Mary Teresa Bitti of the Financialpost.com wrote an intriguing piece of article regarding Canada’s reformed copyright legislation, also known as the Copyright Modernization Act.
CMA, or Bill C-11, is on its way, marking the fourth attempt to reform Canada’s copyright laws. Making its way to the Senate, the bill is still raising many questions; as a matter of fact, stakeholders are already testing the limits of the bill. While many lawyers are specializing in copyright laws, the Chambers Global 2012 is preparing to recruit a team to represent the intellectual property space.
Barry Sookman – partner with McCarthy Tétrault LLP in Toronto and a Canadian authority and blogger on intellectual property law and copyright – admits that this is a sensitive subject for many. He’s also recognized as a Band 2 ranked practitioner for intellectual property law in Chambers Global 2012.
“When you get people all heated up and vexed about copyright and worried about moral panics, there are great divides – and to some extent that has impeded rational debate,” Mr. Sookman says.
While creators and rights holders argue that the new legislation is giving too much power to the users over the produced content, the users are focusing on maintaining the internet free and unburdened by copyright enforcement.
Another issue at hand is that there hasn’t been a copyright reform since 1997, and now Canada’s Government rushing to concoct one.
“Since 2000, the government has taken a series of important steps to create conditions to promote electronic commerce. It started by introducing privacy legislation to promote confidence in digital networks, then it introduced electronic commerce legislation, and most recently the government passed an anti-spam law again to promote the use of the Internet and get rid of hazards,” Mr. Sookman explains
“The one piece that had been missing is copyright. In that context, it’s all an attempt to recognize the world is changing. It’s becoming digital and this Act is an important step to build that framework,” he added.
Casey Chisick a specialist in intellectual property law with Cassels Brock & Blackwell LLP that represented both rights holders and users, believes that Bill C-11, as well as its predecessors Bill C-32 are taking the wrong approach. He is ranked as a Band 2 practitioner in Chambers Global, while his firm, Cassels Brock, is recognized as Band 4.
“My view is that these bills have eliminated some of the most modern aspects of the Copyright Act we already had and that’s got nothing to do with digital technology,” he said.
“In 1997, in the last major round of copyright reform, the Liberal government of the day introduced a whole series of reforms that facilitated collective administration of copyright. Secondary use of copyright is almost inevitably about a series of highvolume, low-revenue transactions that no individual rights holder could practically manage to track or economically afford to enforce. That’s the function of a collective society. Bill C-11 seriously impairs and reduces the scope of what collective societies such as Access Copyright are able to do for the benefit of their rights holders.”
He also claims that the government has failed to fulfill its promise to balance the needs of both rights holders and users.
“From an individual rights holder’s standpoint, it’s never been more difficult to enforce individual copyright.”
With so much intellectual property flying around the web, can we talk about copyright protection? Mr. Sookman answers this question:
“If the laws do nothing to help promote the digital exchange for value then it’s a problem. When governments enact legislation that can support the market, the evidence shows that these laws work. Does that mean there is an iron-clad way to prevent all unauthorized file sharing? No. But this is not about getting the very last person to stop file sharing. It’s about giving the creative industries a chance to compete on an even footing because you can’t compete with free.”
Mr. Chisick opinion is that focusing on remuneration versus control is the best way to do that.
“The answer I suggest would have been not only to maintain but to expand the availability of collective licensing solutions or alternative methods of compensation for copyright that reduce the scope of individual enforcement or licensing but increase the scope of other ways rights holders can earn money,” he said.
Claude Brunet – head of the copyright and entertainment team at Norton Rose Canada LLP – is ranked as a Band 3 practitioner for IP law in Chambers Global 2012. Mr. Claude agrees with Mr. Chisick and adds:
“The goal of any copyright act is to organize the marketplace for works of the mind. Speaking on my own behalf and no one else’s, all this Act does is introduce exceptions to copyright protection.”
“We are choosing control and litigation over a system of seamless remuneration, which we had in place. Bill C-11 creates an environment where the creator and the user are pitted against one another. It’s a piece of legislation that yells, ‘So sue me.’ We no longer make things. We create works of the mind. If we listen to ISPs and to equipment manufacturers, works of the mind are worth zilch. So what sort of economy are we building here?”
With so much controversy, Canada’s Government is facing the backbreaking task of finding a suitable solution for both rights holders and the public, and Bill C-11 is not the one.