Barring a federal election, Bill C-61, an Act to Amend the Copyright Act, should receive second reading this fall. Key topics addressedin the controversial Bill include: file sharing and format shifting,circumvention of technological measures in digital material, liabilityof ISPs, copyright in photographs and statutory damages availablefor infringements by individuals.
The Bill has generated significant debate and some commentators are concerned that it follows too closely the American approach to copyright protection in the digital age, and accordingly grants excessive protection to rights-holders at the expense of users of copyrighted materials. However, others see the Bill as necessary to create a predictable copyright regime that will attract business to Canada.
Among other things, the Bill seeks to prohibit individuals from sharing digital music by granting additional rights to makers of sound recordings to control the sale and distribution of their works, including the sole right to communicate a sound recording to the public via the Internet. The Bill would allow individuals to transfer legally acquired musical recordings from one format to another for private use, referred to as "format shifting." For example, individuals would be able to copy legally obtained musical recordings onto their MP3 player.
However, there are numerous restrictions. Most notably, because the music must be legally obtained and not borrowed or rented, copying music from a friend's CD would not be allowed. Moreover, the individual must own the medium on to which the music is reproduced and the copy must not be distributed, even to friends for their own private use. Any copies made must be destroyed before the individual gives the sound recording to another person. Finally, it would not be permissible to tamper with a technological measure designed to prevent copying, often called a "digital lock."
Similarly, the Bill permits format-shifting for photographs and works in books, periodicals, newspapers and videocassettes on similar terms. DVDs are not covered by the exception so it would seem that copying a DVD to another medium, even if there is no digital lock to prevent doing so, is not permitted, whereas digitizing one's VHS collection would be.
The Bill seeks to support businesses like iTunes that distribute digital materials on the Internet by providing that the terms to which their users are bound will govern in the event of an inconsistency with the Bill.
Recording broadcast television or radio programs using a personal video recorder ("PVR") or any other broadcast recording device will be permitted under the Bill provided that the program is viewed only once and is kept "no longer than necessary in order to listen to or watch the program at a more convenient time." Furthermore, the copy made must be for private use and cannot be given away. Of course, it would be illegal to circumvent a technological measure to record the program.
Commentators have criticized the fact that the "time-shifting" proposal makes it illegal for a person to create a library of his/her favorite shows even if maintained strictly for private use. In addition, while a show can be recorded using a PVR, if an individual forgets to do so, he or she cannot later download the show from the Internet using a peer-to-peer BitTorrent application.
As discussed above in relation to format shifting, for individuals who subscribe to video-on-demand services, the terms governing such services will govern in the event of an inconsistency with the Bill.