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Monday, June 21, 2010

My Take on Bill C-32 (Part 8)

Hey all!

Took a bit of time off on Friday to let this stuff sink in -- Thankfully, after a nice, relaxing weekend and some wonderful good news that I can't quite share yet, I'm back in the saddle for round... uh... 8.

Yes, this is taking far longer than I thought it would but that's the inherent problem with giving a document like this the respect it deserves, trying to understand this thing -- in context -- is a lot harder than I thought it would be.

But we're doing good, a couple more solid pushes and we'll be through.

So... yeah, please bear with me.

For those of you coming into this rather late in the game, or are just feeling too lazy to go to an older post to find the links: 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, so you can see what used to be side by side with what's being proposed.

Right. Subsection 31.1(1) "Network Services" -- aka: ISPs.

This is a whole new subsection under Section 31 "Retransmission" in the original Copyright Act.

The long and short of it is this: If you're providing a service related to the operation of the Internet or another digital network and, by the nature providing these services, copyright is infringed... it's not your fault.

Essentially, from what I can see here, this protects Canada's ISPs from being held accountable for what you're downloading online. Also great for administrators of College/University student networks.

Also good, in a sense, for protecting your personal data from police or government snooping... at least by force -- the government/police would have little grounds to threaten the ISP.

Organizations like the RIAA and MPAA couldn't sue the ISP for damages of its users (like in Australia -- though the ISP did end up winning that precedent-setting case).

That said, there's nothing here to stop them from VOLUNTARILY handing over your data (packets, histories, usage data etc.)... but this, it would seem, protects them from being directly attacked and vulnerable to lawsuits

Of course, there is an exception to be made in 31.1(2) and that's to note that the service itself must not constitute an infringement of copyright under subsection 27(2.3).

Just a reminder for those who're wondering what section 27(2.3) is:

"(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."

In subsection 31.1(3) 'Incidental Acts' they make provisions for people who 'caches' the work -- or does any other similar act to make the 'telecommunication' more efficient does not, by that act alone, infringe copyright.

In subsection (4) they further limit subsection (3) stating that it only applies as long as they do not modify it (for anything other than technical reasons); they ensure that any original directions laid out (in regards to caching or any similar act) are followed; and they don't interfere with the 'lawful use of technology to obtain data on its use'

Subsection (5) says that a person who provides digital memory in which a person uses to store a work (or other subject matter) for transmission on the web or a digital network is not infringing copyright for that act alone.

I'm not entirely I understand this last bit -- is it protecting those who offer online file-storage services or are they talking about something like SD cards or what...?

And, well, frankly section (6) makes my brain hurt... so I'm going to just post it verbatim.

"(6) Subsection (5) does not apply in respect of a work or other subject-matter if the person providing the digital memory knows of a decision of a court of competent jurisdiction to the effect that the person who has stored the work or other subject-matter in the digital memory infringes copyright by making the copy of the work or other subject-matter that is stored or by the way in which he or she uses the work or other subject-matter."

Moving on to section 32(1) 'Reproduction In Alternate Format' is getting an update that adds language that supports 'a person acting at the request' of a person with a perceptual disability or "a non-profit organization acting for the benefit of such a person".

There is a new section being added in the form of 32.01(1) 'Sending Copies Outside Canada' - this bit says that it's not infringement for a non-profit organization "acting for the benefit of persons with a print disability" to make a copy of a work in a format specifically for that disability and send it to another non-profit organization in another country for use by persons with that disability... as long as the original author is a Canadian citizen or permanent resident or a permanent resident of the country to which the copy is sent.

And, of course, 32(2) says that subsection (1) "does not authorize a large print book or a cinematographic work to be sent outside Canada".

You're also not authorized to do this if the work, in the format specially designed for persons with said print disability, is available in that country at a reasonable price and attainable/locate-able in a reasonable time.

Though what 'reasonable' amounts to -- in time or money -- is anyone's guess.

Subsection (4) says that whomever makes said specialized copy will still have to pay whatever royalty has been "established under the regulations to the copyright owner in the work." and subsection (5) says that if you can't find the copyright owner you still pay the royalties to a 'collective society'.

In subsection (6), if you're the organization making and sending said copy you're also supposed to "submit reports to an authority in accordance with the regulations on the organization’s activities under this section."

Subsection 32(7) is all about the regulations the 'Governor in Council' is allowed to make.

Specifically?

"(a) requiring a non-profit organization that seeks to send a copy outside Canada to, before doing so, enter into a contract with the recipient non-profit organization with respect to the use of the copy;

(b) respecting the form and content of such contracts;

(c) respecting any royalties to be paid under subsections (4) and (5);

(d) respecting to which collective society a royalty is payable in relation to works or classes of works for the purposes of subsection (5);

(e) respecting what constitutes reasonable efforts for the purposes of subsection (5); and

(f) respecting the reports to be made, and the authorities to which the reports are to be submitted, under subsection (6)."

And, finally, subsection (8) defines what a 'print disability' which basically translates to any disability that keeps you from being able to read literary, musical or dramatic works in their original formats.

In subsection 32.2(1) "Miscellaneous - Permitted Acts" they move the "or" from the end of paragraph (d) to the end of (e) and add paragraph (f) which states that it's not copyright infringement for someone to use or permit someone else to use, for non-commercial purposes, a photo or portrait that was commissioned for personal purposes unless the owner of the copyright in the photo or portrait says otherwise.

After subsection 32.5(1) 'Certain Rights And Interests Protected' a new subsection 32.6 will be added. This addition climbs all over itself language-wise so maybe someone out there can translate it for me?

"32.6 Despite sections 27, 28.1 and 28.2, if a person has, before the day on which subsection 15(1.1), 17.1(1) or 18(1.1) applies in respect of a particular performers’ performance or sound recording, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would, if done after that day, have infringed rights under that subsection, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on that day is not, for two years after the day on which this section comes into force, prejudiced or diminished by reason only of the subsequent application of that subsection in respect of the performers’ per- formance or sound recording."

I like to think it's like some sort of legal 'easter egg' for those who actually took the time to read this whole thing; Like if you keep pressing 'Left' on some DVDs in the Options menu or something.

In subsection 33(1) under "Compensation for Acts done before recognition of Copyright or Moral Rights - Certain rights and interests protected" the language sees a bit of an overhaul.

Little things like 'notwithstanding' are being changed to 'despite' and lots of 'WCT country' specifics are being added. I think this has something to do with infringements that happen before the country becomes a WCT treaty country...?

I think this is somewhat similar in tone to that other paragraph I couldn't quite understand...

Though I may be wrong.

Feel free to let me know in the comments.

Cheers!
Brandon

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