Bill C-11: SOPA Junior or Copyright Modernization?

by Clare Schulte-Albert

29 February 2012

Bill C-11 is no SOPA. It is an important step towards bringing Canada's copyright laws into the 21st Century.

Hardly anything has been heard in the media about Bill C-11, An Act to Amend the Copyright Act which Canadian netizens have been labelling as Canada’s own version of the tyrannous American “Stop Online Piracy Act” (SOPA), allowing corporate interests and hypocrisy to triumph over the individual rights of fair usage to internet content.

Bill C-11 was partially tabled to address our treaty obligations to the World Intellectual Property Organization signed back in 1996 and only started introducing legislation to comply with its obligations in 2002.

The key goal of C-11 is to modernize the outdated Copyright Act first passed in 1921 and subsequently amended in 1988, 1997, and 2005. The main grievances addressed by the bill deal with two issues: the inability of Canadian consumers to circumvent digital locks for lawful purposes and fair use rights (i.e. transfers of legally purchased files to multiple devices) and the missing compensation of creators of works such as a fee on blank media that goes towards recording artists.

Perhaps the most controversial article of the bill is the provision to clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright. However, the bill has placed more emphasis on defining clearly the cases that are not infringements. The bill ensures that ISPs and search engines will not be held liable for the copyright infringements of their subscribers, to the extent that they are acting as neutral intermediaries, especially where caching, hosting, communications, and activities are concerned.

The bill is also geared towards a notice and forward regime, versus the notice and takedown regime that is currently in place in the United States. This means that an ISP receives a notice from a copyright holder that a subscriber might be infringing copyright, which it then forwards to the subscriber. The identity of the subscriber may then be released with a court order, but the ISP will not be penalized for acting as a neutral intermediary.

Clearly, Bill C-11 does not have the teeth that SOPA had. Big lobbyists at the music industry and at the entertainment software industry have actually demanded that bill look more like SOPA because it prioritizes consumer property rights over those of creators and producers in some cases. For instance, consumers can record radio, television and online broadcasts for personal use and make copies of purchased content, such as music and video files, for personal use.

Additionally, penalties for individual violations amount to anywhere from $100 to $5,000 in the event of a copyright infringement for illegal downloads. The bill did not want individuals to face disproportionate penalties for minor infringement via non-commercial uses. In the United States, infringements are treated much more harshly. The statutory damages per violation for individuals range from $750 to $30,000 for non-wilful infringements and $750 to $150,000 for wilful infringements. There has never been a case where a Canadian court has awarded anything remotely close to the maximum penalty for an individual who downloaded copyrighted content illegally.

The Bill also calls for a full-scale review of the Copyright Act over five years, which will provide Canadians with an opportunity to provide input to changes in copyright regulations and intellectual property rights as they stand.

As the MP for Wild Rose, Blake Richards, stated in the House: “Our government has sought a balance in our copyright legislation and reforms. We sought a balance between protecting creators and ensuring that consumers' rights were also protected.”

Hopefully, the Canadian public will be able to provide meaningful input into the review process of updating copyright regulation for the 21st century.

The views expressed in this opinion piece are the author's own and do not necessarily represent those of The Prince Arthur Herald.

Want to respond to this article? Send a letter to the Editor (letters@princearthurherald.com).

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