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Friday, June 25, 2010

My Take on Bill C-32 (Part 11)

Okay folks, we're in the home stretch!

So let's not dilly-dally.

Just to make it easier, you can read the new, proposed Bill C-32 here and the original Copyright Act here.

Also one reminder: All links provided below are for comparison purposes and they load, where possible, the section that's available in the original Copyright Act.

We've moved beyond 'Digital Locks' into "General Provisions" with section 41.23(1) "Protection of separate rights".

This one seems to say that the owner of 'any copyright' -- or any person the copyright owner has given special privilege to (via right, title, interest by assignment or grant in writing) -- may act as a party in [infringement] proceedings in their own name to protect/enforce any right they have or have been given and are entitled to "the remedies provided by this Act".

So... basically, even if you're not the copyright owner, if you've been granted a specific 'right' and that 'right' is breached by an infringer then you can take them to court over it?

In 41.23(2) "Copyright Owner To Be Made Party" it says if someone other than the copyright owner takes that infringer to court then the copyright owner is be made a party to (brought into?) the proceedings... unless:

"(a) in the case of proceedings taken under section 44.1, 44.2 or 44.4;

(b) in the case of interlocutory proceedings, unless the court is of the opinion that the interests of justice require the copyright owner to be a party; and

(c) in any other case in which the court is of the opinion that the interests of justice do not require the copyright owner to be a party."

41.32(3) "Owner's Liability For Costs" says that the copyright owner is not liable for any costs unless they take part in the proceedings.

Subsection 41.32(4) "Appointment Of Damages, Profits" says that if the copyright owner is made party to the proceedings the court will dole out the damages or profits (referred to in subsection 35(1)) between them -- subject to any other deals/agreements made between the person who started the proceedings and the copyright holder -- however the court feels is fair or 'appropriate'.

In 41.24 "Concurrent Jurisdiction Of Federal Court" says pretty much exactly that.

"The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under sections 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act."

Now we head into a new section "Provisions Respecting Providers Of Network Services Or Information Location Tools"

Or PRPONSOILT for short.

Subsection 41.25(1) gets us rolling with "Notice Of Claimed Infringement" that says that a copyright owner may send a notice of claimed infringement to a person who provides:

"(a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;

(b) for the purpose set out in subsection 31.1(5), the digital memory that is used for the electronic location to which the claim of infringement relates; or

(c) an information location tool as defined in subsection 41.27(5)
."

Now, I'm guessing this where they're saying that it's okay to send infringement notices to someones ISP? I'm not sure, the language seems kind of fuzzy here.

41.25(2) "Form an content of notice" Says all the things you have to include in your 'notice of claimed infringement'. It must be in writing and shall: state your name, address and any other vital contact info; identify what work was infringed; state your relation to the work (owner, rights-holder, etc); specify location data for the electronic location (most likely IP address) where the infringement happened; specify the actual infringement; specify the date and time of the claimed infringement and contain any other necessary information as per the regulation.

Now here's where I start to see a problem: This kind of addition seems entirely there for the RIAA's, MPAA's of the world. No average citizen copyright holder is going to get access to this kind of information, this is the kind of data that you get when you've got millions of dollars of holdings and can call up Bell Canada or Rogers or whatever and say 'yeah, I need this data'.

I mean, I get that by and large it's not the 'little guy's' copyrights that are getting molested out there, but still... it seems to make it pretty hard for regular people to adequately protect their copyrights.

Section 41.26(1) "Obligations Related To Notice" says that anyone who receives a notice of claimed infringement (that's properly filled out) shall, "on being paid any fee that they've been lawfully charged for doing so":

"(a) without delay forward the notice elec- tronically to the person to whom the electron- ic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and

(b) retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.
"

This seems to charge the ISP with making sure that they forward the 'infringement notice' to the appropriate user.

41.26(2) "Fees Related To Notices" says that The Minister can, by regulation, "fix the maximum fee that a person may charge for performing his or her obligations under subsection (1)" and that if there is no maximum fixed by regulation then they may not charge ANY amount under that subsection.

41.26(3) "Damages Related To Notices" says that a claimants only remedy against a person who doesn't pay up after being served with an infringement notice is statutory damages. The amount of which is no less than $5000 but no more than $10000 -- whatever amount the court feels is 'just'.

41.26(4) "Regulations - Change Of Amounts" says that the Governor In Council can regulate the increase or decrease the minimum and maximum statutory damage amounts in (3).

And that's it for now - go out and enjoy the weekend! Make sure you don't get arrested ;)

We're going to finish this up on Monday!

Cheers,
Brandon

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