Copyright bill gets first reading as fears grow over caching

Nasser Ashgriz

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Bill C-60 has now received its first reading in the House of Commons. The long-awaited bill is designed to meet the government’s commitment to short-term copyright reform issues, as well as updating the Copyright Act to meet the challenges and opportunities presented by the Internet (see Government announces long-awaited copyright reforms and Educators call for balance in Canadian copyright reforms).

The government stated that:

"The legislation is intended to implement the provisions of the 1996 World Intellectual Property Organization (WIPO) treaties, clarify liability for internet service providers, facilitate the use of new technologies for educational and research purposes, and harmonize the treatment of photographers with that of other creators."

Key proposals set out in the bill include:

• The introduction of the right of copyright holders to utilize protective rights management information and technological measures.
• The making available amendment, which would revise the definition of 'telecommunication to the public' to include "making a work available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them". In addition, the bill would proscribe several activities including circumventing or tampering with technological measures for the purpose of infringing copyright. It also provides that the copyright holder would have the exclusive right to decide who is allowed access to his/her material, possibly extending this to prohibit typical illegal peer-to-peer sharing activities.
• Exempting internet service providers (ISPs) from liability for simply providing internet-related services in the absence of actual knowledge of any copyright infringement, while at the same time requiring them to implement a "notice and notice" system where the ISPs would be responsible for forwarding notices received from a rights holder that a subscriber is hosting or sharing copyrighted material to that subscriber. In addition, the ISP would have to retain relevant information about the alleged infringement for a set period of time. If the ISPs failed to comply, then they would be held liable for statutory damages.

In addition to these main points, the bill also provides several new rights to copyright holders such as a reproduction right for performers, new moral rights for performances and the ability to control the first distribution of material in a tangible form. It would also adjust the term of protection for sound recordings and remove some existing provisions to allow photographers some rights in commissioned photographs.

However, critics have pointed out that the bill could make it illegal for search engines to cache web pages, potentially hindering public access to information. Moreover, the bill does not include any deterrent against making false claims, which could open the door to unwarranted lawsuits to remove content from the cache of search engines. It remains to be seen whether the bill will be amended to address these concerns. It is expected that the bill will become law early next year.