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Wednesday, June 30, 2010

My Take on Bill C-32 (Part 12): The Finale

Alright ladies and gents, here we are, the final push to the end of this thing.

It's taken a long, long time to get here... much longer than I'd originally anticipated but I have to say I'm glad that I've put in the time to do it. Even though it provided me with endless hours of brain cramps and even though there are still a boat load of things I don't quite understand... it's given me insight onto shores that I don't normally tread.

So, without further fanfare, let's get moving for the last time:

"Land Ho!"

Note: 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.

In 41.27(1) "Injunctive Relief Only - Providers Of Information Location Tools [now: 'ILT']" basically says that in an infringement proceeding against a 'provider of a ILT' that is found to be guilty the best you can hope for is an injunction.

That's right folks, no cash, just 'stop doing that'. Now, by 'information location tools' are they talking about search engines? Or news aggregation sites? Or... what?

Subsection 41.27(2) "Conditions For Application" says that subsection (1) only applies if the provider: makes and caches the reproduction automatically for the purpose of providing the ILT; communicates that copy to the public via telecommunication for the purpose of providing the information located by the ILT; does not modify the copy for anything other than technical reasons; complies with whatever conditions were set forth by the holder of the copyright when they posted it online (ie. Open copyright, etc); does not interfere with the 'lawful use' of the technology to obtain data on the use of the work.

41.27(3) "Limitation" says (I think) that if the provider receives a notice of infringement for a location but the infringing work has already been removed or deleted then they are protected under subsection (1) from any copies made of that work for 30 days after the day the provider receives the infringement notice.

41.27(4) "Exception" says all bets are off if the provision of the ILT constitutes an infringement of copyright under subsection 27(2.3).

And finally, they get around to telling us what an 'information location tool' is in 41.27(5) with:

"In this section, “information location tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network."

So... yeah, that leaves the door open for a whole lot of services... not just search engines.

Moving on to section 42 "Criminal Remedies" where they add some new wording onto subsection (3) "Power Of Court To Deal With Copies Or Plates":

New subsection (3.1) says that everyone -- except someone acting on behalf of a library, archive, museum or educational institution -- is guilty of an offence if they knowingly and for commercial purposes, contravene section 41.1 (circumventing technological protection measures). Also, on conviction on indictment, they are liable to a fine not more than $1 million or a prison term not more than 5 years or both; OR, on summary conviction, the fine is not more than $25,000 or a prison term not more than 6 months or both.

Now we move along to Section 43 "Infringement In Case Of Dramatic, Operatic or Musical Work" where they add subsection 43.1 (formerly repealed in the Act back in 1997).

"Limitation Or Prescription Period -- Limitation Or Prescription Period For Civil Remedies" 43.1(1) says the court may award a remedy for any act or omission that has been done 'contrary to this Act' if: the proceedings in regards to the "act or omission giving rise to a remedy" being within 3 years of the offence -- if the offender knew (or should have known) at the time that there was an 'act or omission'; OR in the case where the offender did not know they had done something wrong, the proceedings must begin within 3 years from the time the offender first knew, or could have been reasonably expected to know.

So, basically, one way or the other, you have 3 years to act on an infringement case? Is that what this is saying?

I'm not sure about all this 'reasonably expected to know' stuff, who's to say what's 'reasonable'?

A whole lot of vague language there...

43.1(2) "Restriction" says the court shall only apply the limitation or prescription period in (1)(a) or (b) if the party pleads for a limitation period.

Jumping ahead a bit, we find ourselves at Section 58 "Execution Of Instruments" and subsection (1) where it seems like they're just adding more 'WPPT Country' language to the bill (essentially updating it to include the changes from earlier) and clarifies who, exactly, has the power to oversee the assignment or license granting an interest in copyright.

Another giant step forward into Section 62 "Regulations" where they add a bunch of new paragraphs stating the types of regulations the Governor in Council can make. The original (a) and (b) in the Act become (d) and (e) with the new paragraphs reading as follows:

"(a) for the purposes of paragraph 30.01(6)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(b) for the purposes of paragraph 30.02(3)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(c) prescribing the form of a notice of claimed infringement referred to in subsection 41.25(2) and prescribing information to be contained in it;"

This just mostly seems to be callbacks to regulations in earlier additions to postings... some sort of quick 'regulation-index' perhaps?

In Subsection 67.1(4) "Prohibition Of Enforcement" more updating of language... looks like another callback index of sorts that says if a proposed tariff is not filed with respect to the work in question, nothing can be started without the written consent of the Minister for:

And then they add a paragraph (b) that says:

"(b) the infringement of the rights referred to in paragraph 15(1.1)(d) or 18(1.1)(a); or"

So, if I'm reading this right, if the tariff is not filed properly you can't (without a Minister's written consent) go after someone for infringement of rights if they take a recording of your work and put it online without your consent...? (which is basically what those two sections cover).

Section 68(2)(a)(i) "Criteria And Factors" changes the language slightly from "referred to in subsections 20(1) and (2)" to "the provisions of section 20 other than subsections 20(3) and (4)".

Section 68.2(2) "Proceedings barred if royalties tendered or paid" says that you can't start infringement proceedings against someone if they've paid or offered to pay the royalties tendered in a specified tariff. They update the language by adding paragraph (b)

"(b) the infringement of the rights referred to in paragraph 15(1.1)(d) or 18(1.1)(a); or"

Which, again, seems to cover/deal with someone putting your work up on the web for download.

Big changes in Section 71(1) "Filing Of Proposed Tariffs" all they do is remove a reference to 'subsection 29.6(2)' and change 'any such tariff' to 'such a tariff'.

Small changes in language, however, I'm sure there's a reason for it. What that is... I'm not sure.

Generally it seems like the section is saying 'no one but a collective society that is in the business of collecting royalties' can file tariffs with the board...?

Subsection 76(2) "Royalties That May Be Recovered" only removes a reference to 'subsection 29.6(2)'.

Subparagraphs 76(4)(b)(i) and (ii) in "Claims By Non-Members -- Regulations" are repealed.
Both made reference to subsection 29.6(2).

Subsection 78(1) "Board May Determine Compensation" just adds references to subsections 33.1(2) and 33.2(2) and adds to the scope of the provisions of the Board when determining compensation... I think.

Section 92 "Review Of Act" clarifies exactly when and whom shall be involved in reviewing the Act. Right now the Act is to be reviewed every 5 years... I think it should probably be every 3 or 4 years with the way technology is changing... but that's just me.

Now we move onto what are called "Transitional Provisions" which, from my best educated guess, deal with how certain things will work in the interim as the 'transition' takes place...?

Let's take a look.

59.1(1) "No Revival Of Copyright In Photograph" says that though section 10 of the Act is repealed by Section 6, it does not bring back into force any copyrights on photographs that had expired.

59.1(2) "Cases Where Corporations Were Decided To Be Authors" they say that if you are an effected corporation under Section 10(2) of the old act then you're treated as an individual 'author' apart from section 10(2) when the new act comes into force. Your copyright continues to subsist for a term set out in sections 6, 6.1, 6.2, 9, 11.1 or 12 of the Copyright Act.

59.1(3) "Cases Where Individuals Were Deemed To Be Authors" says that if you were deemed to be the author of a photograph under subsection 10(2) of the Copyright Act then you continue to be considered the author of that photograph when section 6 of the new Act comes into force.

60 "Engraving, Photograph or Portrait" says that Subsection 13(2) basically grandfathers you into the new act, explaining that if section 13(2) applied to your engraving, photograph or portrait plate or original in the old act then it continues to apply after the coming into force of Section 7 of the new Act.

61 "No Revival Of Copyright" says that Subsections 23(1) to (2), as enacted by Section 17, do not revive the copyright or the right to remuneration on the expired copyrights of any performer's performance or sound recording.

62(1) "Limitation or Prescription Period" limits Subsection 43.1(1) - saying that, when enacted by Section 49, it only applies to proceedings for 'acts or omissions' that that occurred after the coming into force of that section.

62(2) "Former Limitation or Prescription Period Continued" says that Subsection 41(1) of the act applies to infringement proceedings that happened before Section 47 came into force.

And finally... Yes, FINALLY:

COMING INTO FORCE

63 "Order In Council" says that this all comes into force when the Governor In Council says so. ("On a day or days to be fixed by order of the Governor In Council")

And there we are folks, The End.

Two and a half weeks of reading and cross-referencing and guesstimating have got us here.

If you followed me all the way through this, you may be just as crazy as I am.

But, seriously, as weird and surreal as this whole thing has been, I'm really happy I did it... I feel like, even if only tangentially, I have a better understanding of a few of the underpinnings of how and why my government thinks and acts... and just how different my thought processes and theirs often are.

Is this document the be-all and end-all of evil that it's being made out to be? I don't think so.

But I'll get more into this in my Summary... which I'll probably get around to on Friday... 'cause, really, I just wanna relax and enjoy my Country's Birthday in style.

Hope you have a great one, folks!

Cheers,
Brandon

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