Photo credits: Amza Andrei (unspash.com)

Written by Tiffany Wang, IPilogue Contributing Writer and J.D. candidate at Osgoode Hall Law School (Class of 2023).

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Big Tech companies like Facebook and Google collect and store users’ personal and potentially sensitive information. Canadians are generally compelled to accept this practice; however, the ongoing COVID-19 pandemic has sparked new over surveillance practices, like tracking and recording individuals. In an , Samuel Woodhams, a digital rights activist, indicates that 25 percent of the 53 contact-tracing apps used globally lack privacy policies. Without privacy protection, the risks of personal data leakage are too high to ignore.

On November 17, 2020, the federal government introduced Bill C-11, the (DCIA). It proposes three major changes:

1. Repeal Part 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA) governing personal information and privacy;
2. Enact the Consumer Privacy Protection Act (CPPA); and
3. Introduce a Personal Information and Data Protection Tribunal (Tribunal) governed by PIPEDA.

These recommendations would strengthen the impact of Canada’s privacy laws on the private sector. They underscore the federal government’s attempt to balance individuals’ fundamental right to privacy and the crucial function of information in advancing business, innovation, and commerce.

Consumer data is subject to heightened protection pursuant to Bill C-11. If enacted, the DCIA would, barring consumer consent, shield sensitive medical, financial, and social information and data from private entities. In effect, individuals would have increased autonomy over their online identity, by allowing them to meaningfully consent to the sharing of their data.

The DCIA’s new transparency requirements also address algorithmic transparency concerns. For example, businesses must be transparent about how they deploy . These requirements will entitle consumers to request that businesses explain how they process and use personal information. In turn, businesses must comply with the DCIA to clarify how their algorithmic systems generate and analyze consumer data. Bill C-11 and will implicate a larger number of computer systems than those currently captured by PIPEDA.

It is important that the federal government balances privacy concerns with advancing Canada’s innovation and technology sector. Bill C-11 notes Canada’s ambition to keep pace with the European Union and the United States in simplifying privacy and e-protection laws for commerce and businesses. For example, Bill C-11 adds a new “business activities” exception for requiring consent. Businesses will not be required to obtain consumer consent for every transaction in the process of delivering products or services.

Additionally, Bill C-11 promotes the sharing of data between private and public spheres to leverage data pools. Under Bill C-11, the federal government possesses increased oversight and enforcement powers over private parties. If the CPPA were successfully implemented, the Privacy Commissioner will reside above business entities, enabling the Government to stop organizations from collecting certain data. In addition, the Privacy Commissioner may, through the Tribunal, impose administrative fines up to three percent of a business entity’s global revenue, or $10 million for breaches.

Bill C-11 is attractive from both consumer and business standpoints. Not only do its recommendations strengthen individual autonomy and information transparency, but they also simplify business transactions by making it easier to obtain consent and foster increased dialogue between governmental agencies and private companies in sharing de-identified data.

Perhaps there is a silver lining to the pandemic to pave way for more robust privacy laws. As Canadian technology and commercial innovation increasingly depend upon data collection, it is prudent to bolster privacy.

The post An Antidote to Privacy Infringements: Will Bill C-11 Unite Consumers and Big Tech? appeared first on IPOsgoode.

Canada’s Increased Reliance on Technology in the Pandemic

The necessity for social distancing during the pandemic has made Canadians more reliant on technology for social, occupational, and healthcare purposes. Instead of meeting in-person, friends and family plan virtual meetups through videoconferencing services and other online platforms. Technology is regularly used by employees working-from-home to fulfill their responsibilities without entering the workplace. It is also useful for students, who can pursue e-learning from the safety of their homes. Our healthcare framework has even shifted from visiting the doctor’s office for medical concerns to using telemedicine platforms to communicate with healthcare practitioners.

Although we have upgraded our lifestyle to incorporate technology in everyday interactions, Canada’s privacy laws have not been updated to fit our data-driven society. Prior to the pandemic, the (OPC) issued several statements urging the federal government to reform its privacy legislation to combat risks associated with our antiquated legal framework. However, little has been done in response to these statements. With Canadians growing more digitally dependent during the pandemic, the gaps in Canada’s privacy infrastructure are becoming more prominent.Ìę

The Risks Associated with Antiquated Laws

In the OPC’s recent to Parliament on the , it highlights key legal gaps associated with the use of commercial platform services. Under our current legislation, commercial enterprises may be able to access sensitive information communicated through online platforms. For example, e-learning platforms can capture information regarding students’ learning disabilities and other behavioural issues. Commercial platforms involved in telemedicine services can also access doctor-patient confidential communication. The OPC argues that these gaps, along with other issues, must be remedied by new legislation that guarantees safety when using essential systems.

The OPC advocates for federal legislative reform to maximize the benefits of technology and minimize associated privacy risks. Among the potential areas of reform, the OPC asks the federal government to define privacy as a human right and use this as a starting point to guide new legislation for data-driven technologies. It also requests the federal government to consider empowering the OPC with enforcement mechanisms to make binding orders and impose administrative penalties for non-compliance with the law.

A Sign of Progress

With the recent tabling of , the federal government may have finally provided a meaningful response to the OPC’s call for legislative reform. Bill C-11 presents the first major step in reforming Canada’s privacy regime and will introduce two new statutes: theÌęConsumer Privacy Protection ActÌęand theÌęPersonal Information and Data Protection Tribunal Act. These statutes will replace the provisions of PIPEDA that deal with Canadian private sector privacy laws. Among the proposed changes included in Bill C-11, the OPC will be given the ability to make binding orders and recommend administrative monetary penalties of up to 5% of global revenue for companies that do not comply with the orders.

In the OPC’s on November 19, 2020, it noted that Bill C-11 features several improvements to Canada’s current privacy legislation. It praised such advancements like the proposed restructuring of PIPEDA and the addition of order-making powers to the OPC’s list of law enforcement tools. However, it also raised several questions regarding the Bill’s effectiveness in protecting privacy in Canada’s evolving digital society. The OPC plans to further assess the adequacy of Bill C-11 before presenting its views to the parliamentary committee that will study the Bill.

Although it may not be on the OPC’s preferred timeline, the gears of legislative reform are finally turning for Canada’s privacy law regime.

Written by Imtiaz Karamat, Osgoode Alumni and Student-at-Law at Deeth Williams Wall LLP.

The post Reforming Canada’s Privacy Legislation: Does it Take a Pandemic? appeared first on IPOsgoode.

This chapter considers the shape Parliament has given to the UGC exception and examines its place within the scheme of the Copyright Act, particularly in light of recent Supreme Court of Canada jurisprudence. The chapter begins with a discussion of the definition of UGC, followed by an analysis of the statutory exception. It next considers the relationship between the UGC exception and the fair dealing exception. Although opponents Ìęmight characterize both the UGC exception and expanded fair Ìędealing as unjustifiable encroachments upon the rights of copyright Ìęowners, this chapter argues that these exceptions reflect the shifting Ìęrealities of cultural production and dissemination.

1. Defining User-Generated Content

User-generated content, or UGC,[2] is a term that has been used to describe a fairly wide range of Internet-based activity from blogging to file-sharing.[3] Gervais, admitting the difficulty of defining a term that covers such a broad range of conduct, has characterized it as “content that is created in whole or in part using tools specific to the online environment and/or disseminated using such tools.”[4] Hilbert defines it not so much in terms of what it is, but in terms of who makes it, writing that UGC is “used to describe activities engaged in by those typically seen not as cultural producers but cultural consumers.”[5]

Although these characterizations emphasize different features of UGC, together they highlight the profound transformations wrought by the digital information context. On the one hand, digital technologies empower users of digital works to interact in new ways with copyright-protected content; at the same time, the proliferation of new and modified content from non-professional sources has undermined the traditional content intermediaries, creating a radically transformed context for the dissemination of information and cultural content.[6] It is precisely this new paradigm that underpins the recent Supreme Court of Canada copyright jurisprudence.[7]

The expansive definitions of UGC have led to further attempts to categorize UGC for the purposes of legal analysis. Trosow et al[8] offer a taxonomy for UGC that features three broad categories: creative content, small-scale tools (such as apps) and collaborative projects (such as wikis). In this taxonomy, the focus is on function, and it is certainly worth reflecting upon the broad range of purposes served by UGC. UGC may be innovative, creative or informative. Indeed, in fields of activity where UGC has had an impact on knowledge generation and dissemination, the focus of inquiry has been on the substantive issues around the quality and reliability of the new content, rather than on issues of copyright.[9] Copyright lawyers employ a different taxonomy. Gervais offers a taxonomy based on the nature of the content in relation to copyright principles. He would divide UGC into three broad categories[10]: content authored by users,[11] content derived by users[12] and content copied by users.[13] This taxonomy emphasizes the different ways in which individuals now engage with digital works and digital modes of dissemination. The focus on the characterization of the user’s activity, as opposed to, for example, the Ìęform of the work, is echoed as well in the Supreme Court of Canada’s Ìęemphasis in ÌęSOCAN v Bell Canada [ Bell ] on the importance of the perspective of “the ultimate users” and their purposes in relation to Ìęthe works at issue.[14]

The UGC exception in Bill C-11 is oriented only toward the second category in Gervais’ taxonomy: content that is created by users and that incorporates, to a greater or lesser extent, copyright works by others. It is therefore this category of UGC that will be the focus of this chapter. Because this chapter is about intellectual property law, it is the copyright lawyers’ taxonomy that is adopted. Nevertheless, it is Ìęimportant to note that UGC in its many forms is already becoming Ìęaccepted in different fields of activity as a source of information and Ìęcreativity, and inquiries in these fields have moved ahead to issues of Ìęhow best to use, integrate and derive benefit from these new modes of Ìęknowledge creation.

Featured here is the first part of a book chapter written by Teresa Scassa, Canada Research Chair in Information Law and Professor at the University of Ottawa. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

The post Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law appeared first on IPOsgoode.

Here then, is a summary of the changes C-11 brings on, gleaned from ’s all-day seminar on June 5, 2012, titled “.” It was an educative affair, with a range ofÌęknowledgeable speakers presenting on the most salient aspects of C-11, and its impact on the Copyright Act.

Secondary Infringement Brought On By File-Sharing

The focus here was on the division of users as “good” and “bad,” placing this perspective squarely within the copyright “maximalist” camp of arguments. The chief aim was to target the major players in the realm of privacy, such as peer-to-peer file sharing sites and networks that perpetuated large-scale infringement by allowing the public access to copyrighted works without sufficiently compensating the creators and copyright holders of the works. The speaker cited the amendment of the “enablement provision” as being instrumental in holding such sites, aptly termed “enablers” responsible for such acts, by damage awards within the statute itself, which is a change from C-11’s predecessor, Bill C-32. The language of the provision focuses on sites that are “designed primarily” for the purposes of enabling, and therefore, intent and knowledge are key factors in finding an illegal site an enabler. Responding to the concern that these provisions would also target legal internet service providers (ISPs), the speaker pointed out that C-11 created 4 “safe harbours” for such sites: the network services exception (s. 31.1(1)), the caching exception (s. 31.1(3)), the hosting services exception (s.31.1(5)), and the information tools exception (s.41.27). Put together, these exceptions were deemed to be the safety net protecting and legal or “good” ISPs versus the illegal or the “bad” enablers.

Another aspect is the “making available right,” which is “an exclusive right to control the release of copyrighted material on the Internet.” This provision is a further safeguard for both the creators and/or rightsholders, and extends to include performers as well. Simply put, it can be used to prevent the unauthorized dissemination of copyrighted online and through technology. This “digital transmission” combatant has been cited as necessary primarily to align current Canadian copyright law with its international counterparts, and to clarify that such transmission is a definite violation of copyright, something that has previously been a source of confusion to the Canadian public. The secondary infringement provisions, then, are an attempt at cracking down on the number of illegal file-sharing sites hosted within Canadian territory; this is to ensure adequate protection for the copyright holders, as well as to align Canadian policy with the WIPO, and to save face from the country’s current reputation as the “wild west of illegal file-sharing sites.”

Internet Service Providers’ and Network Services Liability for Copyright Infringement

Building on the above, both in terms of content and analogy, this presentation focused on how the enablement provision (s. 27, Copyright Act) and its exceptions would separate the “sheep from the goats,” by clarifying the specifics on ISP liability, and its limits.

Historically, intermediary sites, or those that are neither pure enablers nor just ISPs have been in the grey areas of legality, as they have been in a position to facilitate the infringing act, even if they have not been the host of the infringing activity itself. Before C-11 came into the picture, the focus was on the transmission itself, leaving the intermediary free to carry out its activities without repercussions. Further, the law did not speak to the acts of functional sites such as search engines, which only pointed users to infringing sites on request, or to their exclusive reproduction rights. At the heart of this, said the presenter, was the question of whether the intermediary was neutral in the infringement, i.e. not participatory in the wrong act, per se. However, C-11 has been said to clarify the status of neutrality by considering the principles set out in Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers (“Tariff 22,” ). Here the SCC held that intermediaries would not be held liable for providing technical functions for Internet usage, but that additional roles such as providing content could lead to liability for infringement. Additionally, the court held that the practice of caching was technical in nature, and therefore, lacked the necessary knowledge element to be deemed infringing on copyrighted material.

C-11 then, works to clarify the issue of neutrality, focusing on holding the behaviours of ISPs liable, by setting up a “willful and knowing” standard that will be enough to turn an intermediary into an enabler, while maintaining a technologically-neutral perspective that does not hold the medium accountable. Further, a new “notice and notice” (s. 41.25, Copyright Act) regime will be adopted, serving as both as a warning to ISPs to cease any activity that could be deemed infringing, as well as to avoid liability by forwarding the notice on to the user.

Finally, the presentation focused on 5 exceptions designed to protect ISPs from liability: the network services shelter (s. 31.1, Copyright Act), which will apply to both rights of communication and reproduction, and will protect those ‘conduits’ that will merely provide the means of telecommunication and reproduction, but not partake in its intent; the caching shelter (s. 31.1(2), Copyright Act), which allows lawful industry practices of using technology to cache data to escape liability from infringement; the hosting shelter (s. 31.1(4), Copyright Act), which allows emerging technologies like cloud computing to escape liability if their purpose is to enable the telecommunication of a work, and provided that there is no awareness or intent to infringe; and the information location tool shelter (s. 41.27, Copyright Act), which deems intermediaries not liable if they merely provide access to infringing material, as long as this is done automatically by the technology involved, for the purpose of providing the information, and there is no modification of the material by the intermediary.

Performers’ Rights Provisions

C-11’s attempts to bridge the gap between international and Canadian copyright law was most apparent in the presentation on the rights of performers and makers of sound recordings. The question here was mostly with respect to aligning Canada’s current take on copyright with those of the the WIPO Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT). Underlining that the WPPT brought up 4 economic rights of performers into play (reproduction, sale or transfer of ownership, commercial rental and making available), the presentation then focused on how C-11 contains provisions to adapt these into Canadian copyright law.

On implementing the both the WCT’s performers’ rights (, WCT) and the WPPT’s economic rights provisions (, WPPT) into the Copyright Act, C-11 amends s.2.4(1.1) of the Act. It establishes a “conjunctive test” that that requires two steps— making the sound recording available, as well as proving actual communication, and not mere transmission to the public. The result is that C-11 gives performers’ stronger rights under s. 15(1.1)(b), of the Copyright Act, by making any copies that are fixed on a sound recording without the performer’s permission a likely infringement.

With respect to moral rights, C-11 amends s. 17.1 and 17.2 of the Act, by setting the timeframe of moral rights to the same as the actual copyright of the performer in the work; both of these are now at 50 years after the calendar year from date of protection, or 50 years from the date of fixation.ÌęMakers’ rights are now outlined in s. 18(1.1)(a) ofÌętheÌęCopyrightÌęAct,ÌęandÌęthey are now given the sole right to make a recording available to the public, creating, as the speaker pointed out, an uncertainty in the ownership of the recording.ÌęFinally, the issue of collective administration of performers and makers rights is dealt with in s. 67.1(4) of the Copyright Act, which would require that users’ would also have to heed these newly established performers’ rights as included in the “package of rights licensed or assigned with the sound recordings.” The implications are of course, primarily with respect to increased fees and tariffs for users.

Exceptions to Infringement for Online Education, Learning and Research

By recognizing the evolution of education materials and methods to include technology, Bill C-11 creates a “fair-dealing” exception for educational purposes, as outlined in different sections of the Act, with differing levels of liability being imposed. For instance, the “lessons” provision (s. 30.01, Copyright Act) defines this with respect to distance education students, provides a limited right of reproduction and fixation, and dictates that the lesson be destroyed “within 30 days of receiving the final course evaluation” (s. 30.01(5), Copyright Act). It also places the onus on educational institutions to limit the communication of only necessary lessons to students, and to reasonably prevent the unnecessary fixation or reproduction (s. 30.01(6)(a-d), Copyright Act). Obviously, the most important question is to the practicality of this section, given that enforcement might be an issue. Further, secondary infringement provisions are also modified, and provide specific definitions for what these are (s. 27(2.2), Copyright Act). Combined with the s. 30 provisions, C-11 creates strict protections for copyright holders, as the speaker pointed out.

Another exception has been provided for works that are available publicly, on the Internet (s. 30.04, Copyright Act). An educator can now use such works for educational or training purposes, and has the rights to reproduction, communication by telecommunication and public performance, as long as the audience in each of these cases consists “primarily” of students. As a counter measurement however, rightsholders can either apply technological protection measures (TPMs) to these works, or post notices preventing their use. S. 29.4 then broadens the fair dealing exception for reproduction for instruction, but applies a reasonable time, price and effort test to decide if the work could have been purchased instead. And finally, s. 30.1(1)(c) outlines “evolutive” provisions for libraries, museums and archives for future updating of their records.

Ownership of Photographs and Commissioned Artwork

The Copyright Act has treated photography as separate from the greater framework of literary, dramatic, musical and artistic works, and C-11 aims to harmonize these within the ambit of the Act. The changes include a repeal of s. 10 of the Act, which used to attribute the ownership of the copyright in the photograph to the owner of the negative, and not necessarily the photographer. The new provision will also remove the contradictory definitions of ownership of photographs that existed, with respect to the Act, and the WCT. Further, s. 13(2) of the Act, which placed the ownership of the copyright in the commissioning party of the photograph, will also be repealed in favour of the photographer’s rights. However, a broadened consumer right will permit the commissioning party to use a photograph for a number of purposes, which are codified under the new s. 32.2(1) “permitted acts” section, which allows a consumer to use a photograph for private and non-commercial purposes, as well as to authorize others to do so for the same purposes. As the speaker stated, the biggest concern here is the destruction of the reprint market, with the cost of the initial print going up sizeably, to compensate for the almost 50% loss that photographers face potentially.

The New Fair Dealing Exceptions

C-11 introduces 3 new fair dealing exceptions, to bring the categories up to 5. These are now research, private study, education, parody and/or satire (s.29, Copyright Act). The educational provisions have already been covered elsewhere in this post. The new “user-generated content” exception (s. 29.21, Copyright Act) pertains to published works alone, and applies to non-commercial purposes, requires the source to be mentioned, requires that the users have reasonable grounds to believe that the source was not infringed, and that the usage would not have had a “major effect” on the existing work. The non-commercial aspect has said to be designed for user-generated works, which is also known as the “Youtube exception.” Further, this is not found to be limited to online content, but extends to traditional LDMA works as well (anthologies, compilations, etc.)

The reproduction rights— for “private purposes” (s. 29.22, Copyright Act ) and for “later listening and viewing” (s. 29.23, Copyright Act) do not provide a specific demarcation between ‘private’ and ‘personal’ uses, or specify whether the use must be commercial or not. Further, the ‘time-shifting exception’ for later listening and viewing allows for the ‘fixing’ or recording of broadcast content for private viewing, but must be limited to one recording, and cannot be longer than “reasonably necessary.” As the speaker pointed out, this is again a vague standard. The “back-up copies” exception (s. 29.24, Copyright Act) also allows for reproduction subject to the conditions that the use is non-infringing, but will be difficult to enforce, according to the speaker. Interestingly, also, as the speaker noted, the language in this section says “person,” implying the possibility of corporations availing of this exception as well. Finally, the “temporary reproduction for technological processes” exception (s.30.71, Copyright Act) deems it a non-infringing use of the work if the copying “forms an essential part of the technological process,” but does not define what this process actually is. The speaker’s final point considered whether the new fair dealing exceptions were in keeping with Canada’s international obligations, specifically to the WIPO treaties. He also questioned whether Canada, it its eagerness to improve its embarrassing reputation in the international arena, has perhaps overreached and “gone too far” with respect to C-11’s fair-dealing provisions. This was something that, in his opinion, would only show itself as time goes by.

Statutory Damages and C-11

No seminar on C-11 would be complete without its repercussions on the current statutory damages scheme, and this presentation outlined that C-11 will now divide the damages awarded for infringement into two categories: commercial and non-commercial. The speaker pointed out that a new proportionality standard has been applied, meaning that the limitation on the quantum of damages awarded would be based on the nature of the wrong; therefore, non-commercial infringements (education etc.) face a range of $100-$5000 for all the infringing works combined. On the other hand, the values for commercial infringements are placed from $500-$20,000 per work infringed, showing that C-11's aims to stop infringement might be harsh, but they are atleast consistent. As the speaker of the secondary infringement talk stated earlier, the main changes are designed to target the biggest pirates on the copyright seas.

The new statutory regime also specifically excludes enablers (s.38.1(6), Copyright Act), but allows for actual damages and injunctions to be claimed. The rationale here is that these infringers will likely not be affected much by statutory damages.

Protections and Remedies Against Circumventing TPMs and DRMs

The next presentation dealt with one of the most controversial changes to the Copyright Act through C-11, the provisions designed around TPMs and Digital Rights Managements (DRM) measures. Here again, the question of harmonization with the WIPO treaties seemed to be foremost on Parliament’s mind, specifically with respect to preventing the circumvention of TPMs, as well as DRM systems. The speaker pointed out that even though copyright infringement was technically a strict liability offence, with no requirement of intention to establish the wrongful act, both the WIPO treaties, and consequently, Bills C-61, C-32 and now, C-11 place an emphasis on the “knowing” element, with respect to tampering with rights management information (RMI) systems. Apart from this, a new exception (s. 41.18, Copyright Act), deals with the unlocking of wireless devices.

With respect to TPMs, C-11 places an absolute restriction on circumvention of access control TPMs (s.41(1)(a), Copyright Act), and it is here that intention has no effect. Additional provisions include the prevention of aids designed to help circumvent TPMs, including the manufacture, sale or importing of such devices (s. 41(1)(b),(c)). The criticism of these provisions comes from the fact that they are construed as being too strict, with there being no exception for fair dealing, backup copies, preserving digital copies and for obsolete/broken TPMs. Also, consumers are left in the dark with respect to which aspects of a product might be TPM or RMIs-protected, and which will not be, leading to potential for confusion and misperceptions as to the protection that will be afforded. Finally, the speaker left the room with some food for thought, by pointing out that even though Canada wants to align itself with the WIPO treaties, there is no real consistency with respect to the effectiveness of TPMs. Further in practical terms, the question of breaking a TPM might be simpler than expected, making detection and enforceability a possible issue.

The Sole Distribution Right of Copyrighted “Tangible Objects”

The final aspect of C-11’s changes dealt with the new “distribution” right that has been introduced in the Act, as per Article 8 of the WPPT.ÌęThe speaker pointed out the additionalÌę ambiguity that has been created within Canadian law, with respect to distinguishing between an actual distribution right versus that of the “making available" one, Ìęattributing this gap in understanding to the ignorance of the French word “exemplaire,” which would have been better poised to correct the matter.ÌęThe distinction would effectively have characterized the two with respect to the right of distribution for an original, and an ‘original copy.’ÌęFurther, a right to publication would be completely exhausted at the ‘offer’ stage, while a right to distribution would be exhausted on a copy-by-copy basis, according to the speaker.

After noting that the distribution right would not have an effect on the existing rights to publish, make available or of exclusive distributorship, the speaker noted that the right could have been put in Canadian law to introduce the doctrine of exhaustion – the principle that once the rightsholder has obtained an economic gain through the work, the purchaser would be “entitled to use and dispose of [the work] without further restriction.” Arguably, this would not reduce the copyright owner’s control over the work, because all other rights except for the distribution one would still be maintained. On the flip side, it does not seem to add to the holder’s rights either, but could add more actors on the copyright stage, like distributors. The speaker’s ultimate conclusion was that the right could have been placed in the Copyright Act to aid harmonization with the WIPO treaties.

Ìę

House Debates on C-11

On June 15, 2012, the of Hansard debates regarding C-11 took place in the House of Commons, with MPs bringing up any final concerns regarding the bill. Foremost on the minds of the MPs was the issue of balance, and to ensure that this was played out with as much integrity as possible. Criticisms ranged from there being a lack of eye-to-eye on both sides, with respect to achieving this balance, as well as the worry that C-11 was ultimately profiting corporations and “satisfying industry concerns” (David McGuinty, Ottawa South, ON). Its supporters, on the other hand, insisted that the fairness balance had been found, and that the bill would ensure the Copyright Act would be ushered into the 21^st century, allowing for Canadian copyright law and policy to be on par with the rest of the world (Christian Paradis, Minister of Industry and Agriculture).

The birth of Bill C-11 and its passage into law has been anything but smooth. Even though it still has some time before it’s provisions are codified into the Copyright Act as formal law (it is now headed to Senate), Canada’s current round of copyright reform is here to stay, for better or for worse. The question that is foremost on the minds of many Canadians, no doubt, is whether the better will trump the worse, and is something that only time and patience will tell.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School.

The post Happy(?) Birthday, Bill C-11! appeared first on IPOsgoode.

Bill C-11 began with its before the House in September of 2011, and is presently, as of May 14 2012, in its . Otherwise known as Canada’s Copyright Modernization Act, Bill C-11 was met by a list of last minute motions (totaling 23) proposed by the Green Party’s and also by from the Bloc QuĂ©bĂ©cois Party. Interestingly, neither the Green nor Bloc Parties had representatives present in the parliamentary committee studying the Bill.

Particular highlights of the 19 motions proposed by Elizabeth May include her request for amendments to be made to Clauses 21, 22, 27, 29 and especially 47 of the Bill which concern fair dealing, non-commercial user generated content, defining the parameters of the term ‘lesson’, research or private study and technological protection measures and rights management information, respectively.

With respect to the 'fair dealing' provision, May requested that Clause 21 be amended to include a provision which would allow for the Governor in Council to make regulations defining ‘education’ for the purposes of fair dealing.Ìę In the , May elaborated on this provision:

"However, the government threw in “education, parody or satire”, and the use of the word “education” does create some concern, primarily because “education”, as a term or exception under copyright use under fair dealing, has not been previously defined in the courts. It could lead to significant litigation to expand or narrow the meaning in ways that would be prejudicial to the average person who wants to use the material. Given that those people who might want to change the law in ways that restrict consumer access and normal opportunities to use materials are those with the greatest and the deepest pockets to go to court to prove this, it seems that down the road we might want to improve the way the bill currently reads and to create an opportunity by regulation for the Governor in Council to provide a definition of “education”, which is currently not in the bill, in order to leave that flexibility in place down the road. That is what my Motion No. 3 stands for: that the Governor in Council may make regulations defining “education”.

This specific amendment comes from testimony by Giuseppina D'Agostino, a Professor in intellectual property at Osgoode Hall Law School and Founder and Director of IP Osgoode In December 2010, when the previous iteration of Bill C-11, Bill C-32, was before the Parliamentary Committee, Professor D'Agostino commented on the need for an amendment:

"This would allow for a more evidence-based approach and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and to be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time."

Motions No. 4 and 5 propose amendments to Clause 22 to remove what will be s. 29.23(1)(b), or the requirement that you cannot circumvent a TPMÌęin order to qualify for the timeshifting exception, and the same for 29.24(1)(c) for the backup copying exception.

Motions No. 6 and 7 propose amendments to Clause 27, allowing students who receive lessons via telecommunication to reproduce the lesson for non-infringing purposes, striking the provision requiring them to delete copies of the lesson 30 days after their exams, and removing the duty from educational institutions to add TPMs to lessons received by students over the internet.

Motion No. 8 amending Clause 29 would remove the condition requiring that libraries, archives or museums providing a digital copy to a person who has requested it from another like institution, take measures to ensure that the person does not use the copy for more than 5 days from which it is first used -essentially removing the 5 day limit from interlibrary digital loans.

Motions No. 9 through to 21 propose changes to the technological protection measures and rights management provisions in Clause 47. Some of the proposed changes include:

• Defining “circumvention” of a TPM as a “measure for the purpose of an act that is an infringement of the copyright in the protected work.” Namely linking circumvention with copyright infringement.
• Deleting the provision which would make the manufacture, import, distribution or offer for sale or rental of circumvention devices illegal.
• Absolving liability for persons who have lawful authority to care for or supervise a minor and who circumvents a technological measure on a legally obtained, non-infringing copy of a work, to protect the minor.

In his , Michael Geist, Professor at the University of Ottawa, Faculty of Law notes that it is uncertain as to whether any of the proposed changes will make the cut, as previous recommendations made by other parties had all been rejected.

Elizabeth May was on her position concerning copyright reform in an iPolitics report, stating that she believes that the digital locks are “too restrictive” and that addressing these issues before they become law would be in the interest of both Canadians and Parliament. Further, she believes that the American entertainment industry is partially responsible for these changes and feels that “
[w]e could create a fairer balance that’s fairer to Canadian consumers.”

Other proposed changes include Andre Bellavance's proposal that Clauses 1, 2, 49 and 62 of Bill C-11 be deleted. These propositions include the definition of the term ‘moral rights’ and ‘treaty country’ andÌęthe prescription period for civil remedies.

Currently one step closer to fruition, the current Canadian copyright reform bill – - has come a very long way since its inception as Bill C-32 nearly 2 years ago, in June 2010. For previous IPilogue highlights on Canadian copyright reform efforts, please see .

In her Copyright: Characteristics of Canadian Reform, Sara Bannerman, Assistant Professor at McMaster University presents an insightful and detailed chronology of previous copyright reforms. She notes that the last two major copyright reforms (coined Phase I and Phase II) occurred in 1985 and 1997 respectively: Phase I included protection for “computer programs, to strengthened moral rights and to institute copyright collectives”, and Phase II amendments included “rights in public performances and broadcasts for performers and producers of sound recordings”.

Based on the political climate surrounding the Bill and the previously rejected proposed amendments, it is highly unlikely thatÌęMay and Bellavance's last minute motions will make a dent in its outcome. It remains to be seen what the ultimate result will be.

Courtney Doagoo is a doctoral student at the University of Ottawa, Faculty of Law.

The post One Step Closer: Bill C-11 appeared first on IPOsgoode.

The Power of Norms

The research on social norms suggests that people generally obey the law because they think it is the right thing to do. In contrast, laws that starkly contradict social norms may encourage non-compliance and create criminogenic effects.[1] If the sociological and psychological research is correct, then the ability of Bill C-11 to single-handedly combat online copyright infringement will fall short. For instance, any attempt to curtail copyright infringement through the legal reinforcement of technological protection measures may have little effect if individuals do not believe in the efficacy of these technologies and the laws to begin with.

When the law is in line with social norms however, the law is typically abided by and enforcement is relatively easy given that the law is socially accepted. If social norms are not aligned with laws, disobedience is more probable, and given the scale of online music file sharing, enforcement will also be difficult without great costs.[2] To take an example, we believe that murder is intrinsically wrong and society does not have any problems complying with laws against murder. When it does happen, we inherently believe that the law should punish those who commit murder and we believe that murderers should be socially condemned. Even if there was no law against murder, it is unlikely that individuals would begin to kill one another – the social sanctions and innate understanding about appropriate conduct regarding taking another’s life would guide individuals.

ÌęUniversities: The Alignment of Norms with Law

These social norms and sanctions are simply not as strong with online music file sharing and copyright law. Nonetheless, smaller communities, rather than the government at large, have the ability to foster respect for intellectual property without strict recourse to the law. Take the example of university rules around plagiarism and academic integrity, which, as opposed to copyright laws, are often most salient for students. Students comply with academic rules and properly attribute their research not because of any particular legal justification, but also because of the social stigma in the academic community around those who plagiarize. The sanctions for plagiarism that a student would receive from university administration punish much in the same way that the law does. In addition, there is the social consequence of risking one’s career and having their work discredited, which is enough to deter most from plagiarizing. Hence, it is this interaction between regulatory consequences and social sanctions that likely affects behaviour.

As well, in one survey,[3] college students thought that file sharing was common practice and didn’t have any problems with it. However, they said that it would be less socially acceptable if those who did so were subject to shaming penalties, such as having their names published, and had their university Internet privileges taken away.[4] As a consequence, the survey results suggest that universities have a role to take in aligning social norms with the law by applying social sanctions to those who use the school’s Internet to engage in illicit online music file sharing. These two examples illustrate that, at least within the university community, there are many opportunities for strong social sanctions to effectively hinder infringing music downloads without strict recourse to formal laws or enforcement.

What is Next for Bill C-11?

This commentary is not asserting any justifications for the social norms of society, nor is it arguing that Bill C-11 will be an unsuccessful piece of legislation in addressing the challenges of the Internet and technology. However, what is necessary to understand is that Bill C-11 alone will likely not be enough to limit copyright infringement in the digital era. Social norms are a powerful determinative factor in dictating human behaviour. As a result, the challenges that technology and the Internet present must not only be addressed through the law but through an understanding of our social norms and interactions.

Alexander Ly is a JD candidate at Osgoode Hall Law School and is currently enrolledÌęin Osgoode's Law & Social Change: Law & Music course. As part of the course requirements, students are asked to write a blog on a topic of their choice.

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