Copyright in Canada

When it all started…

The exponential growth of the number of books in Europe since the advent of movable type created an urgent need for protection of both author and publisher from piracy. The State of Anne, enacted in England in 1710, was the world’s first copyright law. This Act introduced for the first time the concept of the creator of a work as the owner of its copyright, and outlined fixed terms of protection (“History of Copyright”).

In 1790, the Copyright Act that is closely identical to the Statute of Anne was enacted as the first American copyright law. Prior to the 19th century, copyright regulation remained uncoordinated on the international level. National copyright laws could only provide protection to authors within the country and were of increasingly limited in utility due to the piracy that occurs beyond the nation’s borders. In 1878, French author Victor Hugo led a major movement towards international copyright protection and formed Association Littéraire et Artistique Internationale (AIAI). The association advocated the author’s right to his work is a property right. The Berne Convention was developed in 1886 at the instigation of Victor Hugo to establish international standards for copyright protection. The prominent amendment of the treaty was to extend copyright to unpublished works, and to eliminate the requirement for registration. Following the United States’ adoption of the agreement in 1988, the Convention has been adopted by almost all nations of the world (“A Brief History of Copyright”).

In 1996, the World Intellectual Property Organization Copyright Treaty was adopted to provide additional protection for copyright due to the development of the Internet and information technology. The treaty ensure computer programs are protected as literary works. The agreement also prohibits circumvention of technological barriers for using a digital good in particular ways, which the rights holders do not allow (“WIPO Copyright Treaty”). The treaty has been ratified by 94 states as of February 2016.

Relationship between copyright and technology

When we look at the timeline and compare the technological and legal developments, we can see a clear correlation between the two (“Teaching Copyright”). Since the enactment of Statute of Anne, we see consistent additions to international copyright laws, starting with written works. After the invention of television and other technologies, the categories of protected works increased. The copyright law gets updated alongside technological advances to stay up-to-date.

Almost every new creation is an advancement of past innovations. With this being said, it can be very difficult to create new technology or written works, without the potential of copyright infringement.

A common mistake made by many people is that using copyrighted text is legal by simply adding a reference or crediting the author’s work. Although referencing the work of others does prevent us from plagiarism, we may still be accused of copyright infringement (“Education World”). A common rule of thumb is that, when in doubt, assume that all work is copyrighted and needs explicit permission to be used. The reason why it is safe to assume that a written work has copyright protection is because, as stated in the Copyright Act of Canada, “the author of a work shall be the first owner of the copyright therein” (“Legislative Services Branch”), which is effective once an idea, song, poem, among others, has been recorded in a tangible format.

It is argued that these limitations to the creation of new or similar works limits the creativity and freedom of experimentation of visionaries, where as some entities (such as entertainment industries) argue that they cannot survive unless intellectual property laws are strengthened to meet the threat of new technologies and the widespread theft that occurs over the Internet (“Depoorter” 1835). One could agree that copyright is important to the benefit of the author to be properly compensated for their work. However, it is safe to say that most of the public would probably find the duration of a copyright to be exaggerated as the duration of a copyright can last up to 95 years after the death of the author. Copyright was originally designed to restrict publishers from exerting too much control over information, whereas today it sets constraints on individuals from creating new works.

Another serious constraint is the courts’ interpretation of “fair use” regarding copyright. The “fair use” defense to copyright infringement allows for small parts of a work to be copied.

However, the amount or size of the part of the work that is allowed to be copied is not well-defined, and often authors try to narrow this window as much as possible, which can have damaging effects on creativity. The following is an example of how copyright can become a major problem for creative work that imposes even the slightest copyright infringement.

In 2010, an employee from Webcopyplus took a photo from the web and posted it on a client’s blog to enhance a promotional article. Several months later, a call was received by a lawyer issuing the removal of the photo from the website and local storage, and demanding a damage settlement of almost $4,000. A settlement was made to the amount of $1,925, which included a payment to the copyright holder and his lawyer (“Webcopyplus Copywriter”). If we think about it, a demand of $4,000 for damages for an image worth potentially around $10 on the web seems ridiculous. However, given the unusual capabilities of copyright infringement penalties, cases like these are very common. If we look a little further, we can see companies that see value in using these opportunities for monetary purposes, or in other words, one could say that it seems like companies have been created that use “Copyright Lawsuits as a Business Model”.

An example of a company that is built on this model is Righthaven, which is located in Las Vegas. Righthaven searches for sites that post articles from selected publishers, buys the rights to those works, then sues the sites’ owners for infringement (“Los Angeles Times”). This clearly shows that the copyright laws are not very effectively set up to prevent such actions, because this is not why copyright laws were created in the first place. Copyright laws exist to protect the work of the copyright owners from unauthorized use, and not to use as a business model and to hunt for any minor infringement with means of financial gains.

Copyright in the Canadian context

History of Copyright Law in Canada

The modernization of Canadian copyright law is an ongoing process. Canada did not have its own copyright law until the Canadian Copyright Act came into force in 1924. However, the modernization of the Act did not begin until 1988 (“Government of Canada”).

Due to the new developments in technology such as the innovation of computers, photocopiers, and media recording devices, the law has to be updated accordingly. Therefore, the federal government engaged in numerous studies of copyright reform in early 1950s. Significant government studies that include A Charter of Rights for Creators, led the initiation of a copyright modernization process, implemented in two phases (“Copyright Law in Canada”).

First Phase of Reform

The original Copyright Act was amended in 1988 by Bill C-60, which addressed legal protection for computer programs, enhanced moral rights, elimination of mandatory licences for the recording of musical works, the right to exhibit artistic works in public, increased criminal sanctions, the creation of a new Copyright Board, and the introduction of a new procedure to licence works where the owner could not be located (“Government of Canada”).

Following Canada’s participation in the Canada-U.S. Free Trade Agreement in 1989, the Copyright Act was amended to include a requirement that cable and satellite companies pay for the retransmission of works included in distant broadcast signals. The concept of “communication to the public” from broadcasting was also expanded to include all forms of telecommunication. The Canadian copyright law was further amended in 1993, following the passage of Bill C-88, to ensure all transmitters were liable for royalties and redefine “musical work” to clarity that the Copyright Act covered both graphics and representations of music (“Chronology of Canadian Copyright Law”).

Additional changes were implemented to the Copyright Act when the North American Free Trade Implementation Act was reinforced in 1994. These amendments include a rental right for sound recordings and computer programs and the increased protection against the importation of pirated works. In 1995, protections under the Canadian Copyright Act were extended to all World Trade Organization countries and new provisions were implemented to protect against unauthorized recordings and transmissions of live events (“Chronology of Canadian Copyright Law”).

Second Phase of Reform

The enactment of Bill C-32 completed the second phase of copyright revision in Canada. The bill introduced new remuneration rights to producers and performance of sound recordings when their sound recordings are broadcasted by radio stations and in public places, a compensation system for private copying, and a statutory damages regime (“Government of Canada”).

Recent copyright law changes and events of copyright infringements in Canada

The federal Copyright Modernization Act was recently updated (in 2015), requiring ISP’s and website hosts to relay letters from copyright holders to customers associated with the unique IP address where illegal downloading occurs (“CTV News”). This was done due to the fact that Canadians are accustomed to illegally downloading copyrighted material on a massive scale without facing many consequences. This is not from “unknowingly” downloading copyrighted material, but rather knowingly downloading them, such as movies and music. As a result of this update in the Copyright Modernization Act, the copyright holders have the option of issuing lawsuits to the respective users, which can result in suits of up to $5,000 for downloading copyrighted material for personal use, or up to $20,000 for downloading that leads to commercial gain (“CTV News”). In most cases, issuing a lawsuit to a single person is not worth the cost of litigation, however it may be worthwhile for them to issue lawsuits to a large number of people at once.

With this recent addition to the Copyright Modernization Act, copyright holders have more control over their work. For the copyright holders, this is a very beneficial advancement in the copyright law, which I believe to be a good thing as well. The notification letters sent to the subscribers from the ISP’s serves as a “warning” for them, and is not a lawsuit or settlement request. It is expected that this warning letter will be sufficient for most subscribers to slow down or stop with the illegal download of copyrighted material, and hence one could say it to be a scare tactic. On the downside though, statistics show that in the U.S. and Britain, illegal downloads are still high in those countries (“Canada’s New Online”). However, in Canada it is unclear if this has made a large impact so far in terms of illegal downloading, but it has removed the loophole of using the above mentioned scare tactics to easily demand settlement from frightened customers.

One of the issues faced in many parts of the world in recent years, such as the United States and Britain, is copyright trolling. This has caused quite a controversy and considerable anger from courts, ISP’s, and subscribers. Copyright trolling involves copyright holders to directly send legal letters alleging copyright infringement and demanding thousands of dollars from subscribers. The average person is not very well informed on copyright laws, and due to the fear of further legal action, a large portion of the subscribers would rather pay the settlement than to fight in court. This type of copyright infringement allegation became a problem until 2012, where a U.S. film company filed a lawsuit demanding that TekSavvy, and ISP, send a list of names and addresses of thousands of its subscribes that were allegedly thought to have committed copyright infringement. TekSavvy however, before complying with this request, took the matter to the Canadian Internet Policy and Public Interest Clinic (CIPPIC), who then took this to the court’s attention. The federal court authorized the release of the subscriber names, however the court also put in place several safeguards to protect against copyright trolls who might take advantage of this loophole. One of the safeguards is for the court to review and approve of the accusation and settlement letter prior to its distribution to the subscribers, as well as including a message in bold type that “no Court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages” (The Star). These safeguards will protect subscribers from illegitimate and unreasonable lawsuits through these scare tactics by ensuring that the court is actively involved in all cases of copyright infringement lawsuits.

My perspective and thoughts

As demonstrated so far, there are many great improvements made to copyright acts, both in Canada and internationally. There are also many challenges that must be evaluated and resolved. As I have mentioned before, the term “fair use” (also known as “fair dealing” in the Copyright Act of Canada) is not clearly defined, which provides the copyright holder with more rights than should be possible. I believe that this term should be more clearly defined, with clear guidelines (or restrictions) as to what exactly this means. Below I will list a few sections from the Copyright Act of Canada, demonstrating some of the terms that need a clearer definition.

  1. Under section 27.2.b (from Part 3), it is stated that “It is an infringement of copyright for any person to distribute to such an extent as to affect prejudicially the owner of the copyright”. In this clause, it is not stated clearly what is meant with “affect”. If laws are not clear and concise with their wording, it provides people with the ability to twist them to a certain degree to their benefit. In this particular example, it is not clear whether the “affect” that is meant here refers to finances, emotional traumas (which also result in many lawsuits), degradation of quality, or potentially others. I believe that this should be revised to be more precise as to prevent any misuse of the term.
  2. Under section 29.22.1.e, it is stated that “It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if the reproduction is used only for the individual’s private purposes”. Here it is not clear what is meant as private purposes. Questions that one could ask is, if I reproduce a written work for myself and use it in a group study at home, is this considered copyright infringement or is it fair use? Does this only apply when I am by myself when using this document? I believe that this also needs a clearer explanation of what is meant as private purposes.

I believe copyright is a great mechanism to protect one’s work from being distributed without permission to the financial benefit of the creator, however, due to some loopholes and flaws in copyright laws, it does provide the opportunity for copyright holders to misuse them, which can limit the creative freedom of people. Another aspect of copyright that I believe to be worth considering is to better educate the population regarding copyright infringements. For example, illegal movie and music downloads, which is one of the most common infringements, most of the population knows that this is against the law, and if caught, they could face potential lawsuits or other type of penalties. However, not many people are aware that randomly taking images, or copying parts of documents, and using them on their websites, social network profiles, or forums, may also violate copyright laws. This I believe is a matter of better educating the general population on the topic.

One of the main issues, in my opinion, that require attention and some sort of reform, are the lawsuit dollar amounts that are involved in many cases. There have been many occasions where less fortunate people have been caught with a few single downloads, and as a result end up receiving lawsuits not just in the thousands, hundreds of thousands, and even millions of dollars, which in most cases results in them being in a lifetime of debt or bankruptcy. One example is of a graduate student from Boston University. He was accused of illegally downloading and sharing 30 songs. Under the federal law, the four record labels involved were entitled to $750 to $30,000 per infringement, and if it was realized that the infringement was done willfully, they are entitled to up to $150,000 per infringement, which in this case the jurors could have issued a suit of $4.5 million. The dollar amount for the settlement that was agreed upon was $22,500 per song. The student added that, if the verdict stands, that he would file for bankruptcy. In the following 5 years, the number of such cases surpassed 35,000. I believe that there needs to be a more reasonable upper limit for these lawsuits that are directed to the general public, because in most cases, the average person would be unable to settle these.

References

“A Brief History of Copyright.” A Brief History of Copyright. Web. 9 Mar. 2016.

“A Project of the Electronic Frontier Foundation Law and Technology Timeline” Teaching Copyright. Web. 22 Mar 2016.

“Canada’s New Online Copyright Protection Laws Now in Effect.” Canada’s New Online Copyright Protection Laws Now in Effect. Web. 01 Apr. 2016.

“Canadian Court Ruling in Teksavvy File Sharing Case a Blow to Copyright Trolls: Geist | Toronto Star.” The Star. Web. 01 Apr. 2016.

“Copyright Act (R.S.C., 1985, C. C-42).” Legislative Services Branch. Web. 29 Mar. 2016.

“Copyrights and Copying Wrongs.” Education World. Web. 25 Mar. 2016.

“Copyright Law in Canada: An Introduction to the Canadian Copyright Act | Mapleleafweb.com.” Copyright Law in Canada: An Introduction to the Canadian Copyright Act | Mapleleafweb.com. Web. 03 Apr. 2016.

Depoorter, Ben. “Technology and Uncertainty: Shaping Effect on Copyright Law” University of Pennsylvania Law School. Web. 22 Mar 2016.

“Digital Copyright Canada.” Chronology of Canadian Copyright Law. Web. 01 Apr. 2016.

Healey, Jon. “Observations and Provocations from the Times’ Opinion Staff.” Los Angeles Times. 2010. Web. 23 Mar. 2016.

“History of Copyright in Canada.” Government of Canada; Canadian Heritage; Copyright Policy Branch. Web. 23 Mar. 2016.

“Illegal Downloaders Beware, You May Get a Shock in 2015.” CTVNews. Web. 16 Mar. 2016.

“International Copyright Laws and Their Effects.” History of Copyrights. Web. 10 Mar. 2016.

“Legal Lesson Learned: Copywriter Pays $4,000 for $10 Photo.” Webcopyplus Web Copywriter Blog. 2011. Web. 15 Mar. 2016.

“World Intellectual Property Organization.” WIPO-Administered Treaties: WIPO Copyright Treaty. Web. 22 Mar. 2016.

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