Talk about crazy numbering of provisions.

Let me say that again: after the Copyright Modernization Act comes into effect, Canadian Copyright Act will have section 2.4(1.1) (proudly pronounced “section two point four subsection one point one”), which section effectively adds to Canadian copyright laws what is universally referred to as the “making available right”.

This right was first recognized in the 1996 WIPO treaties, where the right is worded as the right to authorize “any communication to the public of the works, by wire or wireless means, including the making available to the public of the works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”

In Canada, by virtue of the new section 2.4(1.1) this right will fall under the umbrella of the previously existing right of “communication to the public by telecommunication”. This is done by including the “making available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public” in the definition of “communication to the public by telecommunication”.

This may be a sound policy decision, since having two or more separate rights for the same action is confusing. It is enough that uploading of a counterfeit work to the internet may already be considered both a reproduction and communication to the public. Adding a separate right of making available would necessarily raise the question, “If we need a separate right for this, then it means that neither the reproduction nor the communication to the public covers the uploading to the web, and if so, any unauthorized uploads that took place before the new law came into effect must be legitimate.”

In 1996, it made sense to make it abundantly clear that use of works online is not off-limits. Therefore, the new “making available” right came to be. But now that no one is seriously questioning the general principle that unauthorized use of copyrighted works, online or offline, constitutes copyright infringement, using one of the pre-existing rights is a safer bet for continuing disputes.

BOTTOM LINE: Good. The making available right is introduced without disturbing the balance of other rights of copyright owners.

UPDATE: Jason J. Kee (@jasonjkee) made a valid point that folding the making available right into the communication right will have implications because of the existing collective licensing regime. Personally, I’m not a big fan of overreaching collective licensing scheme (or anything collective, for that matter), but I understand that from a practical standpoint it could have been easier to create a new tariff for a new right than to amend the existing tariff to reflect the expansion of the existing right.

Tariffs, albeit very important to most authors, are not what copyright law is about. As I argued in my post How Not to Fix Copyright – My Response to William Patry, copyright is not about getting paid, copyright is about control. Existing tariffs should not determine the right to control one’s works. It is the right to control one’s works that gives rise to tariffs, when necessary.

This will be the first post in a long series about amendments to the Canadian Copyright Act.

For ease of reference, I recommend that you open the Copyright Act with all revisions in a new window.

The first few changes are to Section 2 of the Copyright Act.

First of all, the definition of “moral rights” is amended to reflect the new reality that moral rights will now also cover performers’ performances. I will discuss this amendment as I get to the new s. 17.1 of the Act.

Second, the definitions section now also contains references to “WCT country” and “WPPT country”. The former means a country that is a party to WIPO Copyright Treaty, and the latter means a country that is a party to WIPO Performances and Phonograms Treaty. It would be logical to conclude that Canada, having signed the 1996 WIPO treaties on December 22, 1997 will finally implement them some 15 years later.

The term “treaty country” has been amended to also include WCT countries (but not WPPT countries). This is done because the term “treaty country” is only used with respect to copyright in works throughout the Act, not copyright in the other subject-matter.

BOTTOM LINE: the changes to s. 2 of the new Copyright Act are merely technical, so my assessment of the amendments is neutral.

On June 29, 2012, Copyright Modernization Act finally received Royal Assent. It is expected to come into force in the next few months by order of the Governor in Council.

I have also created a revised version of the Copyright Act consolidated with all amendments.

I have consciously refrained from commenting its provisions before it became final. In my opinion, the biggest problem with the Copyright Modernization Act is that it never answered the question of why we have copyright laws at all. I wrote about it in more detail in my article Modernization of the Inconceivable.

The current reform is hardly more than a spineless compromise. To me, it looks like it was borne out of a discussion went like this: “Let’s take this right from this group of people and give it to that group of people. But in order for us to be able to do it without creating too much of a stir, let’s also take this right from that group of people and give it to this group of people. Nobody’s going to be happy, but we have a chance of finally pushing this through the Parliament.”

The resulting Act is even more unreadable than the current one. The order of provisions and their numbering was and remains highly illogical. Only now it is even more so.

Some of the provisions are horrible from the linguistic point of view. For example, s. 19(1) now reads as follows:

(1) Right to remuneration – Canada

  If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for

(a) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to the right referred to in those paragraphs for that communication; and

(b) any retransmission.

Who’s entitled to what?

Unfortunately, regardless of what I or anybody else thinks about the new law, creators, businesses and lawyers will have to live by it.

This is why, having been silent on the changes to the Copyright Act before, I will now be publishing a series of blog posts explaining my position on each and every amendment, as to whether it makes the Act better or worse.

Many people find it ironic when I say that Canada tends to have very little respect for intellectual property.

Hinting on my Russian background, they counter, “Yeah, right, how about this huge Russian torrents website, where you can get pretty much anything you want for free and with impunity?”

Indeed, this may seem like a contradiction at the first sight. However, not really.

While Russia’s piracy rates are huge, I’ve always felt that there the majority of people know that they are doing something wrong when they are downloading other people’s works without authorization. It’s more of an “I’m a bad boy, and I know it” kind of attitude.

Things are different in Canada. Here, the attitude is: It benefits the great majority of the public to have free access to this work, hence it should not be illegal for me to download it, even if the copyright owner protests.”

While taking something that belongs to another without permission is bad enough, I strongly believe that it is much worse to do it under the false pretense that there is nothing wrong with doing it.

It’s bad enough when a bully takes away a toy from a child. It’s much worse when the bully’s parents find a myriad of reasons why it was OK for the bully to do it and why the child should have shared the toy with the bully in the first place.

Some coincidences are nothing short of ironic.

On April 26, 2012, RCMP proudly reported on mass seizures of counterfeit goods on World Intellectual Property Day. According to RCMP’s report, the Mounties participated in an INTERPOL-coordinated operation aimed at IP crime. In just two weeks from March 1, 2012 to March 15, 2012, over a thousand interventions were made by police, custom officials, investigators and Intellectual Property crime experts at key locations on land, sea and airport border control points. During the same time, interventions in markets, shops and street vendors were made. In total, over a million items were recovered, and over 200 arrests were made. The total value of the seized counterfeit goods was over CA$7,100,000. The counterfeits included perfume, headphones, apparel, jewelry, handbags, cellular phones and machinery.

At about the same time, USTR (United States Trade Representative) released its 2012 Special 301 Report, where Canada remained on the Priority Watch List along with Algeria, Argentina, Chile, China, India, Indonesia, Israel, Pakistan, Russian federation, Thailand, Ukraine, and Venezuela. The findings in the Report regarding Canada are as follows:

Canada remains on the Priority Watch List in 2012, subject to review if Canada enacts longawaited copyright legislation. The Government of Canada has given priority to that legislation. The United States welcomes that prioritization and looks forward to studying the legislation once it is finalized, and will consider, among other things, whether it fully implements the WIPO Internet Treaties, and whether it fully addresses the challenges of piracy over the Internet. The United States also continues to urge Canada to strengthen its border enforcement efforts, including by providing customs officials with ex officio authority to take action against the importation, exportation, and transshipment of pirated or counterfeit goods. The United States 26 remains concerned about the availability of rights of appeal in Canada’s administrative process for reviewing the regulatory approval of pharmaceutical products, as well as limitations in Canada’s trademark regime. The United States looks forward to continuing its close cooperation with Canada on IPR issues, and will continue to work with the Government of Canada to resolve these and other matters.

Not surprisingly, Michael Geist has condemned the report, stating that “[t]he inclusion of Canada on the priority watch list is so lacking in objective analysis as to completely undermine the credibility of the report.” He quotes his submission with Public Knowledge, where he wrote, among other things: “Consequently, rates of infringement in Canada are low and the markets for creative works are expanding.”

The rates of infringement cannot be calculated in isolation from two important factors: what constitutes an infringement and how economically viable it is to enforce copyright in every case. In other words, if every unauthorized use of another’s works falls under one or the other form of exception, then it is only natural that infringement rates will be low. If there is no legal authority allowing copyright owners to go against ISPs for knowingly hosting infringing works, it is only natural that copyright owners do not waste their resources going against each and every individual who downloads these works, thus also contributing to the pink-glasses statistics.

Another reason for lack of the objective standards is the absence of clearly defined philosophy of why we have copyright protection at all. I wrote about it in much detail in my review of William Patry’s book “How to Fix Copyright”. If assessment of IP laws is guided by an elusive “balance” paradigm, then any conclusions may be drawn. It is equally plausible to claim that Canada’s IP laws are fully adequate or that they are completely inadequate.

Going back to the coincidence between the timing of the 301 Report and the RCMP report. One thing is clear. Border measures are crucial in today’s world for efficient enforcement of intellectual property. In this regard, the 301 Report makes perfect sense.

Are there countries where intellectual property is in greater disrespect compared to Canada? Of course! Is this sufficiently good reason to celebrate? Absolutely not!