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Thursday, June 10, 2010

My Take on Bill C-32 (Part 2)

So, wow, I re-read through yesterday's post and man, it's pretty dry.

A part of me wishes I could sex this thing up a little, put it in a blue dress, maybe a decent shade of lipstick, some nice shoes.

Right now there's not much to work with... well, unless you've got a librarian fetish.

Today we start to move into the 'juicy' stuff, so maybe it'll get better.

Just as a reminder, you can read the whole bill for C-32 here and read the old, original Copyright Act here.

Okay, where'd we leave off? Oh, right: 50 years. Your copyright lives on for 50 years. If it's published, the 50 years starts from the date of publication. Cool beans... not quite Disney-worthy (I believe they eked-out 75 for good ol' steamboat Mickey) but not bad. Also: no real change from what we had before (it's always been 50 years but now the language is more complicated).

Now we get on to "Infringement generally" which is up in Section 27 -- Note: These links are to the old version of the Act so you can jump to and compare with what's in the bill... should you wish to.

One of the interesting little tidbits of language added to the bill in the new subsection (2.2) in regard to 'secondary infringement' is this:

"It is an infringement of copyright for any person to do any of the following acts with respect to anything that the person knows or should have known is a lesson, as defined in subsection 30.01(1), or a fixation of one:"

This section seems to deal pretty specifically with 'lesson' or school-based works. First on the list of things considered an infringement is 'to sell it or rent it out'.

I wonder how this'll effect used textbook sales and such? Or do they get some sort of special exemption, like libraries...?, to re-sell text books? I mean, especially in the case of libraries, do they have to get the author's or publisher's permission for every single book they house?

Does that technically mean that if we sell (or give) our used textbooks to friends after we're done with them that we're infringing on someone's copyright?

In the new subsection (2.3) they get more specific about the internet and infringement -- also the curious term 'should have known' has appeared again:

"(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service."

Now I find it interesting that this language is limited only to a 'person' with no mention of 'corporation' as in some earlier parts of the bill. I mean there are at least a few relatively large businesses in this country, off the top of my head, who could probably fall into this... you know, if the words 'or a corporation' were added.

Just saying: if you're going to do it, why not keep everyone honest?

In section (2.4) they get into specifics on things the court can consider when decided if you infringed on someone's copyright. This one's worth a read:

"(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider

(a) whether the person expressly or implic- itly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

(c) whether the service has significant uses other than to enable acts of copyright infringement;

(d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;

(e) any benefits the person received as a result of enabling the acts of copyright infringement; and

(f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement."

I'm not sure if this is exactly a checklist or not -- does any one of these make you guilty? Does 4 out of 6 put you over the top into 'guilty' territory?

Section 28.1 deals with Moral Rights infringement but adds provisions for 'the performer of a performance' and the absence of their consent. This is also added in 28.2(1) "Nature Of Right Of Integrity".

AHA! And now a little bit of an update for Fair Dealing (our version of Fair Use) in Section 29:

"29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright."

Thumbs up.

Diving into 29.21(1) 'Non-Commercial User-generated Content - which is an entirely new subsection - reveals that as long as you're doing it for non-commercial purposes, mentioning the source (where possible) of the work, not 'replacing' the work or grossly and adversely effecting the exploitation of the original (financially or otherwise) then:

"29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individ- ual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it"

However, when it comes to 29.22(1) 'Reproduction for Private Purposes' - another entirely new section - it's a whole new ball game. It seems that the main thrust of this one is that you CAN keep a copy for private purposes, as long as you got that copy from a legal/non-infringing source and don't give it to anyone else.

Basically, Subsection 29.22 makes it legal to back up your private collection of DVDs, but not the ones you borrow from your friends.

There is one interesting proviso: As long as you don't go breaking any 'technological protection measures' along the way.

"(c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;"

Doesn't that just leave the whole thing wide open to being exploited? I mean, credit due where it's due, some places are wising up and including 'digital' versions of their movies on their DVD's and Blu-Rays but I can see this provision doing far more damage than good.

Essentially, it's going to turn a whole lot of otherwise law-abiding citizens into potential criminals... 'cause if there's one thing I've learned over the years it's that people want what they want and if they're 'not allowed' to take a CD or DVD they bought and put it on their iPod or whatever, they're going to (and will continue to) find a way.

Why not allow for the circumvention of digital locks under certain circumstances? Or, if you're going to go this way, mandate that every disc or video sold comes with either a digital backup copy on the disc or a lifetime replacement policy. Maybe lifetime free downloads from a specific website?

You can't just leave consumers hanging out on a limb hoping for good-will from the industry... especially not after giving them a sweeping power like this.

Okay, moving on...

With 29.23(1), yet another new subsection, we get into what essentially looks like a 'PVR' clause with 'Fixing Signals and Recording Programs For Later Listening Or Viewing'.

The long and short of this one is that you can keep your recording for later viewing/listening without infringing on the copyright as long as you received the program legally, didn't break any 'locks' to get it, make no more than one recording, don't give it away and don't keep it any longer than 'reasonably necessary to listen to or view the program at a more convenient time'.

As an interesting side note - all this goes out the window if you got it from an 'on-demand' service (aka: you paid for it).

So, uh, yeah... for most of us just keep on doing what you're doing. Tho' now I feel like I should go back and clean up the older stuff I've got on there...

Tomorrow we're going to get into 'Backup Copies' and 'How-Much-You're-Screwed-If-You're-Caught'.

Good times.


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