Copyright Reform Again Delayed

On Friday, March 25, 2011, the Conservative government lost a non-confidence motion bringing the current session of Parliament to an end and setting the stage for a Spring election, called for May 2.

The government's fall signals the demise of a number of bills, including Canada's copyright reform bill, Bill C-32. Notwithstanding the extensive consultations on Bill C-32, and passing first reading, long-awaited amendments to Canada's copyright legislation are again delayed indefinitely. This will be the third time that efforts at copyright reform have failed in the past five years.

The last substantive amendments to the Copyright Act were in 1997. The way Canadians use copyrighted material has changed significantly since then. Balancing the rights of copyright owners and users in a rapidly changing digital world is difficult, however given Canada's stated desire to adhere to the WIPO Copyright Treaty, there has long been a need to address digital locks and the ability to transfer works between media, the rights and obligations of Internet service providers (ISPs) and the bounds of fair dealing for educational institutions in our copyright legislation. It will remain to be seen if copyright reform will be a priority after the election.

While Bill C-32 is consigned to the recycling bin, the debate in the courts continues as to whether ISPs engage in the kind of broadcasting activity that would require payments under tariffs set by the Copyright Board, or oversight of the Canadian Radio-television and Telecommunications Commission (CRTC).

On March 24, 2011 the Supreme Court of Canada indicated that it would hear an appeal that will determine whether ISPs are engaged in broadcasting when music is downloaded from an Internet server. The appeal stems from a decision of the Copyright Board, which found that downloads of music files from an Internet server to an individual computer amounted to the communication of that file to the public by telecommunications and thus were the proper subject for a tariff setting out the royalties that would be payable for such a communication. Notably, transfer of the file to a single user constituted "communication to the public". This decision was upheld by the Federal Court of Appeal. Such a decision is added to a line of prior decisions in which point to point communications, such as emails, were not considered communications to the public.

The Supreme Court has not fixed a date for the hearing. This is expected to be a closely watched decision, particularly as more individuals access music, television and film through their computers and not traditional radio and television broadcasters.

Like copyright reform, any law reform in a number of other important fields will also, for the time being, occur before the courts and tribunals and not through legislative action of Parliament.

Other legislation of interest to the IP and technology sector which also died upon the dissolution of Parliament includes:

• The result of the five-year review of national private sector privacy legislation, C-29, An Act to amend the Personal Information Protection and Electronic Documents Act (Safeguarding Canadians' Personal Information Act) 
• Efforts to modernizing police powers in an information age addressing interception of private communications and related warrants and orders, C-50, An Act to amend the Criminal Code (Improving Access to Investigative Tools for Serious Crimes Act)
• Modernization of certain offences in the Criminal Code and the Competition Act to take into account new communications technologies, to equip law enforcement agencies with new investigative tools that are adapted to computer crimes and to facilitate collaboration with foreign law enforcement agencies, C-51, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (Investigative Powers for the 21st Century Act)
• Legislation requiring telecommunications service providers to put in place certain capabilities that facilitate lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to policy, intelligence services and to the Commissioner of Competition, C-52, An Act regulating telecommunications facilities to support investigations (Investigating and Preventing Criminal Electronic Communications Act).