Missed Opportunities: Bill C-60 and User-Rights

Canadian governments exhibit a predictable pattern of behaviour in copyright revision: the government of the day continuously promises attention to user issues in the "next round" of revision, only to ignore those issues in favour of granting more, stronger and longer rights to copyright holders. Bill C-60 continues this pattern.

In 2001, the government promised that Bill C-60 would address “user issues”. But in the 2005 bill, the government's commitment to these issues amounts to an overly restrictive distance learning provision and an electronic interlibrary loan provision that requires libraries to become specialists in "digital rights management" (DRM) technology. Here are some public interest copyright issues that weren't addressed by Bill C-60:

1. Reform of statutory damages. "Statutory damages" are a pre-determined amount of money that copyright holders can seek in a lawsuit, irrespective of the actual damage caused by a copyright infringement. In Canada and other countries that have statutory damages regimes, the amounts are extraordinarily high, and often bear no rational relationship to the harm caused. As a result, in practice, they deter people from engaging in a wide range of non-infringing activity in areas where the threat of a lawsuit with these penalties is present. In addition, under C-60 these penalties would have applied to our public institutions. They also apply to file-sharing defendants in perversely disproportionate ways. For example, a single file-sharing defendant with 100 songs -- which represents about 10 albums and a relatively small number of files -- could be forced to pay $2,000,000 if found guilty of copyright infringement. These punishments grossly outweigh the actual harm caused by copyright infringement.
2. Reform of fair dealing. Fair dealing -- the legal protection that we rely upon when using a copyrighted work for personal use -- continues to be based on a narrow categorization approach with uncertain application. As a result, parody, reverse engineering and research, time-shifting and media-shifting, transformative works, and other valuable uses of copyrighted content exist in Canada only under the shadow of copyright infringement lawsuits.
3. License agreements that eviscerate user rights. Standard form licensing agreements routinely require Canadians to abandon their rights, including their right to deal fairly with a work or comment publicly on it, in exchange for access to the work. This trend will only accelerate with the advent of ubiquitous DRM. Since copyright is a time-limited monopoly, these license agreements effectively upset the balance of power between the public and copyright holders.
4. Internet radio. While alternative radio thrives in the US under a workable licensing scheme, Canada falls behind. Bill C-60 would have done nothing to address the absence of a workable licensing system for webcasting.
5. Crown copyright. Canadians continue to lack full access rights to works they have paid for through their tax dollars. In many other countries, including the US, the federal government is precluded from holding copyright in works that it produces. This is intentional. It ensures that the public has access to material that they've already paid for. Canadians deserve the same rights.
6. The digital library. Canada has the opportunity to become the first nation in the world to make its cultural heritage universally available online. But Bill C-60 didn't just fail to pave the way towards this goal: it affirmatively placed limits on who can access things like distance learning materials, forced those materials to be published in restrictive formats, and otherwise inhibited meaningful access to educational and cultural resources.

It’s time for Canadians to demand of their governments that copyright laws reflect the public interest, and this means addressing issues that are important to all Canadians, not just copyright holders.