canada's ongoing amendment to copyright law narrative chronology of the policy process

Canada’s Ongoing Amendment

to Copyright Law

Monika E. Sosnowska, Simon Fraser University

CANADA’S ONGOING AMENDMENT TO COPYRIGHT LAW 2

Narrative Chronology of the Policy Process

The Interim Report on Copyright Reform released by the Standing Committee on Canadian

Heritage (SCCH), called for a modernized Copyright Act attributed to the technological developments.

Importantly, it provided best practice suggestions for six short-term issues derived from the Supporting

Culture and Innovation: Report on the Provisions and Operation of the Copyright Act (Section 92 Report)

and endorsed the World Intellectual Property Organization Copyright Treaties (WCT) (Standing Committee

on Canadian Heritage, 2004).

Bill C-32: An Act to Amend the Copyright Act received Royal Assent in 1998 (Standing Committee

on Canadian Heritage, 2004). Under Section 92 of the bill, a report outlining the success of the Act was to be

provided within five years (Department of Canadian Heritage and Industry Canada, 2002a). In June 2001,

Industry Canada’s addressed potential amendments in A Framework for Copyright Reform (Department

of Canadian Heritage and Industry Canada, 2001b) and the Consultation Paper on Digital Copyright

Issues (Department of Canadian Heritage and Industry Canada, 2001a). Furthermore, Section 92 Report,

the suggested five-year overview, identified remaining matters that were broken into three time frames

and proposed further legislative action (Department of Canadian Heritage and Industry Canada, 2002a).

In June 2003, Industry Canada research suggested swift implementation of the WCT Treaties

(Industry Canada, 2003a) and the Status Report on Copyright Reform was submitted to SCCH

(Department of Canadian Heritage and Industry Canada, 2004a). Parliamentary meetings on the proposed

Bill C-60 addressed the short-term issues and invited stakeholders to provide feedback (Standing

Committee on Canadian Heritage, 2004b). Many articulated their concerns with the proposed legislation

in person, including Access Copyright and the Bureau of Canadian Archivists (75 (Industry Canada,

2003a). It was recommended that Bill C-60 be introduced in the House of Commons by February 2005

(Standing Committee on Canadian Heritage, 2004).

In May, the Interim Report on Copyright Reform was released (Standing Committee on Canadian

Heritage, 2004) thus commencing the process of eventual legislative change. On June 20 2005, Liza

Frulla introduced Bill C-60 in the House of Commons (Department of Canadian Heritage and Industry

Canada, 2004a). It proposed possible amendments to the Act previously outlined in the Interim Report

(Bill C-60, 2005). Advocacy groups believed it favoured rights holders (Lawson & Lott, 2004) and

although a petition for user’s rights was signed by Canadians (Digital Copyright Canada, 2005) the

Parliament was dissolved on November 29 and Bill C-60 never passed into law (“Federal leaders come

out swinging as Jan. 23 election set”, 2005).

Stakeholders addressed future copyright legislation before the 2006 election. Industry Canada

continued to study the potential impact of levies placed on blank media devices (Industry Canada, 2005)

and the effects of peer-to-peer file sharing (Industry Canada, 2007). The industry stakeholders addressed

the growing importance of digital music on revenues (LeBlanc, 2006). Subsequently, in 2007, the

Canadian Recording Industry Association reassessed its previous support of iPod levies (Anderson,

2007). Educational exceptions in copyright amendments (Council of Ministers of Education, 2003) and

interlibrary transfers (Canadian Library Association, 2006) were also widely addressed. Consequently,

Canadian Heritage recommended that past court rulings should apply to the Act and that fair dealing

exceptions should include education (Department of Canadian Heritage, 2007).

On June 12 2008, under a Conservative minority government (O’Neill & Thomas, 2012) Bill C-

61 was introduced in the House of Commons by Jim Prentice (Bill C-61, 2008). Critics argued that

limited user rights were overshadowed by prominent provisions supported by the public (Geist, 2008). In


September 2008, the Parliament was once again dissolved and the bill did not pass into law (Bill C-61,

2008).

In October 2008, a Conservative minority government (Heard, n.d.) immediately began revisions

of the Act (Industry Canada and Department of Canadian Heritage, 2009) and in July, Tony Clement and

James Moore began consultation meetings with the stakeholders (Canadian Heritage, 2010). Bill C-32

was introduced in the House of Commons on June 2 2010 (Bill C-32, 2010), focusing on the protection of

intellectual property, ISP liability and extension of fair dealing (Legislative Committee on Bill C-32,

2010). It was received with mixed reaction by the stakeholders (Nowak, 2010). Bill C-32 was read for the

second time on November 5 2010 (Bill C-32, 2010) but a motion of non-confidence dissolved the

Parliament on March 26 2011 and the bill never became law (Galloway, 2011).

In May 2011, a majority Conservative government was elected and Bill C-11 an Act to Amend

the Copyright Act was introduced in the House of Commons by Christian Paradis and James Moore on

September 29 (Bill C-11, 2011). Bill C-11 proposed the ratification of WCT, prohibited circumvention of

digital locks, placed a levy on blank recording devices, extended fair dealing provision, and addressed the

role of ISPs (Dobby, 2011). Industry stakeholders generally approved of the proposed amendments while

NGOs addressed concerns that the proposed legislation will affect schools, libraries, museums and future

generations (Legislative Committee on Bill C-11, 2011).

Bill C-11 was read two more times in the House of Commons, on February 13 and June 18, 2012

and subsequently was referred to a Committee for further amendments and received unanimous

Conservative support (Bill C-11, 2011). The proposed legislature was read in the Senate on June 18 and

June 21 and on June 27, the Committee on Bill C-11 reported that no further amendments were

recommended (Bill C-11, 2011). Two days later, Bill C-11 was read in the Senate for the third time and

received Royal Assent the same day (Industry Canada, 2012).

Stakeholder Profiles

Government Stakeholders

In 1996 the Canadian Copyright Act was amended when Bill C-32 received Royal Assent

(Standing Committee on Canadian Heritage, 2004) and implemented many changes that addressed

developing technologies (Department of Canadian Heritage, 2008). Yet it never rectified the 1996

international World Intellectual Property Organization Copyright Treaty (WCT) which was signed by

Canada in 1997 and recognized the need for new international rules regarding technological

developments (World Intellectual Property Organization Copyright Treaty, 1996) and addressed

numerous provisions necessary to protect intellectual property in the times of rapid technological

advances; private copying, photographic works, internet Service Providers liability, use of the internet in

education, technology-enhanced learning, interlibrary loans, and digital locks (Standing Committee on

Canadian Heritage, 2004). Bill C-32 encouraged a review of the Act to occur within five years

(Department of Canadian Heritage and Industry Canada, 2002a)

As a central stakeholder, the federal government of Canada began the review of the Copyright

Act in June 2001with a release of two consultation papers (Standing Committee on Canadian Heritage,

2004). Industry Canada and the Department of Canadian Heritage were the prominent government

departments involved in the revisions of the Act, nevertheless stakeholders representing both the users

and industries were encouraged to provide feedback. Furthermore, prior to proposing legislation

amendments, the Ministers of Canadian Heritage and the Ministers Industry Canada analyzed the market

and the potential implications the Act may have on all stakeholders. The government desired to


collectively appease citizens, rights holders, industries and international community with a modern and

well-balanced Act (Industry Canada, 2012). In light of rapidly evolving technological advances, a prompt

legislative action that produced a clear and modernized Act was desired by all stakeholders (Industry

Canada, 2012).

In order to provide a well-balanced legislation, Industry Canada released A Framework for

Copyright Reform (Department of Canadian Heritage and Industry Canada, 2001b), the Consultation

Paper on Digital Copyright Issues (Department of Canadian Heritage and Industry Canada, 2001a) and

the Section 92 Report (Department of Canadian Heritage and Industry Canada, 2002a). Furthermore, it

funded market analysis, including Economic Impact of Options for Reforming the Private Copyright

Regime (Industry Canada, 2005) Internet Service Providers Report (Industry Canada, 2006), and The

Impact of Music Downloads and P2P File-Sharing (Industry Canada, 2007). During the analysis, Industry

Canada considered the effects of levies placed on recorded media devices, peer-to-peer file sharing

(Industry Canada, 2005), and potential liability of ISPs for transmitting and hosting infringing material

(Industry Canada, 2006), rights management information, circumvention technologies, and extending the

term of protection (Industry Canada, n.d.).

As another major stakeholder, the Department of Canadian Heritage, provided input on the

Consultation Paper on Digital Copyright issues which proposed that legislative action be undertaken to

modernize the Copyright Act and rectification of WCT Treaties (Department of Canadian Heritage and

Industry Canada, 2001a). The Fair Dealing After CCH report considered the importance of fair dealing

provisions that provided schools, libraries, archival holdings, researchers and other governmental

departments with affordable access to copyrighted works thus helping in preservation of Canadian culture

and history (Department of Canadian Heritage, 2007). The Copyright Management in the Canadian Music

Industry was funded by Canadian Heritage and the research concentrated on how the 1997 Copyright Act,

the neighbouring rights and private copying rights impacted music industry (Department of Canadian

Heritage, 2008)

Industry Stakeholders

Industry stakeholders include businesses and not-for-profit organizations that represent the

benefits of the sector. These organizations act on behalf of their constituents to further the interests of the

specific sectors they represent; most often this involves monetary gains.

In 2001, the government of Canada began consultations regarding proposed amendments to the

1998’s Copyright Act and welcomed any constructive feedback from the stakeholders; the industry

promptly responded. The interests of their constituents were foremost on their minds. Many industries

would potentially be financially affected by the amendments including professional performers, high tech

industry, music industry, film & television industry, internet providers, writers, researchers, newspaper

industry, photography industry. The stakeholders provided feedback by submitting briefs, attending

Parliamentary meetings (Standing Committee on Canadian Heritage, 2004b) and by publishing reports on

how the amendments will affect their industries.

Generally, the industry stakeholders welcomed the potential amendments to the Act. Advances in

technology allowed for easy access of copyrighted works and, according to the industry sector, an

updated Act would protect copyright owners from infringement and monetary losses. It was also believed

that the proposed Act, if aligned with international standards, would encourage innovation, research and

investment, thus contributing to Canada’s economic well-being (Standing Committee on Canadian

Heritage, 2004b).


Majority of the stakeholders agreed with the implementation of WCT. Canadian Copyright

Institute (30) stated that WCT would allow for implementation of technological protection measures and

ensure that rights management information protects rights holders. The Intellectual Property Institute of

Canada further supported WCT and requested a five-year review of the act (Intellectual Property Institute

of Canada, 2001). The Canadian Photographers Coalition wanted to ensure that photographers received

the same rights as other intellectual property holders and that commissioned work remained in the hands

of the creators (Canadian Photographers Coalition. 2001). Music and motion picture industries, being

popular among the general public, wanted a quick ratification of WCT in order to prevent further

monetary losses (Canadian Publishers’ Council. 2001) and asked that the internet service providers be

held liable when their users download, share or store copyright protected works (Canadian Motion Picture

Distributors Association. 2001). The Writers’ Union of Canada asked that fair dealing is not extended to

educational communities as it would undercut proper remuneration of authors and researchers (The

Writers’ Union of Canada, 2009).

Not all stakeholders welcomed the proposed amendments. Canadian Association of Broadcasters

was concerned with potential limitations placed on digitally acquired music which could lower future

revenues. (LeBlanc, 2006). The Canadian Association of Industry Providers was concerned with potential

liability of internet service providers and the fees that could be endured when individual users infringe on

copyright (Canadian Association of Internet Providers, 2001). The Association recommend that users

should be liable for their actions and that content should be removed when proper legal authorities advise

it, not when copyright owners request it. A proposed tariff on revenues should not be imposed and

divulging personal information of users was not advised. Canadian Newspaper Association, although

supportive of the proposed amendments, also agreed that ISPs should not be held liable for the actions of

the users (Canadian Newspaper Association, 2001). The Canadian Cable Television Association also

stated that amendments are long overdue but that ISPs should not be held liable (Canadian Cable

Television Association. 2001).

Nongovernmental Organizations

Nongovernmental organizations (NGOs) include not-for-profit advocacy, public interest, and

education groups. These organizations act on behalf of citizens to ensure that the well-funded corporate

sector does not push for laws that will be harmful to the general public.

When the government of Canada began consultations regarding the proposed amendments to the

Copyright Act, stakeholders were invited to participate in the discussion. NGO stakeholders spoke

candidly about their opposition to the amendments. Although all stakeholders understood that there was a

need for an updated Act, the concern was that the benefits of the industry sector would overshadow those

of the users. The NGOs addressed the Parliament in person and in writing regarding the negative impact

that certain proposed provisions would have on Canadian citizens.

There was certain unanimity in their plight, which concentrated on few major issues. Educational

groups addressed fair dealing and easy access to the Internet and new technologies in education settings

(Canadian Association of Research Libraries, 2001). The Association of Universities and Colleges of

Canada argued that academic rights holders differ from artists and corporations and that their work should

be easily accessible by students and teachers (Association of Universities and Colleges of Canada, 2001).

Furthermore, there was a need for an Act that provides all students and teachers, regardless if they are

physically present in a classroom or distance learning, with the same rights (Association of Canadian

Community Colleges, 2011).

Protection of user rights in Canada was addressed by the Canadian Internet Policy and Public

Interest Clinic. The organization was concerned that user consumer privacy would be compromised to


benefit multinational corporations. Furthermore, the proposed amendments gave more rights to the rights

holders without considering the impact it would have on users, thus the legislation was not in public’s

interest (Canadian Internet Policy and Public Interest Clinic, 2005).

National and regional libraries, museums and the associations acting on their behalf, including the

Canadian Library Association, declared that the legislation favours industries and does not benefit

Canadians and would greatly impact Canadian libraries and the public. Additionally, under the legislation,

all Internet users are believed to be infringing on copyright. (CMEC Copyright Consortium, 2001). The

organizations also addressed that interlibrary digital exchanges of copyrighted works should be permitted

and that making copies in alternate mediums should be allowed if the original medium is outdated or may

become unavailable (Canadian Association of Research Libraries, 2001). These organizations further

supported the use of the Internet and technology in educational setting.

The proposed legislation considered extending the term of protection of works from life plus fifty

years to life plus seventy years. In response, the stakeholders asked that the term of protection remains as

is. An extension of twenty years, according to the Canadian Archival Community, would significantly

impact many archival holdings. These holdings, according to the stakeholders, represent Canadian culture

and heritage and are an integral part of Canadian Society. Moreover, the archival holdings should be

allowed preservation in other mediums to ensure they are available to future generations (Canadian

Archival Community, 2001).

Overview

The nongovernmental organizations were the most persuasive to the general public yet the

industry stakeholders were more persuasive to the government. Economic stability often overshadows

individual rights in politics and as such, it’s a driving force behind policy making. Although the

government ensured that the citizens were represented in the policy making, the industry sector was more

successful in receiving governmental support.

International Comparison

In December 2012 the United Kingdom began amendments to the Copyright Act. Modernising

Copyright: A modern, robust and flexible framework (Intellectual Property Office, 2012), was similar in

nature to Canada’s Interim Report on Copyright Reform (Standing Committee on Canadian Heritage,

2004a). The report outlined the government’s position on the proposed reform and addressed the need for

a modern, yet balanced Act. Following a widespread consultation, the concerns of the stakeholders were

considered and the government promised a clear copyright law which will encourage economic growth of

creative industries while protecting users and consumers. Furthermore, the government addressed the

need for a copyright act that will encourage further innovation in order to remain internationally

competitive.

Canada’s Interim Report (Standing Committee on Canadian Heritage, 2004a) addressed multiple

provisions that impacted industry and NGO stakeholders. The United Kingdom also considered how these

provisions would affect corporate sectors and citizens. Copyright protection, although vital, was not to

considerably limit users’ rights at the time where technology was widely used in educational and research.

Thus, any amendments should be modern in a way that they consider future technologies, yet flexible

enough for users to easily access evolving technologies and the Internet.


United Kingdom’s report was similar to the Interim Report produced by the Canadian federal

government. It addressed provisions that needed amendments and recommended course of action. Under

the private copying provision, users would be permitted to transfer the legally obtained works to other

medium or devise, including CD, iPod or digital tablets. The proposed legislature prohibited sharing of

copyrighted files with other users. It was also stated that educational institutions should pay a fair license

fee for the usage of copyrighted materials and that students and teachers should have easy access to

technology and the Internet. In contrast to Canada’s report, it proposed changes that would allow the

usage of interactive whiteboards in classrooms and a limited number of works that could be used without

a license. It also permitted using some material in cases where it would cause little harm to copyright

owners. The Modernising Copyright report also addressed archiving and preservation of works, and

permitted libraries and museums to archive any work that is in a permanent collection and is at risk of

becoming obsolete.

The report also addressed provisions not mentioned in the Canadian 2004 Interim Report.

Quotation and news reporting in social media and online was permitted in limitation and as long as it did

provide proper references to the original work, although it did exclude photographs from the news

reporting provisions. The report also addressed exceptions for people with disabilities who would be

permitted to obtain copyright-protected works in a form that is accessible to them but only if the disability

prevents them from accessing the work in its original medium.

Although the Canadian and United Kingdom reports were similar in nature and mainly addressed

similar provisions, some amendments were not included in the Canadian report. The time in between the

release of the two reports would likely affect the types of provisions mentioned. When the Interim Report

was released in 2004, technology wasn’t as advanced as when the 2012 Modernising Copyright was

released and thus did not consider certain technological advances such as whiteboard. Generally, the two

reports have much in common and address similar copyright issues.

Disclosure Analysis

The Interim Report on Copyright Reform addressed copyright infringement that occurred in early

21st century due to technological advances and use of the Internet. These advances provided the public

and corporations with wide access to copyrighted works at no cost to users but at a great potential cost to

the copyright holders. The industry stakeholders, concerned with potential monetary losses, called for a

modernized Act that prohibited copyright infringement.

Although it was widely accepted that users of the Internet downloaded music, videos and other

copyrighted materials, the business sector also had access to free software and other materials. Recording

industries and motion picture industries would be substantially affected if the copyright law did not

prohibit infringement and if the parties that pirated content were not properly penalized. The legislature

needed to address numerous provisions, including digital locks, fair dealing and protection of intellectual

property.

When the World Intellectual Property Organization Copyright Treaties were signed by Canada

(Standing Committee on Canadian Heritage, 2004) , it was expected that they would be ratified within a

short period of time. The government made numerous attempts to do so; unfortunately Parliamentary

interruptions prevented the implementation of the international treaties. Industry stakeholders, fearing further

financial losses, pushed for amendments to the Act. As technology evolved, and users had greater access to

copyrighted material, the outcry became louder. The concern was over intellectual property and proper

remuneration of works. Corporations and their representatives addressed numerous issues that affected their


bottom line. Users, they argued, would not pay for works if they were widely available at no charge on the

Internet. Provisions were needed to protect performers and artists and proper remunerations should be

ensured.

Nongovernmental organizations also spoke out about the proposed changes. Although protection

of intellectual property was important, they argued that it should not come ahead of users rights.

Education, preservation of culture and history, and privacy were only a handful of issues that these

organizations were concerned with. They unanimously agreed that access of the Internet and developing

technologies in education was extremely important and would provide students with means to remain

competitive on the international level. Moreover, they were concerned that an amended Act would

prohibit preserving of national archives and thus impact future Canadian generations.

The federal government, hoping to appease most stakeholders, began further research on the

impact that the proposed legislature may have on the public and private sector. Over a span of ten years,

Industry Canada and the Department of Canadian Heritage funded numerous studies that addressed the

impact of new technologies and potential effect of an amended Copyright Act. Furthermore, stakeholders

were invited to address their concerns in person or in writing. Industry and nongovernmental

organizations addressed the government and proposed changes that would benefit their agenda. When Bill

C-11 received Royal Assent in 2012, a majority of stakeholders accepted it without much protest.


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