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A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 1)

A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 1)

We’ve been hearing lots about Canada’s new copyright reform bill (Bill C-32) and it’s already caused quite a stir. Since it is so new, very few people have had a chance outside of government to read through the new legislation. So, we here at ZeroPaid hope to help fill that gap by giving the bill a thorough going over (as is the tradition it seems) and picking out things that are of interest.

Introduction

One of the arguments government parliamentarians was that people should wait for the legislation to be tabled before criticizing it. The problem was that the last time the same government said that before tabling copyright legislation, there were huge problems with the legislation – at the time, Bill C-61. So, one could hardly blame people for remembering what happened last time, seeing the exact same kind of thing this time and ignoring the politicians argument given that there was a push for speedy passage with Bill C-61 after it was introduced.

This time around, the government seemed to finally allowed for consultation. That was one of the major criticisms of the government because the last copyright consultation was held almost a decade ago. In short, a lot has changed between the last consultation and the more recent consultation.

During the consultation, a vast majority of people said that they don’t want another Bill C-61 and that copyright laws shouldn’t be anywhere near as strict as what foreign corporate entities want it to be. It was almost like a slam dunk for consumers, Canadian businesses and creators who seem to have very similar concerns and interests for the next copyright reform legislation and a complete nightmare for foreign interests who could only argue afterward that the consultation was somehow not legitimate – not that very many believed them on that argument.

So, fast forward to today. Canadians now have a copyright reform bill. It’s so new that very few people have had the chance to go over the legislation thoroughly. Now that we do have the chance, we are more than happy to take it. Unfortunately, the legislation is very lengthy as well, so for space sake, we are dividing this article in to several parts to deal with the massive amounts of text.

We also put strict emphasis on the fact that we are not a lawyer or a legal institute. We are not trained as a lawyer and these articles should, in no way, shape or form, be considered legal advice. I am merely acting as an average Canadian citizen reading through this legislation and giving my personal opinion on it.

The Bill

Section 11 – Sole Right for Redistribution

11. (1) Section 18 of the Act is amended by adding the following after subsection (1):

(1.1) Subject to subsections (2.1) and (2.2), a sound recording maker’s copyright in the sound recording also includes the sole right to do the following acts in relation to the sound recording or any substantial part of it and to authorize any of those acts:

(a) to make it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public and to communicate it to the public by telecommunication in that way; and

(b) if it is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the sound recording.

This is rather confusing. What if the artist explicitly allows the making available of a recording? A lot of artists in Canada release their own music online for free – frequently under a Creative Commons license. If the music is redistributed for free by others when the owner gives permission to do so (which happens on file-sharing networks), is it still legal for others to redistribute that music since only the owner has the “sole right[…] to make it available to the public by telecommunication in a way that allows a member of the public to have access to it”? There’s probably other provisions already in place in the copyright act that allow for this to happen. Even if it were illegal, it’s highly unlikely that it would be enforceable since the owner wouldn’t be going after those people in the first place.

Section 12 – Paid for Retransmission?

It’s an interesting section:

19. (1) If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.

(1.1) If a sound recording has been published, the performer and maker are entitled, subject to subsections 20(1.1) and (2), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for any retransmission.

There’s always been that argument few actually object to – that creators have a right to be paid for their work. The retransmission has me confused though. If, somehow, a lawsuit were to occur and a record label sues an individual. Shouldn’t that money be able to make its way back to the artist?

Another thing that is unclear to me is how would this affect digital stores? Is the artist “transmitting” a given work to a digital store, then, is the store, in turn, “retransmitting” that work when it sells it to the public? If so, does this provision mean that the artist isn’t entitled to “paid equitable remuneration”? That is unclear to me.

Section 12 Continued – Cover Work Royalties

This section seems to possibly be of concern to those who do cover work:

(2) For the purpose of providing the remuneration mentioned in this section, a person who performs a published sound recording in public or communicates it to the public by telecommunication is liable to pay royalties

So, it sounds like if someone were to perform a cover of, say, an old song like “Sweet Child of Mine” in public or on, say, YouTube, then suddenly, they are liable to royalties. My question, then, is what sort of mechanism is in place for reasonable rates for new artists who wish to do a cover song? It’s not like the cover artists are exactly rich at the time most of the time anyway.

Section 17 – The Term of Copyright

The length of copyright has been a controversial topic and the bill does cover this as well:

23. (1) Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,

(a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; and

(b) if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 99 years after the end of the calendar year in which the performance occurs.

So it sounds like if someone does a live show and records it, all they have to do is republish the recording every 49 years and that would make for an indefinite copyright term on a given work.

Personally, I’m of the view that a copyright term of 20 years is more than enough time to try and make a profit off of a given work. Unfortunately, this overly long copyright term has continued to rob the public and the public domain of a vibrant pallet of creativity to work off of. On the upside in all of this, there’s no “death plus 75 years” in this.

The same seems to be said for general sound recordings:

(1.1) Subject to this Act, copyright in a sound recording subsists until the end of 50 years after the end of the calendar year in which the first fixation of the sound recording occurs. However, if the sound recording is published before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs.

We all wish the term was shorter, but for now, we can be grateful that the term hasn’t been extended.

Section 18 – Infringement Services

This may be what others have referred to as the BitTorrent provision:

(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider

(a) whether the person expressly or implic- itly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

(c) whether the service has significant uses other than to enable acts of copyright infringement;

(d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;

(e) any benefits the person received as a result of enabling the acts of copyright infringement; and

(f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.

It sounds a lot like the intent of the DMCA. It also sounds like what was decided in the MGM vs. Grokster case. According to this, if a service is primarily used for copyright infringement, the service was marketed as a service for copyright infringement and there is no real mechanism to stop infringement, then that service would have a hard time staying active.

If the service is little more than a search engine though, and has a complaints process that enables rights holders to take down infringing material, then that service is likely to stick around without a problem. Sites like YouTube and RapidShare operate on those principles, so really, as long as the site is just a general provider (ala “dumb pipe”), it shouldn’t face too many problems.

Section 21 – The (Misleading?) Fair Dealing Provision

21. Section 29 of the Act is replaced by the following:

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

This seems to be the first part that has caused some uproar because a later provision has reportedly canceled out those rights granted in this provision. Notably absent, in my view, is the idea of sampling which is critical for artists creating brand new works for creative purposes. I would argue that sampling should be included in this provision for artistic purposes as well. The absence of sampling could really harm artists in the end because they’ll find themselves limited to what they can and cannot create.

Conclusion of Part 1

There’s a few holes for sure in this legislation so far. After reading through the first page of the legislation, it could have been a whole lot worse, but it could be a bit better too. Still, we are reading through this legislation, trying to get a better and more vivid understanding of the legislation.

Stay tuned for part 2. Update: A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 2) is now up.

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