Monniblog

Modernizing Copyright In Canada by Monica Miller

With technological innovation comes greater access to material via the Internet, including copyright material, which is then liberally shared and distributed. Certain sections of the Canada Copyright Act allow academic use of copyrighted materials, but there have not been any major changes made to the act since 1997, despite the rapid changes in technology. Since the early 2000s, many groups have been lobbying for the Canadian government to make updates to the Canadian Copyright Act for the digital age.

Canada as a British Colony

To better understand the copyright challenges facing us today, it is important to know what the Canadian Copyright Act currently covers. As a former British Colony, Canada was subject to imperial copyright laws and legislation. Even after confederation, the Imperial Copyright Act regulated copyright within Canada until 1911. The Imperial Copyright Act restricted the import of cheap US reprints into Britain and her colonies. Unfortunately for Canadian booksellers, acquiring products from America would have been more cost-effective than shipping them from the UK. The Foreign Reprints Act was signed in 1847 permitting imports into Canada but with a 12.5 percent duty.

In the late 1800s, European countries approved an international system of copyrights, the British and Americans signed an agreement to respect each other’s copyrights, and Canada attempted a number of times to pass its own copyright laws. In 1911, the United Kingdom passed a new Copyright Act that finally allowed Canada the rights to create and pass its own copyright laws.

The Canadian Copyright Act

Canada’s first copyright act was passed in 1921 but did not come into affect until 1924 and was very closely modeled on Britain’s 1911 copyright act. As defined by the Canadian government, “Canadian copyright laws and regulations are designed to ensure that the rights of creators and other rights-holders are recognized and protected; and to promote access to copyrighted works.” The Copyright Act has a special condition called ‘fair dealing’ which is particularly useful to students. Fair dealing allows an individual to make use of copyrighted material for “the purposes of research, private study, criticism, review or news reporting” as long as the original source is credited.

Between 1924 and 1988, there were only minor changes made to Canada’s Copyright Act, despite several large-scale studies initiated by the federal government. As a result of the 1985 sub-committee for parliament, Bill C-60 amended the original Copyright Act of 1924. While Bill C-60 addressed issues relating to copyright holders, it did not address user-rights, which the Government assured Canadians would be part of phase two. Between 1985 and 1997, more minor changes were made to the Canadian Copyright Act including: the 1989 Canada-US Free Trade Agreement; Bill C-88 regarding musical work in 1993; NAFTA conditions in 1994; and in 1996 the World Trade Organization Agreement Implementation Act extended copyright to all WTO countries.

In 1997, phase two of the copyright reform was completed with Bill C-32. One of the significant changes directly affected educational institutions—they were granted copyright exceptions and provisions similar to libraries and museums. When these limitations were introduced, critics commented that they cannot fully capture the variety of contemporary education systems and would require a heavy dose of common sense to work effectively. Since 1997, there have been more minor changes and additions, but the bulk of parliamentary concern has been with the Copyright Modernization Act beginning in 2005.

Changes in the Digital Age

The Copyright Modernization Act has gone through a lot of stages in the past few years—including Bills C-60 and C-61 dying when a General Election was called. The current Bill C-11 aims to complete the modernization in the digital age including incorporating the World Intellectual Property Organization (WIPO) Internet treaties that were signed in 1997. As the National Post reported this past October, “The Conservatives’ first attempt at copyright reform in 2008 received significant pushback because it favoured the rights of content creators and distributors over those of consumers. As a result, the government held a consultation process, receiving submissions and soliciting feedback from Canadians during the summer of 2009.”

As Laura Murray and Samuel Trosow explain in their book, Canadian Copyright: A Citizen’s Guide, teachers and students currently have three means by which to make use of copyrighted material without infringing on the owner’s rights. These include the educational exceptions in the Copyright Act introduced in 1997, fair dealing policies, and collective licensing through an agreement with Access Copyright.

Enter Bill C-11

In late September 2011, the Conservatives, now with a majority government, tabled a new version of the copyright modernization document entitled Bill C-11.

Law professor Michael Geist said, “if you look at some of those really tough issues, like fair dealing, ISP liability, statutory damages, I think there’s a genuine attempt to strike a balance, and I think the bill is quite good.” However, as the National Post articulates, the second part of Bill C-11 “fails to address the primary issue: The blanket ban on breaking digital locks.” Geist holds the Canada Research Chair in internet and e-commerce law at the University of Ottawa and critically called the digital lock legislation the “Reduce U.S. Pressure Copyright Act” whereby American pressure can shape Canadian laws when the US indicates that they don’t want to sour trade and border relations with Canada, or elevate us on their piracy watch list. Geist believes that this is the main reason that a more balanced approach has not been taken to digital rights management, despite the USA loosening their own restrictions for certain circumstances.

In October 2011, there were two days of debate on Bill C-11 addressing concerns of digital locks, hyperlinking, and fair dealing. The Supreme Court made several rulings affecting the legislation, and the process will be on going until the bill is passed. Most experts in Canada thought it would have been passed before year-end, but others conjecture that it may be held up until after America’s presidential elections.

While this article delves briefly into the differing viewpoints on Bill C-11 and the Copyright Modernization Act, there are so many differing viewpoints. Local scholar and SFU Communications alumni Meera Nair blogs about copyright in Canada often focusing on education. Recently this has included the separate but related conflict between several post-secondary institutes and Access Copyright regarding fees, digital rights management, and availability. Michael Geist is one of the most vocal scholars on copyright issues in Canada and has written numerous articles, op-ed pieces, and has edited multiple books on copyright issues in Canada. Both Laura Murray and Samuel Trosow contributed articles to Geist’s collection, In the Pulic Interest: The Future of Canadian Copyright Law. The Canadian government also has a website called Balanced Copyright to help educate the public on the Copyright Modernization Act.