Copyright legislation to take hard line on circumvention devices
Sarah Schmidt
Sun
OTTAWA — The federal government’s new copyright legislation is expected to take a hard line on the use of circumvention devices and that could mean consumers are locked out of digital content they have already paid for.
Lobbyists familiar with the bill, expected to be tabled this week, say those who are lobbying for a prohibition on the devices are taking aim at people who get around digital security so they can make multiple copies and sell them for profit.
And this broad approach could brand as lawbreakers consumers who use circumvention devices to copy legally purchased material, including music and movies, for personal use.
Instead, the law could end up making it illegal for anyone to bypass security on material they already own — either to transfer music from a copy-protected CD to a computer or music player, crack a region-coded DVD or video game from Europe or Asia to play on their Canadian DVD player or console, or to copy portions of electronic books.
While the new bill will likely be updated to make expressly legal the “time shifting” of television programs through widely used personal video recorders, there will be a catch. The bill’s anti-circumvention provisions could also mean that if broadcasters block the ability to digitally record certain shows through digital flags, consumers would not be able to get around that lock legally.
“There are real incentives for broadcasters to do just that,” said Michael Geist, a digital copyright expert at the University of Ottawa.
“It feels as if the Industry minister gives on one hand and takes away with the other, even on the issue of something like time shifting.”
Industry Minister Jim Prentice was set to table the legislation last December, but pulled it amid concerns the Canadian legislation too closely resembled the U.S. Digital Millennium Copyright Act, recognized as the toughest legislation worldwide. For example, the U.S. law makes all acts of circumvention an infringement unless subject to a specific exception.
Meanwhile, sources say Internet service providers will get a reprieve in the new legislation, an area where Canada is expected to deviate from provisions under U.S law. The American legislation requires ISPs to block access to allegedly infringing material or remove it from their system when they receive a notification claiming infringement from a copyright holder or their agent.
The Entertainment Software Association of Canada lobbied the government for liability provisions to force ISPs to stop the download of infringing content and block pirated material from moving freely online using peer-to-peer technology.
But observers say absence of a U.S.-style “notice and takedown” system under Canadian copyright law could be meaningless if Canada signs on to the proposed Anti-Counterfeiting Trade Agreement (ACTA), to be tabled next month at the G8 summit in Japan.
Details of the international deal, recently leaked on the Internet, could require ISPs to filter out pirated material, hand over the identities of customers accused of copyright infringement, and restrict the use of online privacy tools.
“ACTA threatens to undermine many of the liability provisions anyway if, internationally, we agree to new surveillance requirements for ISPs,” said Geist.
Mark Hayes, a partner in the Intellectual Property Group at the law firm of Blake, Cassels & Graydon, has watched and participated in government consultations on copyright for the past eight years.
Drafting of the new legislation has been complicated by the fact that business groups are divided on the issue.
