The Tories new copyright legislation puts more teeth in copyright protections for those who make software, movies and other materials and have seen their intellectual property swapped freely in the Internet era.MARK BLINCH
Breaking the digital encryption on a movie DVD - even if copying it for personal use - would make individual Canadians liable for legal damages of up to $5,000 under a tougher copyright law proposed by the Harper government Wednesday.
The legislation, sponsored by federal Industry Minister Tony Clement, seeks to put more teeth in copyright law for those who make software, movies and other creative works and have seen their intellectual property increasingly pirated around the globe.
At the same time, the bill tries to soften the blow for consumers by legalizing commonplace but grey-area practices such as backing up the contents of a music CD, home recording of TV episodes for later viewing or copying legally acquired music to a digital player.
The centerpiece of the legislation, however, is the Conservative proposal to put new legal heft behind the digital locks, or encryption, that copyright holders place on products such as movies, video games and electronic books. It would make it illegal to crack these in most cases, including for personal use.
This trumps consumer rights and means, for instance, that allowances for Canadians to back up or duplicate copyrighted works for personal use disappear if a digital lock is present.
The Tories held a press conference on the bill at the Montreal office of a U.S. video-game software developer Wednesday, a move intended to drive home the message that cracking down on copyright infringement protects investment in Canada.
"For those companies that choose to use digital locks as part of their business model, they will have the protection of the law," Mr. Clement said.
He noted with approval, however, that one creative sector, the music industry, has moved away from digital locks after deciding that "punishing the consumer … is not a good business model."
The minority Harper government, which will require the support of one opposition party to pass the legislation, said jobs like the ones at Electronic Arts in Montreal depend on solid copyright protections. It was a none-too-subtle suggestion for the Official Opposition Liberals, if not the Bloc Québécois, that failure to pass the bill could hurt investment in the vote-rich province.
The legislation targets big online pirates instead of individual Canadian freeloaders and would in fact lighten rather than increase maximum legal penalties for those who illegally download or upload copyrighted works on the Internet for non-commercial reasons.
The government is proposing to scale back the total legal damages that individual Canadians could incur for piracy of goods for personal use: reducing these to a maximum of $5,000 for all infringing activity, from an existing ceiling of up to $20,000 per protected work.
Instead, the bill would go after the big fish in Internet copyright infringement, giving copyright owners stronger legal tools to shut down "pirate websites" in Canada that support file-sharing and introducing a separate criminal penalty of up to $1-million for serious cases where commercially motivated pirates crack digital encryption.
The Tories are also expanding a limited list of exceptions where Canadians will be able to break copyright for legal reasons, adding parody and satire and limited allowances for education.
In what might be called the YouTube exemption, Canadians also will be free to create video "mash-ups" that borrow from commercial works for posting online.
Ottawa is trying to update copyright law - which hasn't seen substantial amendments since 1997 - to reflect its obligations under international accords that have been toughened in the past decade.
It's currently illegal to upload or download copyrighted material without paying in Canada although the entertainment and software industries have so far shied away from the large-scale crackdowns on individuals seen in the United States.
The legislation spells out in much sharper detail how materials can and cannot be used, and extends copyright protections for intellectual works. It extends copyright on sound recordings to 50 years from the time of publication of a musical performance. Photographers are designated as the "first owners" of copyright of their pictures, which would now be protected for half a century.
Ottawa is also proposing to codify rules for "unlocking" cellular phones so they can be used with other mobility providers. It's already allowed today but the government is stipulating it can continue as long as consumers are not currently bound to a particular service provider by contract.
Michael Geist, a University of Ottawa law professor and an advocate for more flexible copyright law, called the bill flawed but fixable. He said it contains marked improvements over otherwise very similar legislation proposed in 2008.
Prof. Geist lauded the expansion of exceptions that allow education institutions to use copyrighted materials as well as allowances for Canadians to employ them in producing satire or parody.
But he said the legal supremacy given to digital locks is still a big drawback, adding that he worries it will encourage other copyright owners to add such encryption to products.
"It's one thing to tell consumers we're now legalizing some of your everyday activities like the act of making a backup copy … but to suggest those rights cease to exist the moment someone puts a digital lock on that same material, I think throws out the very balance the government was hoping to achieve," Prof. Geist said.
He said he believes the Canadian government was responding to pressure from the U.S. entertainment and software industries in making it illegal to breach digital locks, or encryption, on things such as movies, software and electronic books.
"There was big pressure from the United States and it's pretty clear they've caved to that pressure," he said.
The bill got a big thumbs up from many intellectual property producers across Canada, however, including the Business Software Alliance, the voice of the world's commercial software industry.
The Canadian Film and Television Production Association, which represents more than 400 film, television and online entrepreneurs, applauded the legislation, which also proposes new "making-available" rights for creators of intellectual property. This would let them control how works are made available online.
The new bill would also give creators "distribution rights" that enable a copyright holder to prevent a retailer from releasing property before the official release date.
At the same time, performers would be accorded "moral" rights that ensure their performance is not altered in a way that harms the artist's reputation.
The Canadian Private Copying Collective, however, criticized the proposed legislation for not imposing a private copying levy on digital music players - which it says is needed to provide more compensation for Canadian artists.
An existing private copying levy that is included in the purchase price of blank CDs is generating less and less revenue for artists as this format becomes less popular.
The collective is the non-profit agency charged with collecting and distributing private copying royalties to music creators.
Steven Chase