In response to the heritage committee's request, the government tabled a statement in March 2005 that tried to outline conceptually, but with some degree of detail as well, what it proposed to do in the actual amendments that it was in the process of developing.
Rather than go through a detailed list, at this point I would refer you to the next slide, which describes Bill C-60--tabled three months later, at the end of June--and what it sought to do, again very much in keeping with the section 92 report and the status report that had been provided previously.
In terms of new rights and protections in the Internet environment, the bill would implement the new rights and protections found in the two 1996 WIPO treaties to the extent they were necessary. The key rights in that case are the making available right, the legal protection of technological protection measures, and the legal protection of rights management information. I'll talk about those briefly before moving on to a description of some of the other provisions.
The making available right, required by the treaties, would give rights holders, whether authors or the neighbours--that is, the sound recording makers or performers--the exclusive right to control the very appearance of their material online. In our own assessment of the state of Canadian law, and based on Supreme Court of Canada decisions, we came to the conclusion that the communication right that authors currently benefit from already integrates a making available right for authors. So no significant amendments were needed in that regard.
As far as the music producers and performers were concerned, while the activity of making available may be covered under the communication right that they enjoyed, which is only a remuneration right, amendments were needed to elevate the right to an exclusive right in the online environment. So there were some significant amendments required there.
As far as the legal protection of technological measures is concerned, this provision deals with the ability of rights holders to apply a digital lock on their material to ensure that people can make only non-infringing use of that material. The provision would bolster the use of these technologies by giving rights holders the ability to sue those people who would circumvent the digital lock, who would, without authorization, break through the lock. There were no such provisions in the act at that time--or now--so again, amendments were needed. The approach we took was to say that whenever somebody breaks that digital lock for an infringing purpose, then the rights holder would have a remedy.
Similarly, if somebody purports to provide a service to someone else where that service entails the breaking of the lock on behalf of someone else, and they knew or should have known that the service would be used to further an infringement of copyright, then they too would be subject to some kind of sanction.
The provision on rights management information deals with information that a rights holder may embed in the work--in the form of, say, an electronic watermark--so that their work remains identifiable and associated with them and the uses they allow.
Increasingly, these rights management information elements are included in systems that are known as digital rights management systems, that control the licensing of material and the uses that can be made in, again, a digital environment. But because that information is key to the operation of these digital rights management systems, rights holders would have legal recourse against those who would try to alter that information in a way that would permit infringement. And because the act didn't contain provisions in that regard, and still does not, the bill would have added these three elements. And those are, I would say, the three key elements of the WIPO treaties that required amendment.
Other amendments were also required, in our view. There is a need to adjust the term of protection for photographers to meet the requirements of the treaty, and for performers there was a need to recognize moral rights on their behalf. There was a need to introduce a new distribution right, which gives a rights holder the ability to control the distribution of their material in a tangible form. So we're not talking about online, we're talking about the actual CD or book, or what have you. A number of sort of ancillary amendments would nonetheless be required pursuant to the treaty. Those are the main treaty protections that the bill would address.
As well, the bill dealt with the copyright liability of Internet service providers by basically exempting them from liability when their main activity was simply to be an intermediary, to facilitate the communication of content between the actual provider of the content and the recipient or subscriber. As long as they didn't kind of alter the content or play a role in selecting out the content, they would be exempt.
They could also engage in certain activities that involved reproductions of copyright material, where this was done only to improve the efficiency of the Internet. They weren't necessarily interested in the material as such, but they were interested in allowing the Internet to operate more efficiently. To do this they make caches on certain websites that allow more rapid access without clogging up the arteries of the Internet, if you will.
By the same token, Internet service providers were expected to play a role in trying to curtail the infringement that was going on online, by participating in what we have called a “notice and notice regime”. Under that regime, if a rights holder sees that certain subscribers of a particular ISP are involved in some kind of unauthorized activity, then they could send a notice to that ISP, and then the ISP would be required to forward that notice to the subscriber. That way, the subscriber was put on notice that his activities had been detected.
The other obligation that would kick in at that point is that the ISP would be required to maintain information to identify the subscriber in question for a certain period of time, so that in the event of litigation between the rights holder and the subscriber, there was a way for the rights holder to ascertain who exactly was involved in this activity.
In effect, that speaks to one of the reasons why the intermediaries are involved at all: it's often very difficult to know who is behind some of these activities. A lot of people in the online environment go by certain handles and it's not possible to truly know who they are except with the help of the ISP. So that was the second major element of the bill.
The third major element of the bill relates to certain uses that were going to be permitted for educational and research purposes, and the bill had two major amendments. One was to allow for a form of distance learning, so that schools would be entitled to use the Internet as a means of transmitting lessons to students. By way of example, it may be the case that a teacher is standing in a classroom and the presentation that the teacher makes to the students is also webcast to remote students.
Oftentimes there are copyright materials that are incidental to the lesson that are being used to enrich the lesson. The act already allows for teachers to make certain uses of copyright material in their lessons. This would simply ensure that the teachers could also communicate via Internet to remote students and include those copyrighted elements.
A second aspect relating to education was the ability to transmit certain course material to remote students, provided the course material was already covered under a reprographic licence with an appropriate collective society. If the school had the ability to photocopy materials for their students and provide it to them in the form of course packs, then they could also transmit the course back to the student with the proviso that there be certain safeguards in place that didn't allow the student to do anything other than print off a copy. In essence, the Internet would just be another means of conveying the course pack to the student.
Finally, on the research side, the act currently allows for inter-library loans to take place in the following way. If I request a copy of a journal, an article of some kind from a library, and they don't have it, they can go to another library and ask them to provide the article to me. However, if they send it electronically, they can only do so to the requesting library--my library. Once it gets to my library, my library has to print it off and hand me a paper copy. Under the provisions that were proposed in Bill C-60, you wouldn't have this additional administrative step involved, that is, the providing library could send directly to me, the patron, a copy of the article. There again, the requirement was that the only thing I could do with it was print off a copy myself. It avoided the additional administrative step of having my library print off a copy and send it to me.
There were a number of other provisions related to photography. Right now under the act the first owner of copyright in a photograph is the person who actually owns the negative or the plate used to make the photograph; it is not the photographer. In fact, the person who owns the plate is deemed to be the author of the photograph. This was seen as being out of keeping with the treatment of other rights holders and so the bill would have changed these rules to make the photographer the author and first owner of copyright in photographic works.
There was a special case involving commissioned photographs, where, if I commission a photograph for money, then I'm deemed to be the first owner of the copyright in that photograph. Thebill would have changed this, but allowed me, as the commissioning person, to make certain personal uses of the photograph unless I had agreed to the contrary.
Those are the broad contours of what the billtried to achieve.
