Further Reflections on Bill C-60

On June 20, the federal government introduced the long-awaited Bill C-60, An Act to Amend the Copyright Act, in the House of Commons. In some respects the language of the Bill proved predictable, but there were a few surprises. As reported in an earlier article (e-tips®, Vol 3, No. 20, March 30, 2005) the Bill adopts a limited anti-circumvention provision for "technological measures", also commonly known as technological protection measures (TPMs), which are defined as any device or component that in the ordinary course of its operation restricts the doing of certain prescribed acts, such as those reserved exclusively to the copyright owner. Circumvention will only be considered infringing if it is carried out with the objective of infringing copyright or for private copying. Other legitimate access, as authorized by the statute, would not be altered. As predicted, the Bill adopts a new exclusive right of "making available" for copyright owners. The making available right allows copyright owners to authorize the availability of their protected works online. The amendments clarify the scope of the private copying exemption to explicitly prohibit uploading or further distribution of private copies. If passed, the result of these two amendments will be that Canadians will likely see a flood of file-sharing lawsuits by next year. Also as predicted, the Bill exempts Internet Service Providers (ISPs) from liability for copyright material circulating on their networks over which they have no control or authority, such as when they act purely as intermediaries. Copyright liability remains with those persons, including ISPs, who post or transmit copyright material without authorization. This codifies recent findings by the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers, [2004] 2 SCR 427. The Bill adopts a "notice and notice" regime which imposes a requirement on an ISP to forward the written notice of infringement from a claimant to the subscriber responsible for posting the allegedly infringing material and to retain records that will allow that subscriber to be identified for six months, or up to a year if the claimant commences legal proceedings against the subscriber. A failure to do these things could result in a fine. This procedure is a substantial departure from the US-style "notice and takedown" regime, which requires an ISP to remove allegedly infringing content when notified. That system has been criticized for its chilling effect on online speech. The Bill includes a provision respecting "Providers of Network Services Provisions or Information Location Tools" (ILTPs). An information location tool is defined as an instrument that allows someone to locate information that is available by means of the Internet or any other digital network, such as a search engine. The notice and notice system also applies to ILTPs, but where an ILTP is alleged to have infringed copyright by making a cached copy of a work, the remedy available to a copyright owner is limited to an injunction. ILTPs will not be liable for damages for caching content, but can be compelled to remove content from their cache. In order to qualify for this safe harbour, the caching must be automatic, must not modify the work, must comply with any conditions established by the individual who made the content available -provided that such conditions can be given effect automatically -, and must not interfere with lawful access to the usage data. Further, the ILTP must not have previously received a notice of infringement respecting the material. This last provision effectively imposes a more onerous "notice and takedown" procedure for ILTP caching, since in order to qualify for the safe harbour, ILTPs will be required to remove allegedly infringing content from their cache if they receive such a notice. The Bill permits educational institutions to communicate by telecommunication lessons containing copyright material, but only to its students and only for a limited time; institutions must destroy the lesson within 30 days of the conclusion of a course. Further, institutions are required to retain for three years records that identify the lesson, the date it was fixed in a tangible medium and the date it was destroyed. The Bill permits libraries and archives to provide digital copies of copyright materials, but requires them to limit further communication or copying of the digital material, and ensure that it cannot be used for more than seven days. These latter two provisions, regarding educational institutions and libraries, seem somewhat unimaginative, considering that celebrated US universities, including MIT, have recently taken steps to make all of their curricula freely available to the public on the Web. The text of Bill C-60 can be found here: http://billc60text.notlong.com A copy of the Joint Statement by the Ministers of Industry and Canadian Heritage, a backgrounder of the proposed legislation and a series of frequently asked questions can be found here: http://strategis.ic.gc.ca/epic/internet/inippd-dppi.nsf/en/ip01214e.html Summary by: Jason Young