Jung-Kay Chiu is a lawyer at the Toronto law firm of McMillan Binch and a member of the firm’s KNOWlaw Group.

All around the world countries are grappling with the issue of whether their existing copyright legislation can cope with the challenges of the digital economy.

Canada is no exception. Industry Canada and the Department of Canadian Heritage have just released two consultation papers regarding the most pressing areas – digital issues and retransmission rights. If you want to comment on these issues, you must submit your comments by Sept. 15.

Digital copyright

The government’s first paper, the Consultation Paper on Digital Copyright, starts by asking to what extent legislative reform is needed to address the new economy – that is, to protect copyrighted works while not hindering Canadian activity on the Web and other digital platforms.

The digital environment presents unique challenges to copyright – including easy and costless reproduction and the rapid dissemination of works in digital form. The paper asks for comments on four major issues:

1. Making available:

Authors of copyrighted works have argued for increased protection for their works by seeking the legal right to determine whether, and under what circumstances, their works are ‘made available’ over networks such as the Internet. A related concern is referred to as ‘on-demand’ communications, where consumers can access and download works from a service whenever and wherever they choose.

Referring to reports from expert copyright consultants, the government has concluded that the ‘communication rights’ that already exist in our Copyright Act are sufficient to give authors a ‘making available’ right and an ‘on-demand’ communication right. So no amendments on that score.

Conversely, the Act does not give performers and sound recording makers the exclusive right to make a particular performance or recording of that performance available to the public on an on-demand basis. So the government proposes to amend the Act to give them an exclusive right to authorize the on-demand communication or performance of a sound recording. This right would cover only on-demand streaming and not other types of streaming activities.

Stakeholders have had differing views on the amount of protection required. Some advocate on-demand communication protection, as set out in the government’s proposal, while some have argued for protection extending to realtime streaming and other types of works. Others have raised concerns that having three separate exclusive rights would unduly complicate and restrict the exploitation of recorded performances on the Internet.

2. Legal protection for encryption and other technological measures:

Another issue is whether copyright legislation should provide for sanctions against persons who engage in activities related to the circumvention of measures used to thwart infringement (i.e. encryption). Also at issue is whether legislation should target the devices used to circumvent such measures. This has been done in the U.S. under the Digital Millennium Copyright Act.

However, there are two major concerns regarding this type of protection. First, this kind of technological protection extends beyond the traditional protection for the works themselves and would effectively add another layer of protection for the anti-infringement measures themselves. This may not be in keeping with the proper scope of the Act. Second, any prohibitions that target the devices themselves, are also likely to get in the way of legitimate and legal uses.

3. Legal protection of rights management information:

Our Copyright Act does not currently target those who would tamper with ‘rights management information’ – i.e. information that can be embedded in works such as sound recordings and films, in order to identify and track their movements and use.

The Act could be amended to create new types of infringement for altering rights management information and knowingly disseminating works that have had the information removed. This would track the increasing global trend in several sectors of advocating a simple, internationally adopted identifying code for copyrighted works.

4. Liability of network intermediaries:

The government’s paper identifies the need to clarify the liability of ‘network intermediaries’ (such as Internet service providers) for infringement that occurs on their networks. Many jurisdictions have moved towards a ‘notice and take-down’ system. Such a system relieves ISPs of liability unless the ISP, after receiving proper notice of infringement occurring on their networks, fails to remove the material.

The government proposes to implement a similar system to limit ISP liability coupled with a notice and take-down requirement. The proposal would also provide ISPs with a limitation of liability for any economic harm resulting from complying with notice and take-down.

It is interesting to note that the Societe du Droit de Reproduction des Auteurs, Compositeurs, et Editeurs au Canada (SODRAC) has filed with the Copyright Board tariff proposals which would require ISPs to pay royalties for all reproductions of the SODRAC repertoire. While the Copyright Board decided earlier that the content providers, and not the ISPs, are the ones who should be liable for royalty payments, this decision is currently under review by the Federal Court of Appeal.

Retransmission rights

The government’s second paper, the Consultation Paper on the Application of the Copyright Act’s Compulsory Retransmission Licence to the Internet, deals with so-called ‘retransmission rights.’ The Copyright Act provides a compulsory licence to cable companies and other broadcasting distribution undertakings. This licence permits the retransmission of the copyright works associated with the over-the-air television and radio signals without the consent of the affected rights holders.

This is an exception to an otherwise exclusive right to communicate the work to the public by telecommunication. This system alleviates the need for BDUs to seek out all the individual rights associated with over-the-air programming while providing remuneration to the rights holders.

The iCraveTV case tested the boundaries of this exception when iCraveTV broadcast numerous U.S. and Canadian over-the-air signals over the Internet without consent or payment, surrounded by iCraveTV’s own advertisements. Although this matter was eventually settled when iCraveTV agreed, among other things, to cease operations, it brought the issue of Internet retransmission rights into the spotlight.

While the Internet could be seen as just a new technical means to provide the same service as conventional BDUs, it does present some special problems. Among other things, conventional BDUs are often pinpointed to a certain territory in contrast to Internet retransmission, which can be viewed anywhere in the world. Note also that a number of technologies are being developed which could limit the availability of Internet content on a country-by-country basis.

The government is seeking comments on whether the compulsory licensing regime should apply to the Internet and how. The guiding principles on which this issue will be determined have been identified as:

* shared access by Canadians to a vibrant broadcasting system;

* equitable balance among stakeholders;

* technological neutrality and innovation;

* certainty.

The future

In addition to these digital and retransmission issues, the government will also be seeking comments on other copyright issues in the near future. These issues include:

* Balance between owners and users: The government will be considering how to ensure adequate protection and administration of copyright while balancing the need to ensure that the appropriate access to works is achieved. This issue will be addressed in both the digital and non-digital environment.

* Who’s the author of an audio-visual work?: The author of a work is the first owner of the copyright. Unfortunately, the issue of who is the author of an audio-visual work (films, television productions, etc.) has never been clearly resolved in Canada. The possibilities could include one or more of the producer, director and screenwriter. The authorship of multimedia works also needs to be addressed and clarified.

* Rights management in an online environment: The issues of how best to effect clearance of copyright and improve the collective management of rights in a digital environment need to be addressed.

* Signal rights for broadcasters: Should there be an increase in the rights and protections currently afforded by the Copyright Act to broadcasters for their signals? Should such signal rights also be granted to direct-to-cable transmission such as speciality channels and pay television?

* Lengthening the term of copyright: Generally speaking, the term of copyright in Canada is the life of the author plus 50 years. The government is considering whether to extend this to ‘life plus 70 years’ as has been done in the U.S. and European Union. Also at issue is whether, if the extension is effected, it would be granted retrospectively to authors who died before the amendment.

* And more still…: Also being considered for reform are issues concerning the authorship of photographs, database protection, the government as an owner and user of copyrighted works, technology enhanced learning, and dealing with traditional knowledge and folklore.

For a copy of the consultation papers and information regarding the submission of comments, please refer to the Industry Canada website at: www.strategis.ic.gc.ca/SSG/rp01100e.html.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.) *