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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.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at [email protected].

Drew Wilson
Drew Wilson is perhaps one of the more well-known file-sharing and technology news writers around. A journalist in the field since 2005, his work has had semi-regular appearances on social news websites and even occasional appearances on major news outlets as well. Drew founded freezenet.ca and still contributes to ZeroPaid. Twitter | Google Plus
Mens Rea
Mens Rea

I’m confused… with regards to the new incarnation of bill C-32. So if it’ll be illegal to break TPR’s so as to be able to upload on a P2P file sharing site – how will that stop people from downloading things posted by those in other countries [where TPR's are not an issue]? Sure, the initial single uploader might have broken the TPR’s [whether that's even an issue in their country] but those downloading in Canada had nothing to do with that initial part of the process. Remember – sharing is caring. “Actus non facit reum nisi mens sit rea”.

Let's turn Canada into a 3rd world nation!
Let's turn Canada into a 3rd world nation!

This is insanity. How corrupt is our government to allow this to even be considered? The world is worried about being green and at every turn someone thinks of a new way to create even more waste.Why is my government allowing greedy corporations to rob us and generate more garbage when the world is trying to reduce waste? Canada has no middle class left. We are either poor or we are rich, there is no middle class any more and we will be forced even poorer or have no cheap sources of entertainment left. When compact discs were first introduced they were better quality made and the majority of them had a protective teflon type coating to reduce scratches. Now we have poorly made discs that scratch very easily. We won't be able to use tools to make a copy to protect our investment. Instead we will have to buy a new copy of a movie or music disc every time they get scratched because of poorly made players or from kids or any number of things that can damage the disc. And instead of reducing waste we fill our landfill sites needlessly with more garbage from things we have paid for again and again because greedy politicians and corporations don't care about anything but selling their products and lining their pockets. The crooked politicians try to sell you that it is a good law to protect copyrights when they know full well it won't or don't care because they are getting kickbacks to turn a blind on yet another nickel and dime scheme to further erode the middle class and to keep any source of entermainment unreachable to the poorer.I can record my TV shows or movies from my cable box onto a VCR and watch them later. What difference is there between that and watching TV shows online and recording it for later? Even more so what difference is there to sharing it? It was broadcast publicly and anyone could have watched it. Sharing TV shows would only increase the marketing potential for any show.I can record music I hear on the radio onto cassette tapes and make my own collection of music  but I cannot record my music from online radio to my computer?Please, someone for the love of god wake up the politicians that the working class in Canada cannot afford to keep getting gouged at every creative scheme greedy corporations can think of to squeeze more money from us.The only people that will benefit from this new copyright law are the people making counterfeit music and movie discs along with the greedy corporations forcing people to do without or fill our landfill sites needlessly.

John
John

Our capital is Ottawa, not Washington.

kevin
kevin

heater as much as i respect your point of view we have to recognize the fact that newspapers or journals or magazines who hire you are paying for your talent .... so if the law forces them to include intelectual property ownership via remuneration it would still be like the past but now with a legal clause making it 100% legal for those employers to have legal rights over those photo's ...but since they are looking at giving photographers more rights .. it is up to photographers to deal more with their talent ... its goods and bads to help make these new ages more pleasant for every artist in canada ....

Heather
Heather

As a photographer, I am hopeful that the amendments that affect me most will pass. Currently, photographers are the only creators of works who don't own their creations. Why should someone who commissions me own the work that my talent, my eye, my training has afforded me to make? Simply because they paid me? They paid me for my time, not to rape me of my livelihood. Canada is the only industrialized nation that doesn't afford photographers this right, and it is about time Canada stepped up and showed respect to those who create art photographically in the same way they afford those rights to authors and other creators.

Andrei Mincov
Andrei Mincov

In my new article, "Modernization of the Inconceivable", at http://mincov.com/articles/index.php/fullarticle/modernization_of_the_inconceivable/ (http://bit.ly/8YQZ3r), I explain why modernization of the copyright law based on compromise and concessions, without a good understanding of the underlying principles of copyright protection, is doomed to fail.Copyright laws exist either for the protection of the creator, or for the benefit of the public. There is no middle ground. As long as we keep entrusting the government (any government) to find the right "balance" between the two, we are destined to keep on making up exclusions from limitations on exceptions from the rights – without even stopping for a second to question why we are doing this.

jaja
jaja

is this already passed i heard about this, i think tis good but also bad (like my stargate shows i watch i can't download a pvr version from a friend cause i woudl either a get fined 100-5 or 10 grand or b off to jail (i don't think so) this now seems to be more nwo. also we pay them and they telling us what we can and can not do, what is this world coming to.. this isnt a free country or freedom anymore.. i guess our grandfathers are looking down at us in shame now

D.AN
D.AN

I get dejavu through reading those mentioned sections.



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