Bill C-60, An Act to Amend the Copyright Act, introduced in the House of Commons in June 2005, is all excruciating legalese. Interpretation by copyright law experts is required. But lots of us who create and use copyright materials in Canada will be living with Bill C-60 as Parliament considers it and with the consequences if it becomes law. We should consider the basics about it.
Q. What is C-60?
A. The official summary says it “amends the Copyright Act to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to clarify the liability of network service providers, to facilitate technology-enhanced learning and interlibrary loans, and to update certain other provisions of the Act.” We’ll take those promises in order.
C-60 is not the whole ball game in copyright reform. The Government of Canada has proposed a three-step program of copyright reform. C-60 is the first step. Many of the copyright issues you care about may be subjects for a later stage of reform.
Q. What is the WIPO part all about?
A. WIPO is the World Intellectual Property Organization, a United Nations agency, more or less a successor to the 1893 Berne Convention on copyright. The WIPO treaties mentioned were adopted in 1996. Canada voted to approve the treaties but cannot formally ratify them until we bring our own laws into conformity with our treaty commitments.
To conform to our WIPO treaty commitments, Canada must give photographers the same copyright in their works that other creators have. Canada must recognize (for the first time) that performers have rights to their performance, including its use if it is preserved on, for instance, film. Canada must also make clear that the copyright includes the “making-available” right. Bill C-60 makes these and other changes to the Canadian Copyright Act.
That right of “making available” confirms that only a copyright holder can authorize making a recorded work available in any medium. To put a copy of a work up on a website or a file-sharing program or a digital network is to make it available. Given the ease of copying and reproducing digital files, it is vital to clarify that making a file available in digital form is not a neutral act but an active use of copyright.
Q. So C-60 is good for photographers, performers, and recording artists?
A. Musicians, performers, photographers, and their organizations say it is. In the larger sense, Canada is not likely to maintain a copyright regime at odds with the rest of the world, so WIPO ratification makes sense.
Q. What does C-60 say about “the liability of network service providers”?
A. A network service provider is what connects you to the internet: Sympatico, Rogers, Telus, Videotron, Cogeco. If copyright material is distributed through a network service provider, is the NSP liable for copyright infringement?
C-60 says no, broadly not. It’s as if NSPs, like telephone lines but unlike newspapers, are conduits of information not responsible for the contents. In some countries, a system called “notice and takedown” requires that if a copyright holder informs an NSP that it is carrying unlicensed copyright material, the NSP must take it down, make it unavailable. Many copyright holders lobbied for “notice and takedown” in Canadian law, but the government has opted for the view that “notice and takedown,” which implies no proven finding of infringement is required, is too extreme.
C-60 opts instead for “notice and notice.” When a copyright holder informs an NSP that it is carrying infringing material, the NSP must notify the alleged copyright infringer and must also keep records of the availability of the allegedly infringing material and who is making it available. C-60 therefore empowers a copyright holder to take action against the infringing parties, who cannot hide anonymously behind their NSP. As long as the NSP does these things, no one can go after the NSP for its part in the infringement.
Q. What does C-60 say about “technology-enhanced learning”?
A. This (Section 18) is probably the most complicated part of a complicated bill. Broadly, schools and universities want to be able to use learning materials (books, texts, excerpts, magazine articles, images, web-based material, whatever) in digital form as in hard-copy form. They need course materials to be available online for “remote learning,” which could mean the enrolled student is on another continent but also includes students in the back of the classroom getting material directly onto their laptop.
Educational institutions or their students pay for books. Through collective licensing arrangements, they pay for photocopying and other kinds of reproductions, too. So what about material they acquire digitally or scan into digital form and distribute electronically?
C-60 essentially says, digital access is good, but so is payment for copyright, and the way to provide both access and payment in the digital realm is through collective licensing. C-60 proposes that, in the same way that licensing collectives provide institutions with licences to make photocopies legally in exchange for negotiated fees, they will also be expected to licence digital copying and transmission, also in exchange for negotiated fees.
If collectives can or will not offer licenses for certain materials, C-60 sets out rules for how institutions can access and distribute them. In those situations, C-60 sets the fees and limits the ability of rightsholders to fight copyright infringement outside of the collective system. With C-60, Canada seems to be saying collective licensing is the only way to provide both access and payment in the digital realm. It is providing carrots and sticks to make both users and rightsholders accept digital licensing. Rightsholders have to provide access, users have to secure licenses (or pay an equivalent).
Q. Is this part of C-60 good for copyright?
A. In principle it probably is. Canada’s educational bureaucrats have been lobbying hard for access without payment. They want educational institutions to be authorized to take and use copyright material without licences or payments and without regard for the copyright status of the works they use. The educational system’s demands for exemption from copyright are supposed to be addressed in the next stage of copyright law reform. But this part of C-60 suggests that for educational institutions as for everyone else, Canada believes in access and payment, not access/no payment. That points toward a copyright law rooted in principles of copyright, not in special privileges and special exemptions for favoured lobbies.
Some large publishers have been complaining that these clauses coerce them into collective licensing whether they like it or not. It is going to take a while to test and implement widespread digital licensing. But the government is probably right that collective licensing is the practical way to provide both access and payment.
Q. What’s the issue with interlibrary loans?
A. The interlibrary loan system permits a library that doesn’t have a book needed by a patron to borrow the book temporarily from another library. No problem. But what if the library, instead of mailing a copy of that work, says it will just scan the work and email it to the library user? Sending someone a digital copy of a work is not the same as lending out one hard copy. We could end up in a world with just one copy of a work in just one library somewhere, delivered to everyone in the world as a digital “loan.”
The Copyright Act already tolerates almost unlimited unlicensed paper copying by libraries. Librarians have always been more committed to access than to creators’ rights, and since a library’s authority to copy comes from the legislation, not from licensing, there is no process for negotiation or monitoring. Now Bill C-60, Section 19, will also authorize digital copying by libraries. The amendment merely says that libraries that provide digital copies should try to prevent further dissemination of the copies or use of them for more than seven days. No enforcement mechanism is suggested; indeed enforcement seems quite impossible. It is hard to see how digital distributions by libraries that go far beyond C-60′s recommendations will be deterred.
Q. What might be my quick cocktail-party line on C-60?
A. How about: WIPO ratification is inevitable and mostly good; copyright for performers and photographers is fair; the making-available right is essential to the digital future. C-60 delivers on these. What remains vital in all copyright legislation is a principled approach to copyright based on licensing, not sinking into special privileges and special exemptions cast in legislative stone for the loudest lobby groups. C-60 mostly fits that too — except for the library provisions.
Q. Who’s against C-60?
A. The people and groups who want more and more exemptions seem to be rejecting C-60 because it doesn’t give them the exemptions they want right now. The education lobby seems to be unwilling to wait for the question of educational exemptions to be taken up in the next stage of legislation. They seem to be rejecting B-60 because it does not give them what they want. They may have concluded that since C-60 tends to favour “access and licensing” over the “access without licensing” that they want, its passage will likely lead to more of the same approach in the next stages. All the more reason for creators to favour C-60 in general.
Q. What’s the schedule for Bill C-60?
A. C-60 is to be considered by a House of Commons committee in the fall of 2005. If it can be passed (amended or not) by the House and the Senate before the federal election promised for February 2006 at the latest, it can be proclaimed into law. Government sources swear that is possible. But it’s a minority government. The Liberals will not get it through alone. If C-60 is not passed, it dies and the process starts again with a new parliament in 2006.
Initially the government was committed to having C-60 passed before an election. In October, however, it decided to delay the committee hearings until some research studies were completed and submitted. Hearings are still scheduled, but passage before the election is almost impossible. With an election, C-60 will die and a new bill will have to be introduced.
Bill C-60 is available at www.parl.gc.ca/PDF/38/1/parlbus/chambus/house/bills/government/C-60_1.PDF. While The Copyright Act itself is also available online, I like to use Lesley Ellen Harris’ Canadian Copyright Law, 3rd edition which has a copy of the whole text (Appendix 1), as well as much useful commentary.