In-house counsel closely watching proposed copyright law

In-house counsel closely watching proposed copyright law

Changes in copyright legislation introduced by the government last week are likely to affect the work of in-house counsel and need to be closely watched, say industry representatives.

Bill C-32, among other things, differentiates between individual and commercial copyright infringements, makes Internet service providers immune to their user’s infringements, and makes it illegal to break digital locks on electronic delivery tools.

Supporters say the proposed legislation brings Canada into line with the rest of the industrialized world, while offering enhanced protection for fair usage and everyday activities like moving music to an iPod. Those opposed to it mainly argue against the blanket prohibition on breaking digital locks.

In-house lawyers, many of whom work for companies that produce, hold, or consume copyright-protected material, will likely be affected by the changes.

“I think it would be important for in-house lawyers to update themselves on what the bill says, though I would caution that the bill is not likely to pass as is into law,” says Erin Finlay, legal counsel and manager of legal services at Access Copyright, the Canadian Copyright Licensing Agency. “Keeping abreast with changes to the bill is going to be important as well.”

The bill will now go through a review process that could last until the beginning of the winter.

Jason Kee, director of policy and legal affairs at the Entertainment Software Association of Canada, says the bill provides some much-needed clarity on what is and what is not protected in the digital economy.

“Everyone wants clarity because everyone wants to operate in an online marketplace with clear rules, and it’s the fact that we haven’t had clear rules for the past 15 years that doesn’t help things, especially when you are trying to develop new services and you don’t know whether you are in or out. It has been very frustrating,” says Kee.

“One of the things that everyone on all sides has been pushing for from all sides has been clarity.”

Supporters welcome the introduction of the long-awaited bill.

“When it comes down to it, this a jobs bill,” says John Barrack, chief operating officer and chief legal officer at the Canadian Film and Television Production Association. “We are very appreciative of the effort to bring Canada in line with other countries, because it’s really about jobs. At the end of the day, if we don’t have strong copyright protections, people don’t want to create their works in Canada.”

The Canadian Recording Industry Association and Canadian Independent Music Association, which together represent Canadian independent and major music companies of all sizes, applauded the proposals.

“We are pleased that the government not only has recognized the need for copyright reform, but is now taking action,” said Duncan McKie, president and CEO of CIMA. “Canada’s independent record labels, and the artists they represent, need better protection from online piracy to build a successful digital music market.”

The CRIA and CIMA note that legal clarity is needed to send a signal that downloading music from the Internet without payment is not allowed. They want stronger rules to rein in Canadian-based peer-to-peer web sites, which they consider “a major source of the world’s piracy problem.”

Several associations representing groups like documentary filmmakers and students have condemned the bill as being too harsh, particularly on the issue of the blanket prohibition on breaking digital locks.

According to a statement by the Documentary Organization of Canada, the bill hampers documentary filmmakers’ ability to tell stories.

“By outlawing the breaking of digital locks, the government is creating an impenetrable fence around legal access to copyrighted material,” it said.

Dave Molenhuis, national chairman of the Canadian Federation of Students, said: “Despite a welcome expansion of fair dealing rights, these new protections for digital locks will seriously undermine the ability of students, teachers, and citizens to access and make use of copyrighted works.”

However, there are those who say the proposed legislation doesn’t go far enough. Access Copyright’s Finlay, for example, tells InHouse the organization she represents is disappointed because it wanted to see tougher protections.

“Given all the confusion that’s out there, people are still trying to digest it,” she says. “I think it is fairly apparent that the bill needs to be clarified.”

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