and effective, Canada's TPM provisions must prohibit both the act of circumvention and trade in circumvention devices and services.

Merely targeting the act of circumvention will not be effective to protect TPM if circumvention services or devices are readily available, online and elsewhere. A prohibition on conduct alone adds little to existing copyright protections and suffers from similar practical difficulties in enforcement.

The Institute suggests that consideration be given to the following principles in developing policy and drafting implementing legislation for TPM:

1. The provisions must create sanctions against the act of circumvention, and against possession of and trade in circumvention devices, services, and components thereof, including software and data;
2. Legislation must establish both civil and criminal liability;
3. A full range of remedies must be available, including damages, injunctions, accounting, statutory damages, delivery up and ex parte search orders;
4. Access control technologies, as well as technologies that control subsequent uses within the exclusive rights of copyright, must be addressed;
5. Any express limitations that may be considered to the prohibition against circumvention must be narrowly and carefully defined and limited to ensure that the effectiveness of TPM provisions is not undercut;
6. The government should promote means of ensuring that TPM is developed in ways that accommodate the legitimate and permitted uses of users, rather than legislating broad exceptions that would encourage an unhealthy practice of circumvention of TPM to make use of works pursuant to legitimate exceptions.

1. Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over the access to copyright protected material, what factors suggest legislative intervention at this time?

   The Internet presents both an enticing possibility and a terrible risk for works. On the one hand, it offers an opportunity for e-commerce in digital works: an exciting new means of dissemination of digital works worldwide. On the other hand, the Internet presents a readily available tool for unauthorized, perfect, costless, instant, multiple, global copying and exponential worldwide dissemination that can be done in private and is difficult to detect. The phenomenon of Napster has spread and is increasingly affecting all works and subject matters, not only sound recordings and computer software but also books and audiovisual works. This trend will only increase.

   TPM is essential, both to enable electronic commerce in digital works online with some measure of confidence, and to combat piracy. Once rightsholders lose control of their works on the Internet, one copy can become millions of copies in no time, and the value of the work to the rights holder can be badly diminished. There is no effective provision in our law to prevent hackers from acting to defeat technological protection measures. There is a pressing need for legislation to do so.

2. Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors would be considered determinative in deciding whether circumvention and/or related activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?

   The legal protection and remedies contemplated by the WIPO Treaties for protection against circumvention of TPM are designed to protect TPM for a defined purpose. Protection is extended to TPM insofar as it is used by rights holders in connection with the exercise of their copyrights and restricts acts which are not authorized by the rights holder or permitted by law. It is not contemplated that such protections would extend to technological devices when applied to public domain works. Most encrypted communications over the Internet will be incidentally protected by copyright. The Institute has some difficulty in understanding the problem that the government is seeking to address.

   It is our confirmed view, however, that the significant issues surrounding the balancing of user and rights holder interests in the protection of TPM for copyright purposes cannot be adequately addressed other than within the Copyright Act.

3. If the government were to adopt provisions relating to technological measures, in which respects should such provisions be subject to exceptions or other limitations?

   Ideally, provisions protecting TPM would not be subject to exceptions that would permit circumvention. To permit circumvention or trade in circumvention devices could seriously undermine the effectiveness of such measures.

   The Institute understands, however, the legitimate concerns of users who are concerned that technological protection measures will "lock-up" works, denying to users the opportunity to make uses of digital works which would otherwise be permitted by law through exceptions. (Just what such exceptions should be in the digital context, and what safeguards might be imposed in the exercise of those exceptions, we leave for another discussion).

   The Australian Copyright Amendment (Digital Agenda) Act limited its TPM provisions to making it illegal to manufacture or trade in devices or to provide services for circumventing TPM. It also provides exceptions permitting the provision of such devices or services to qualified persons in connection with library, archives and educational institution exemptions. The Institute believes that provisions like these will not provide the level of protection contemplated by the WIPO provisions.

   The DMCA prohibits trade in circumvention devices in respect of both access controls and copy controls, and prohibits the act of circumvention of access controls. In order to permit fair use, the DMCA does not prohibit the act of circumvention of copy controls, assuming a user can find the means to do so. Otherwise the DMCA contains a list of highly specific, complex exemptions.

   In the opinion of the Institute, neither of these approaches is ideal.

   The Institute believes that an approach more in keeping with that found in the EU Copyright Directive would be preferable. That approach places the onus on copyright holders to find means to accommodate public purpose exceptions, rather than permitting circumvention by creating exceptions to the prohibitions on circumvention. The government might explore with users and rights holders whether there is some mechanism to encourage the design of technological protection measures or the provision of technological services that would enable certain permitted uses where works are protected by technical protection measures, particularly for institutional users such as libraries. Collectives may be able to play a role in facilitating, as well.

4. Are there non-copyright issues, e.g., privacy, that need to be taken into account when addressing technological measures?

   Privacy is an important concern that is common to all areas of electronic commerce. The legal protection of TPM is not intended to protect against unauthorized invasion of privacy contrary to privacy laws of general application. An express provision to this effect may go some way to clarifying this.

Legal Protection of Rights Management Information

Rights management information is a key tool for the on-line exploitation and dissemination of works. The integrity of this information must be protected. The Institute is therefore firmly in support of the government proposal to implement effective legal protection of rights management information ("RMI") in the Copyright Act.

The Departments have demonstrated a keen commitment to the promotion of online rights management over the last two years, in their promotion of the Canadian Digital Cultural Content Initiative in all its varied aspects. Rights management information will serve a number of critical functions in the dissemination of works on-line, as the Departments are well aware. The Institute is pleased to see this appreciation carried over into the thoughtful proposals presented on the implementation of RMI in Canada.

The Consultation Paper contemplates two RMI offences; the first, the removal or alteration of RMI to aid or abet infringement; the second, the alteration or removal of RMI that would impede the management of rights. The Institute supports the inclusion of both these new offences in our Act.

The second offence, we infer, will grant protection against interference with the primary function of RMI - rights management - whether or not the ultimate intention of the offender is infringement. The proposal to include this second offence recognizes a gap in protection, and seeks to fill it. It will provide a more effective remedy for rights holders against those who deliberately interfere with a critical tool of on-line management.

We suggest in addition that there be protection against, not only removal or alteration of RMI, but the addition of RMI without authorization. This could be similar to the US provision that creates sanctions for knowingly providing false rights management information.

1. What information should be protected under the Copyright Act? Given that information may cease to be accurate over time, should information relating to, for example, the owner of copyright and to terms and conditions of use be protected?

   All the information contemplated under the definition of rights management information in the WIPO Treaties must be protected in our Copyright Act, so as to meet WIPO Treaty minimums for ratification. The Institute appreciates the rationale behind the government's Option B, which would eliminate terms and conditions of use and other types of rights information that may be jurisdiction-dependent for its validity or accuracy. The Institute agrees with the point that international standard identifiers may well come to be the dominant form of RMI. But we believe that Option B is not an appropriate response.

   The use of changeable or jurisdiction-specific information at best limits the usefulness of RMI and at worst would cause confusion. But the Institute is confident that such matters are better addressed by evolving industry practice, than by introducing restrictions into the WIPO definition. Embedding information that will prove inaccurate, invalid or will stale-date over time is not a practice designed to promote the goals of the rights holders who are responsible for deciding what RMI to include with their digital works. Rights holders will have every incentive to design their RMI to avoid these problems.

   The Departments should ensure, however, that the definition of rights management information adopted is wide enough to include international identifiers. Typically, such numbers do not contain encoded information, but rather are simply links to databases of identifying information.

2. Certain terms and conditions may not be legally valid in Canada if they are contrary to public policy. In light of this, what limitations should there be on the protection of such information? Is a provision required that specifies that the protection of such information does not imply its legal validity in Canada?

   The validity or accuracy of RMI should be a matter for contract law. The protections for RMI in the Copyright Act should not be dependent on the validity or accuracy of such RMI, nor should the protection of RMI act as a presumption of its legal validity.

3. Given the fact that some technologies serve a dual purpose, i.e., reflect rights management information and protect a work against infringement, how should provisions concerning rights management information take into account provisions regarding technological measures?

   The Institute does not see a need for RMI provisions to take into account TPM provisions or vice versa. These are separate measures designed to address different functions. If, however, certain exceptions were to apply to one provision (such as TPM) and not to the other (RMI), it would be inequitable to permit a rights holder to bootstrap TPM to a higher level of RMI protection by using technology that combines those two functions.

4. If the Act were amended to protect rights management information, does the fact that some technologies may be used both to set out rights management information and protect a work against infringement mean that duplicate or overlapping sanctions could result in some cases?

   The government should not be deterred from creating two separate offences by this concern. Coincident liability for multiple infringements arising from one act is not uncommon. It may be left to the discretion of the judge to weight the equities in imposing sanctions under both provisions under the circumstances.

5. Are there non-copyright issues, e.g., privacy, that need to be taken into account when addressing rights management information?

   Please see the Institute's response to question 4 concerning technological protection measures.

Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright

The issue of service provider liability is currently before the Federal Court of Appeal on judicial review of the Tariff 22 decision by the Copyright Board. The Departments may wish to consider postponing the development of a position on ISP liability until a decision on the Tariff 22 Appeal is handed down, as that case could provide important guidance.

We do not wish to comment on the government's proposal in any detail, as many of our members will be presenting their own positions in separate briefs. We do note, however, that the government proposal appears to suggest a blanket immunity for both communication to the public and reproduction for ISPs, which would go well beyond the sort of strictly defined "safe harbour" provisions of the DMCA. Such a broad immunity would destroy the incentive of ISPs to cooperate in a responsible fashion with rights holders to find and remove infringing materials on their systems.

A notice-and-take-down provision would benefit both rightsholders and ISPs. Extremely careful consideration must be given, however, to whether or to what extent this should limit the liability of an ISP.

The Consultation Paper posed a collateral question in the context of ISP liability that we would like to address. That is: "To the extent that issues surrounding the scope and application of the reproduction right are being examined in relation to Internet-based communications, are there reasons why this examination should be restricted to the question of ISP liability?"

While this question could have been made clearer, we assume that the government is asking whether it should consider the introduction of an exception for the making of temporary reproductions during the course of a technical process of making or receiving a communication.

The right of reproduction and the right of communication to the public are the key rights upon which rights holders depend to protect their works on-line. Extending the discussion of the limitation of liability for technical reproductions beyond ISPs worries the Institute, because beyond ISPs the issues are so open-ended. A broad general removal of strict liability for reproductions online could leave copyright works unprotected in private communications and in other respects. Accordingly, this examination should be restricted to ISPs.

Conclusion

The Institute is pleased to participate in this important consultative process and is anxious to do what it can to assist in the effort to implement the digital agenda in our copyright law.

We recognize that the job at hand is extremely challenging, and we invite the government to consider inter-industry discussions as a means of finding ways to close or narrow the gap in positions between users and rights holders.

All of which is respectfully submitted.

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