New law accepts everyday activities

For the London Free Press – November 26, 2012

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You’re no longer breaking the law when you use your PVR to record your favourite TV show for later viewing.

Teachers are no longer infringing copyright when they print publicly available materials from the Internet to share with students.

Comedians are no longer violating the Copyright Act when they create a parody of a topical song or movie.

The much-anticipated, long-awaited Bill C-11 — Copyright Modernization Act — has finally become law in Canada. Though some aspects of the new act are controversial, the changes are for the most part welcome and long overdue.

The new act addresses everyday digital activities and legitimizes many of them under our copyright laws. The legislation aims to strike a balance between the interests of the creators of copyright and the rights of users.

Copyright protection is vital to the promotion of innovation. But at the same time, there are other interests best served by allowing users access to copyrighted material.

Chief among the important changes to Canada’s copyright regime is the expanded definition of “fair dealing.” Previously, the exception for “fair dealing” was limited to research, private study, news reporting, criticism and review. Now, fair dealing also includes reproduction of copyrighted materials for education, parody and satire purposes.

The new law also distinguishes between commercial and non-commercial copyright infringement. Statutory damages for non-commercial infringement are now smaller than for commercial infringement — capped at $20,000 for each infringed work for commercial purposes and $5,000 for all infringed works for non-­commercial purposes.

Of course copyright owners can still sue for actual damages that they can prove, but in many non-commercial situations, it may be hard to show actual damages exceeding the purchase price of the work.

Some of the controversy the bill generated has been the result of the digital lock provisions. It is illegal to break digital locks in most situations. A digital lock is put on content by the provider to prevent copying. It might, for example, stop you from copying a DVD or CD. That is despite the fact that the law gives consumers the explicit right to do things such as format shift a CD to a memory stick to play it on another device owned by the consumer. The digital lock rule essentially allows the publisher to take away some rights that the legislation grants.

All of the consumer-oriented provisions have come into force. These include the expansion of the fair dealing concept, the limit to statutory damages for non-commercial infringement and the exception for publicly available electronic materials used by educational institutions in non-commercial settings.

Provisions still to come include rules requiring Internet service provider to forward notices to subscribers accused of violating copyright. The ISP also has to maintain a detailed record of the notification in case court proceedings follow.

Harper Government should consider NDP tech policies

That’s the title of my Slaw post for today.  It reads as follows.

For the record, I don’t support the NDP, and their fiscal policies are plain scary. But that doesn’t mean that their viewpoints on everything ought to be ignored. The NDP tech policies on issues such as net neutrality, usage based billing, and copyright are in many ways more compelling than the Conservative policies. Now that the Conservatives have a majority and don’t have to fight for their existence every day – lets hope they take a step back, take a deep breath, and take a fresh approach to tech issues.

The prosperous future of Canada is to a great extent dependant on the use of technology, the internet and wireless access, and all things digital. That is true for consumers, for business, and for innovators. It is important to have policies that foster that. That point will no doubt be made repeatedly at the Canada 3.0 Conference taking place today and tomorrow.

On the proposed lawful access bill for example. Either drop it all together, or take another serious look at it. Mr. Harper has said that the rights of ordinary citizens should be more valued than the rights of criminals. So recognize that individuals have privacy rights that ought to trump the ability for law enforcement to go on random warrant-less fishing expeditions into our digital lives. If that isn’t a good enough reason, recent data breaches should teach us that the easiest way to prevent a data breach is not to have the data in the first place. Don’t tempt fate by requiring service providers to retain information on customers that is not needed to provide their services. As well, requirements to retain data are in effect an additional tax on the tech sector.

Copyright reform has been a hot topic for years, with many controversial bills being drafted but never passed. One of the issues that concern many of us are provisions that support digital locks. Those provisions do more harm than good, and in essence turn copyright policymaking over to rights holders. There is also the appearance – reinforced by recent wikileaks documents – that too much consideration is being given to the pressures of foreign entertainment lobbies and governments. The NDP policy on copyright merits consideration when drafting the next bill, as it seems to take a more balanced made in Canada consumer friendly approach.

From spam to copyright, lots of new laws on the way

For the London Free Press – December 13, 2010

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Proposed legislation could have major implications for businesses, consumers

Development and innovation of technology inevitably breeds new laws to regulate that technology. For lawyers practising Information Technology law, there is a considerable amount of potential new law to digest.

For example, Bill C-28, the Fighting Internet and Wireless Spam Act, brings in several anti-spam measures. While this is welcome by most people, the language may take in things we may not consider to be spam and affect how typical businesses communicate. Since the penalties are significant, we need to take a close look at this act before it takes effect to understand what it will mean for a typical business or organization.

Bill C-29 would make several changes to the Personal Information Protection and Electronic Documents Act. Most of these were expected – and welcome – because they address issues arising from the current law.

But there are new parts that could use clarification. Language that tries to clarify what constitutes “lawful authority” to release information to law enforcement when requested doesn’t make clear what proof or threshold of proof is required. It also contains language requiring that the privacy commissioner and affected individuals be notified of breaches in some circumstances. The language has threshold tests, which on the surface are not as clear as they might be. If this language stays, it may take a decision by the privacy commissioner and/or a court to clarify the threshold.

Bill C-32, the Copyright Modernization Act, is the latest of several attempts to amend the Copyright Act. Controversial elements include digital lock provisions that would let publishers trump user rights. Much has been written about this, including a book entitled From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda, written by several copyright experts.

Bill C-51, which would amend the Criminal Code, Competition Act and Mutual Legal Assistance in Criminal Matters Act a.k.a. Investigative Powers for the 21st Century Act, is the latest effort to give law enforcement more access to electronic communications.

But what proponents call “lawful access” bills, critics deride as “awful access” bills. They question whether making things easier for law enforcement is worth the significant erosion in privacy and extra costs to Internet service providers.

These bills may have far-reaching practical implications, not only for many businesses and organizations, but also for consumers.

Plethora of Pending IT Legislation

That’s the title of my Slaw post for today.  It reads as follows.

Those who practice in the IT area have a lot of potential new law to digest.  The Federal government has several bills in various stages that will affect many businesses and organizations, and all of us as consumers.  These bills have been mentioned on Slaw, but I thought it was worthwhile listing them all in one place. 

Bill C-28    Fighting Internet and Wireless Spam Act.  

This bill brings in several anti-spam measures.  While this is welcome by most people, the language has the possibility to affect how typical businesses communicate.  Things that we may not consider to be spam might get caught by the act.  Since the penalties are significant, we will have to take a close look at this before it is in force to understand what it means for a typical business or organization. 

Bill C-29     An Act to amend the Personal Information Protection and Electronic Documents Act

This would make several amendments to PIPEDA.  Most of the amendments were expected, and are welcome as they address issues that have arisen from the current legislation.  There are a couple of new parts that could use some clarity, though.  Language that attempts to clarify what “lawful authority” is that allows one to release information to law enforcement doesn’t really seem to clarify what the threshold of proof is, or what to ask for.  It also contains language that requires notification of breaches in certain circumstances to both the privacy commissioner and the affected individuals.  The language has threshold tests – which on the surface are not as clear as they might be.   If this language stays, it may take a privacy commissioner decision and/or court decision to clarify the threshold.  The best source for more information is David Fraser’s blog

Bill C-32     Copyright Modernization Act.

This is the latest of several attempts over the years to amend the Copyright Act.  Controversial elements include digital lock provisions that will allow publishers to trump user rights.  There has been a lot written about this, including a book entitled From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda written by several copyright experts. The best source for more information about the bill is Michael Geist’s blog.

Bill C-51     An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act aka Investigative Powers for the 21st Century Act. 

There also appears to be at least one companion bill, C-52.  This is the latest incarnation of what has been dubbed a “lawful access” bill.   The bill essentially tries to give law enforcement more access to electronic communications.    Critics refer to the bills as “awful access”, and point to the erosion of privacy and the costs ISP’s will need to spend.  They also question the practical effectiveness of the measures.   This bill is hot off the press, and I have not had time to look at it – but in general I fall into the “awful access” camp.  Expect more commentary on this from both Michael and David.

Copyright bill expected today

That’s the title of my Slaw post for today.   It reads as follows.

The new copyright bill is expected today.  There has been much anticipation about what it might contain.  That is understandable given that several failed and controversial attempts have been made to pass a reform bill over the last few years.  And that there were extensive hearings around the prior bill last summer that attracted a significant amount of commentary.  And that digital media is considered by many (e.g. the Canada 3.0 initiative) to be a crucial part of the economic future of Canada.

The anti-spam and privacy bills introduced last week are important bills that have effect on business and individuals alike. But the copyright bill fundamentally affects how every Canadian consumes media. 

Roughly speaking, copyright interests line up in two camps.

First, the entertainment industry, which wants tight controls on copying, including things like digital locks and notice and takedown provisions.

Second, consumers who want less control by media providers, and broader fair dealing rights.

It will be interesting to see what the bill looks like, what the reactions will be, and what changes may result from that reaction.  Fundamentally it is about balancing the various interests to give the right amount of protection to creators, while at the same time giving users reasonable rights to do the things we are accustomed to in this century, such as time shifting, format shifting, and perhaps downloading.  Clarity is important, as is language that doesn’t antiquate itself by tying it to specific technologies.

My message today is that this bill is important, and worthy of close, thoughtful scrutiny and discussion.

Ethics of downloading something you’ve already paid for – Techdirt

Techdirt has a post that’s worth a read that talks about a debate sparked by the NY Times and Computerworld about the ethics of downloading something you have already paid for.  Its an issue worth considering, especially in light of an expected new copyright reform bill in Canada.   It ties into issues about format shifting and whether copying is theft when it doesn’t deprive the owner of what they have.

US government study: Piracy statistics unreliable

That’s the title of my Slaw post for today.  It reads as follows.

We have seen much pressure over the years for governments to enact tougher laws for piracy and counterfeiting – often based on statistics that lead to conclusions that billions of dollars are being lost because of it.   

It leads to questionable things like three strikes laws, the Digital Economy Bill, and the ACTA treaty discussions.  Many people have questioned the statistics, and the conclusions based on them.

The US government accountability office (GAO) just released a report that concludes that while the problems are real, “Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies”.  Also that assumptions are used to compensate for the lack of data.

For more commentary on this issue, see the reactions of Mike Masnick and Michael Geist.

Three-strikes proposal divides

For the London Free Press – November 23. 2009

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INFRINGEMENT: It addresses concerns of creators and publishers of movies and music

The “three-strikes law” is a controversial proposal to address download infringement concerns of creators and publishers of movies and music.

The concept is that if someone alleges an Internet user is downloading copyrighted material, they can advise their Internet Service Provider (ISP). The ISP then tells the customer to cease this illegal activity. If this happens three times, the ISP must turn off the customer’s Internet access.

France recently approved such a plan, but not without a struggle. An initial version was ruled unconstitutional by the French courts. An amended version was approved this fall which calls on a judge, not a government actor, to sign off on account suspensions.

France is now viewed by supporters as a pioneer against piracy, leading the way by implementing this legislation.

The same proposal in Britain met with public backlash. Public consensus is these measures are too drastic and draconian. The measures will generate a bureaucratic nightmare while having little impact on the overall prevalence of file-sharing.

Other critics argue the increasing prominence of the Internet in everyday life makes suspending that privilege a limit on individual freedom of expression.

Even holders of copyrighted material are split on the subject. Artists, such as the music group Radiohead, argue that any effort to criminalize file-sharing is in vain. They believe artists would be better to embrace the potential of file sharing to share their work with a larger audience. This will allow them the opportunity to generate revenues through concerts and merchandising, and even the sale of their music.

Other artists are of an opposite view, believing that file-sharing restricts the ability of young artists to make a living, lessening the likelihood of success for emerging artists.

The three-strikes law is misguided, even if you believe such activity should be controlled.

Whether someone has violated copyright is often not a black-or-white issue. Copyright law is complex, and knowing in any given instance whether an infringement happened isn’t easy.

To implement these policies on a mass basis, in a similar manner to handing out parking tickets, ignores this complexity. And the penalty is more than paying a few dollars in parking fines.

The proposal is also open to abuse as sanctions imposed at the request of an alleged victim can be taken advantage of.

There are numerous examples of questionable takedown notices under the existing U.S. DMCA rules. In fact, the Electronic Frontier Foundation has created a Takedown Hall of Shame, which lists “bogus copyright and trademark complaints” which “have threatened all kinds of creative expression on the Internet.”

This points up another problem with the concept: violations need only be alleged, not proven. An individual may be accused and given a strike by their ISP with no proof of misconduct. Guilty till proven innocent is not something we should condone.

The issue of digital piracy will continue to be a contentious topic. The three strikes proposal is not a palatable solution.

Copyright reform survey results

That’s the title of my Slaw post for today. It reads as follows.

Last week I posed a survey on copyright reform. Here are the results.


The result is overwhelming.

So in anticipation of comments pointing out the following:

– it clearly was not scientifically accurate

– it is quite possible that the question was biased

– it may reflect the large proportion of users to creators and thus shows the tyranny of the majority rather than a principled view.