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Wednesday, June 09, 2010

My Take on Bill C-32 (Part 1)

Though the 'Tues' for voting has long since passed, I thought the
message was still rather sound

SUMMARY
This enactment amends the Copyright Act to

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

Right off the bat I just want to say this to my Canadian Government:

Thank you for posting the entire bill online for us to read and for breaking it up into sections... but please, please, please make it a more interactive document.

I don't know if it's ignorance or contempt for the common citizen or what but would it kill you to provide direct links to the sections of the act that are being amended so that we can compare what used to exist to what changes are being made? Maybe have a little pop-up window or something.

I know I shouldn't complain, but come on, for context's sake... pretty please?

Or at least - if you want to do the bare minimum - put a direct link to the old Copyright Act or something... I've been hunting around on the site for 5 minutes now and I can't find it. Easy fix: Right off the top say 'An Act to amend the Copyright Act' and then make Copyright Act a hyperlink. I figure that since it's such a big deal right now there'd be a link to it right on the home page of parl.gc.ca. There's not.

Also: using the search engine to search for 'Copyright Act' does not, in fact, actually bring up the Copyright Act but all the Bills that have popped up over the years that have tried to amend it. Can you fix this too please? Put the Act we're looking for first, then maybe a nice chain beneath it of all the Bills that've changed or tried to change it in some way. It'd make it a heck of a lot easier to navigate.

Just saying.

SIDE NOTE: Kudos to you for your impressive 'A to Z' index! There's a crap-ton I don't know about how my own government works and this really looks like it's useful. There's no mention of 'Acts' or 'Copyright Acts' or 'Really- Long-List-Of-Important-Acts-That-Every-Canadian-Citizen-Should-Take-The-Time-To-Read'... but still, great work!

So, I finally found the original Copyright Act. You know how? I Googled "Canadian Copyright Act", went to Wikipedia's Article on "Copyright Act of Canada" and a link to it in the 'External Links' section. Then I click the link, am taken to the department of Justice's site, where they say all their acts have been moved to another site. Still, undaunted, I search the site for "Canadian Copyright Act" and find it as result #8 in the search results.

I click the link and BEHOLD (PDF) or BEHOLD (HTML -- Yay! LINKS!)

Bad form, Canadian Government that I pay a crap-load of taxes to.

Bad form.

EDIT (yes, already!): I've just realized that if you go to the VERY front page (like, 'English' or 'French') there's an 'Important Notices' link. If you click on that and then click on 'Copyrights' it takes you to a direct link to the Copyright Act. So... yeah. *facepalm* Mea Culpa there for not checking a section called 'important notices' - but still, it wouldn't hurt to link to it in the new Bill.

Anyways, moving on.

Okay, so, change of tactics -- now I have to have the original Copyright Act up, the Modernization and my blog.

Glad I got that wide-screen monitor.

All this and I haven't even gotten to the freaking Bill yet. Thank you Canadian Government.

Ugh.

Okay, try this again.

Right, So, off the bat the Copyright Modernization Act wants to update the definitions of 'moral rights' and 'treaty country'. Sure... sounds like a good idea to me... the old bill is from 1985, the world has changed - new treaties, heck, new countries exist. Go get'em, tiger. They want to add that

'WCT country' = a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996;

and 'WPPT country' = a country that is a party to the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996;

(Note: I'm not going to read these treaties... anyone care to sum up their significance?)

Moving on, now they want to clarify a few things.

"For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public."

Sounds pretty distinctly digital to me. Sure thing.

But this next one, covered in Subsection 3(1) of the Act (again, not linked! Arg!)

Subsection 3(1) of the Act is amended by striking out “and” at the end of paragraph (h), by adding “and” at the end of paragraph (i) and by adding the following after paragraph (i):

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

Okay, so section 3 of the act deals with Copyright in Works. Basically saying that holding or having copyright in a work allows you to do the stuff listed in 3.1 (a-i). This new addition wants to add a (j) to it that allows us the right to 'sell or transfer ownership' of a physical object. ie, if I'm reading this right, selling a CD or DVD of music you make is cool, selling a CD or DVD of someone else's... and claiming that it's your own... is not cool? And 'transfer of ownership' I guess that means like if you sign a record contract with a studio, they become the 'owners'? Does that mean that, with this new definition, an organization like the RIAA can come after the makers of mash-ups and such?

Okay, so next up they want to replace Subsection 5 (1.01 to 1.03) in their entirety. This section deals with 'Protection for older Works'. It seems they want to add the WCT Country into the mix. If your copyright exists in a different country and expired there you don't get copyright protection (extension?) in Canada as an effect of the act? Makes sense.

Section 10 of the Copyright Act -- which dealt with the 'Term of Copyright In Photographs' -- is to be repealed. It has a lot of old language (Negative or 'plate'... wow) but still, I dunno, I think you should still have access to copyright of an image you take. That said, I wonder if this section was made redundant by the nature of the language of the new (j) amendment to 3(1)? Or... did they just kill the ability to have copyright on a photograph??

Subsection 13 (2) 'Engraving, photograph or portrait' of the Act is also to be repealed. Basically in this section it stated that if you ordered a portrait/photograph/engraving to be made and paid for it, the copyright was yours. Does that mean if I go to Sears and get a 'family portrait' done, the copyright on it is mine? Does that also mean, with the repealing of said subsection that I no longer have that copyright? Who does it then default to?

Hrmmm...

Now we're getting into 'Performers' Rights'.

First up, updating the heading to be "performers'" instead of "performer's" and to also include "and moral rights in Performers' performances".

Section 15 "Copyright In Performer's performance" is getting an amendment in the form of section (1.1) - it basically looks like a re-structuring where they're updating subsection (1) and adding a Subsection (2.1) and (2.2).

The wording largely seems the same as Section 5 at first but the amendment deals more with performances in regards to telecommunication - specifically how as a performer and copyright holder of said performance you have the right to communicate it, perform it in public, fix it in any material form, reproduce it, rent it out... and then there's this:

"to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that member of the public and to communicate the sound recording to the public by telecommunication in that way; and"

Looks like performers now have the 'right' to put their sound recordings online and share them with others. Why does this new amendment feel like it's 10 years old? Why is a 'performer' an 'audio-only' thing? No love for stand-up comedians/sketch artists/etc. (which are HUGE online right now)? We've moved far beyond 'sound' recordings... we have YouTube and Funny Or Die now. Can this not be fixed? It still feels incredibly limited.

Next up (those Section 2.1 and 2.2 bits) is all the new limitations that come into effect -- making sure you've made said performance in Canada or a WPPT Country.

Also adds a Section 4 which takes off from Section 15.3's bit on "Publication"

"The first publication of a sound recording is deemed to have occurred in a WPPT country, despite an earlier publication elsewhere, if the interval between the publication in that WPPT country and the earlier publication does not exceed 30 days."

Not sure how many people that will effect, but something worth keeping in mind.

Section 17 deals with 'Cinematographic works' and there's a huge addition in the form of 'Moral Rights' with the addition of section 17.1. As I'm not a performer, a lot of this sort of goes over my head... but if you consider yourself to be a performer here in Canada then you might want to give this section a read through 'cause I have absolutely no idea whether any of this is helping or hindering and by how much. Though for a section on 'cinematographic works' it has a lot to do with 'audio' and 'sound recordings'. I'm thinking this has more to do with people who film/produce DVDs of concerts?

Section 18 which deals with "Copyright in sound recordings" also adds an amendment for putting your sound recordings on the web and selling them on a 'tangible object'.

Subsection 18(2) "Conditions for copyright" in the original Act has a few changes. Mostly adding that in addition to all the other countries you can now also have been a citizen of a WPPT Country (or, if a corporation, have your headquarters in one of those countries) at the TIME of the first 'fixation'. Ie. Your CD/DVD being pressed, etc.

They also add subsections (2.1), (2.2) and (4) to 18 that contain more conditions for copyright pertaining to having been recorded and/or published in a WPPT Country.

Section 19 deals with your 'Right to remuneration' and it's being replaced by:

"(1) If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission."

So, since 15(1.1) reads:
"to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that member of the public and to communicate the sound recording to the public by telecommunication in that way;"

And 18(1.1)(a) reads:
"to make it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public and to communicate it to the public by telecommunication in that way;"

Are they saying that you've got a right to expect payment for your work as long as you don't put it online? A stilted reading, perhaps... but still, I wonder.

Subsections 19 (1.1) and (1.2) deal with remuneration for your work in other (Rome Convention and WPPT) countries.

An interesting little thing I've noticed is that the 'English version' of the act gets this little tidbit:

(3) The portion of subsection 19(2) of the English version of the Act before paragraph (a) is replaced by the following:

"(2) For the purpose of providing the remuneration mentioned in this section, a person who performs a published sound recording in public or communicates it to the public by telecommunication is liable to pay royalties"

And yet here's another interesting twist: With the new sections 19.1 and 19.2 they now consider your work to be 'published' if you post it online (at least when it comes to expecting remuneration - guess that throws my earlier theory out the window).

"Despite subsection 2.2(1), a sound recording that has been made available to the public by telecommunication in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public, or that has been communicated to the public by telecommunication in that way, is deemed to have been published for the purposes of subsection 19(1)."

Section 20 'Conditions' gets updated with subsections (1) (1.1) and (1.2) that state specifically that your right to remuneration only applies if you're citizen or permanent resident (or have your headquarters in) Canada, Rome Convention or WPPT countries.

Subsections 20(2) and (2.1) basically say the same thing about 'Exceptions' made (now with the addition of those hailing from a WPPT country).

Subsection 20(3) is just updated to reference subsection 19(1.1) instead of the original 'section 19'. --

Subsections 22(1) and (2) are the same but have had WPPT country grafted into them.

Pretty much all of Section 23 "Term Of Rights" has been changed with a new subsection dealing with 'a Performer's performance'. Now your copyright on a performance will be:

"(1) Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,

(a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; and

(b) if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 99 years after the end of the calendar year in which the performance occurs."

And on that note, we'll draw the curtain for today - there's a lot left to cover and... yeah, that was painful experience.

Reading through this thing, trying to make sense of it all, where everything was referencing back to and how it all fit together gave me one hell of a headache... I don't know how people do this all day and every day for a living... but now I know how Tylenol stays in business.

One thing I'm noticing throughout this document is a whole lot of 'copy and paste' with minor edits... entire sections with only a few words changed. There's lots of little bits of clean-up work here too, changing one number or name means that you have to make noted changes to whole other chunks of text, just to update the new references.

I gotta say, it's no wonder people don't read this stuff... it's sort of maddening and labyrinthine in its complexity, reading through it all trying to see what changed and how much or what makes it different simply by the context of the passage being a part of section 2 versus section 8. Wow.

Anyways, tomorrow we're going to be getting into some of the more interesting stuff like 'infringement' and 'Non-commercial User-generated Content'.

But for now my brain needs to rest... I can't believe how tiring it is to read this stuff.

Anyone got any tips for reading 'Legalese' without having to resort to a morphine drip?

Cheers!
Brandon

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