Woodrow Wilson: One Isse Two Voices Series on Copyright

Copyright Law in Canadaand the United StateS:

Th Digital Challg

barry sookman

+

eric j. schwartz

2

InTroDuCTIon

Drawing on expertise rom both sideso the Canada-U.S. border, the

One Issue, Two Voices

seriesis designed to stimulate dialogue on policy issues that have asignicant impact on the bilateral relationship. This eleventhissue in the series is a special expanded edition that providesan up-to-date snapshot o how copyright regimes dierbetween Canada and the United States. Authors Eric Schwartzo the American law rm Mitchell Silberberg & Knupp LLPand Barry Sookman o the Canadian law rm McCarthy Tétrault LLP are leading international copyright experts.Together they examine how our two countries are dealing with the current issues and debates in the eld o copyrighttriggered by the new digital technologies.In recent years, copyright reorm has become an increas-ingly hot topic o discussion in cultural, academic, andlegal circles in both Canada and the United States. Today,

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One Issue

two voices

Issue

11

sepTember 09

one issue

TwO VOIces

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copyright laws, compliance, and enorcement vary signicantly between our two countries. For example,the United States, by implementing the 1996 WorldIntellectual Property Organization Treaties

and passingthe 1998

Digital Millennium Copyright Act

, has alignedits copyright regime with international norms

.

Canada,in contrast, has yet to implement the digital treaties andis still working on major revisions to update its own

Copyright Act

.Each author assesses the critical issues and debatescurrently in play in Canada and the United States. According to Schwartz, the key challenges that need tobe tackled are the twin goals o acilitating the legal dis-semination o ever more material to consumers while atthe same time protecting the rights o copyright authorsand owners. Sookman maintains that Canadian creativeindustries, due to the lack o an eective legal regimeprotecting digital copyright, suer disproportionately rom online inringement. Moreover, lax laws havediminished Canada’s international reputation amongthe G8 and other major trading partners.Both authors agree that a rigorous system or theprotection o copyright osters economic progress andtechnological innovation, encourages investment, andincreases competitiveness in the creative industries.The Canada Institute thanks the authors or theircontribution to our understanding o a controversialtopic in the ongoing bilateral dialogue. We are grateulto the Canada Institute on North American Issues orits support.

stephanie MLuhanpm cl (t),c ism 2009

Acronyms

DMCA

Digital Millennium Copyright Act

IDG

International Data Group

Ip

Intellectual property

Ipr

Intellectual property rights

Isp

Internet service provider

n&TD

Notice and takedown regimes

nAFTA

North American Free Trade Agreement

p2p

Peer-to-peer

pVr

Personal video recorder

rAm

Random-access memory

Tpm

Technical protection measures

TrIps

Agreement on Trade-Related Aspects o Intellectual Property Rights

uGC

User-generated content

usTr

United States Trade Representative

WCT

World Copyright Treaty

WIpo

World Intellectual Property Organization

WppT

WIPO Perormances and Phonograms Treaty

Issue 11

septeMber 09

3

1

In July 2009 the Canadian government launched anationwide consultation on copyright modernization.It asked Canadians ve questions about the changesthat should be made to the

Copyright Act

to best osterinnovation, creativity, competition, and investment,and position Canada as a leader in the global, digitaleconomy.

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In this essay I will address these questions by presenting a series o principles and specic recommen-dations or reorm.

background to copyright reorM

To understand the need or copyright reorm in Canada,some background knowledge is essential. For more thana decade, copyright reorm has been studied and debated,but Canada has nothing to show or it. Meanwhile,Canadians have had to endure outdated laws that do notadequately support the digital exploitation o creativeproducts. Canada’s outdated laws have hurt all sectors o the creative industries, including the creators and artists who rely on copyright or protection. These laws have alsodiminished Canada’s international reputation among theG8 and other trading partners.Canada has acknowledged since 1997 that it needsto adapt its laws to address digital technologies and theInternet. That year it signed the 1996 World IntellectualProperty Organization (WIPO) Treaties.

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Since then, atleast 12 government, department, and committee reportshave studied and made recommendations or reorm toaddress digital issues. The two departments responsible orcopyright, Industry Canada and Canadian Heritage, haveconsulted extensively with Canadian creators, businesses,experts, and citizens about reorm.

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In addition to ormalconsultations, there were signicant meetings o stakehold-ers in 2005 and 2008 ollowing the rst readings o BillC-60

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and Bill C-61

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—bills that were introduced intoParliament to amend the

Copyright Act

but which neverproceeded past that stage.

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In 2004 the Standing Committee on CanadianHeritage recommended reorms to the Act.

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In 2007 twoall-party government committees examining countereit-ing and piracy problems noted signicant deciencies inCanadian law and made important recommendations toaddress them.

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In 2008 the government’s CompetitionPolicy Review Panel urged reorms to bring Canada’s lawsinto the Internet era.

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Successive Canadian governments have acknowledgedthe need to modernize the Act and signalled that reorms were orthcoming. In 2007 the government, through ourCabinet ministers, acknowledged the importance o copy-right in promoting innovation and attracting investmentand committed to legislative reorm, including implemen-tation o the WIPO Treaties.

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In 2008 Canada committedthrough a multilateral declaration to modernize its laws todeal with digital issues.

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Three throne speeches since theturn o the millennium have promised reorm.

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In the absence o a certain and eective legal regimeprotecting digital copyright, Canadian creative industriessuer disproportionately rom online inringement. Theuse o peer-to-peer (P2P) networks is extensive in Canada,and unauthorized le sharing o copyrighted material is

Barry Sookman

1

copyright reorM or canada: what shouLd we do?

c  m  m  l’ m l l llmfl- i . M  m   m lm  m  c  ml  lll  .