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Tuesday, June 22, 2010

My Take on Bill C-32 (Part 9)

Holy Crap! Part 9?

Yes, folks, policy is fun -- but we're almost there, can you feel it? Oooh yeah.

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 and they load, where possible, the section that's available in the original Copyright Act.

Right, back to it then.

We get off to a creaky start with 33.2(1) - a new subsection entitled "Certain Rights And Interests Protected"

Essentially, it's another wonderful wall of text that borders on indecipherable.

From what I can figure it describes a scenario where, if you're someone who -- before your country becomes a WCT treaty country -- makes an expenditure or incurs a liability in connection with something that would normally be considered a copyright infringement (if it were done at the time of the country being an actual WCT member) then you're not on the hook simply because your country joined the WCT.

Yes, I've probably read that wrong... but hey, please give it a read yourself and let me know what you think.

Subsection 33.2(2) says that a person's right or interest that is protected by subsection (1) terminates if the the owner of the copyright pays the person any compensation that's agreed to or, if they can't agree, then whatever is determined to be fair by the Board (in accordance to section 78).

Section 34 "Remedies -- Civil Remedies" gets a new heading: "Copyright Infringement"

And subsection 34(2) "Moral Rights" changes the language slightly to remove the term 'author' and make it only "the holder of those" rights.

In subsection 34.1(1) "Presumptions respecting copyright and ownership" they add language to make it far more specific, changing "proceedings" to "Civil proceedings taken under this Act"

Sections 36 "Protection of Separate Rights" and 37 "Concurrent Jurisdiction of Federal Court" are being repealed in the new Act.

Section 36 seems like something you might want to keep around... here's the original language from the Act:

"(1) Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act."

I wonder why something like this would be repealed?

By repealing Section 37 they're removing the Federal Court's ability to have concurrent jurisdiction with provincial courts. Does that mean that all infringement issues will now be dealt with by the province they're claimed in?

Sections 38.1(1) "Statutory Damages" 38.1(2) "Where Defendant Unaware Of Infringement" and 38.1(3) "Special Case" are being replaced or modified under the new act.

There's a lot of changes here so this might take a while.

Okay, so basically 38.1(1) says that a copyright owner can choose, at any time before final judgment is rendered, to take statutory damages for which the infringer(s) is/are liable for instead of whatever they would get under section 35(1).

If the infringements are for commercial purposes they may receive a judgment of between $500 and $20 000 for each work -- whatever amount the court feels is "just".

For infringements that are for non-commercial purposes the court can award between $100 and $5000 in total for all infringements -- whatever amount the court feels is "just".

In new subsection 38.1(1.1) "Infringements Not Involved In The Proceedings" they say that if you choose to go after statutory damages for "Non-commercial" purposes then you can't go after the infringer for any other statutory damages that occurred before the proceedings.

Or, essentially, you go after them for statutory damages once (in regards to non-commercial uses) and then the slate is wiped clean for any other ones that happened beforehand.

And, if that wasn't enough, in 38.1(1.2) "No other statutory damages" they state that if a copyright owner has elected to go after statutory damages (for non-commercial purposes) then NO OTHER copyright holder can go after that same person for statutory damages that were made during that time.

In section 38.1(2) if the infringer can prove to the court that they were unaware that they were infringing on the copyright then the court may reduce the amount of the award to "less than $500 but no less than $200"

This amount is also carried over into 38.1(3) which says that if they're awarding statutory damages under paragraph 1(a) or subsection (2) then the court may award a lower amount than $500 or $200 if:

"(a) there is more than one work or other subject-matter in a single medium; and

(b) the awarding of even the minimum amount referred to in that paragraph or that subsection would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement."

A new paragraph (d) is added at the end of 38.1(5) "Factors To Consider" that states (with an interesting sense of leniency) that for non-commercial infringements the court should consider "the hardship the award may cause the defendant, whether the infringement was for private purposes or not and the impact of the infringements on the plaintiff".

Two new paragraphs (d, e) are added at the end of 38.1(6) "No Award" which states that "no statutory damages may be awarded against"

"(d) a person who infringes copyright under subsection 27(2.3); or

(e) an educational institution that is sued in the circumstances referred to in subsection 30.02(7) or a person acting under its authority who is sued in the circumstances referred to in subsection 30.02(8)."

So, essentially, good luck trying to get a statutory damages award out of an 'educational institution' or a person who runs a web (or digital network) service that is designed primarily to enable acts of copyright infringement.

Umm... okay. Still no examples of what that 'service' would look like. Are they talking about something like 'BitTorrent'? Or, more specficially, something like Limewire?

Moving on...

Section 41 -- formerly "Limitation Period for Civil Remedies" -- has become "Technological Protection Measures and Rights Management Information".

Aka: The "Digital Locks" section.

Wow, talk about burying the lead.

This is easily the largest single section/addition I've seen in this whole freaking bill. To say that it's comprehensive... my gawd. It's like staring up at the monolith.

I was hoping to cap this thing off at 10 parts, but this thing's going to need its whole own section and spotlight.

Sorry folks, but this is one big fish and I'll have to serve this up to you tomorrow.

In part-freaking-10 of this feature.


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