Deflating the Michelin Man: Protecting Users' Rights in the Canadian Copyright Reform Process
| Author | Jane Bailey |
| Pages | 125-166 |
Deflating
the
Michelin Man:
Jane
Bailey'
One
of
the
public
policy
principles underlying
the Act is the
need
to
main-
tain
an
appropriate
balance between
the
rights
of
copyright
owners
and
the
needs
of
intermediaries
and
users.1
A.
INTRODUCTION
On
20
June
2005,
the
Canadian government introduced Bill C-6o,
An Act
to
Amend
the
Copyright
Act.2
Bill C-6o resembled
in
many ways
the
govern-
ment's
March 2005 announced
intention
to
table
legislation
proposing
This
paper
was
made possible through
the
generous contributions made
by
Bell
Canada
Inc.
and the
Ontario Research Network
for
Electronic Commerce
to a
larger research project
of
which
this
work forms
a
part.
Thanks
to my
colleagues
Jennifer
Chandler,
Jeremy deBeer, Michael Geist,
and Ian
Kerr
for
their
input,
as
well
as to two
anonymous peer reviewers
for
their very helpful comments
on
an
earlier version
of
this
paper. Thank
you
also
to
Adrienne Telford, Louisa
Garib,
and
Joanna Venditti
for
their unflagging research support
and
editorial
contributions.
I
would also
be
remiss
if I did not
thank Jeremy Teplinsky
for
doing
his
best
to
keep
me up to
date
on
Phish.
[Emphasis
added.]
Canada, Government
of
Canada
Statement
on
Proposals
for
Copyright
Reform
(24
March 2005), online:
t/
incrp-prda.nsf/en/rpoii42e.html>
[Statement].
Bill
C-6o,
An Act to
amend
the
Copyright
Act,
ist
Sess.,
38th
Parl.,
2004-2005,
&Ses=i#C-6o>.
125
FIVE
i
2
Protecting Users' Rights in the Canadian
Copyright Reform Process
IN THE
PUBLIC
INTEREST:
THE
FUTURE
OF
CANADIAN COPYRIGHT
LAW
certain copyright reforms (the
"Statement").3
The
Statement
was
issued
contemporaneously with
the
government's response
to the
Standing
Committee
on
Canadian
Heritage's
("SCCH")
May
2004 Interim
Report
on
Copyright Reform
(the "Interim
Report").4
Despite
the
profound impact
of
copyright
itself
and the
would-be protection
of
technological protection
measures
("TPMs")
on
freedom
of
expression, neither
the
Statement
nor
the
Interim
Report5
even adverted
to
this
Charter
protected
right.6
Instead,
the
Statement mischaracterized
the
constitutional
and
statutory rights
of
users
as
"needs,"
in
notable contrast with
the
"rights"
of
copyright
holders.7
Unfortunately,
Bill
C-6o appears equally inattentive
to the
rights
of
users.8
While
the
Copyright
Act
(the
"Act")9
confers certain rights
on
copyright
holders,
the
Supreme Court
of
Canada
("SCC")
has
also confirmed
that
the
Act
confers rights
on
users
that
are
designed
to
serve
the
public interest
in a
healthy
and
innovative marketplace
of
ideas.10
Largely
absent,
both
now
and
throughout
the
history
of
Canadian copyright
law,11
has
been
express recognition
that
since
the
entrenchment
of the
Charter
in
1982,
3
Above
note
i.
4
Canada,
Standing
Committee
on
Canadian
Heritage,
Interim
Report
on
Copyright
Reform:
Report
of
the
Standing
Committee
on
Canadian Heritage
(Canada:
May
2004),
Documents/37/3/parlbus/commbus/
house/reports/herirpoi-e.htm>
[Interim
Report].
5
The
Interim
Report
referred
to the
Charter
only
once
— and
most
likely
in
rela-
tion
to the
process
protections
guaranteed
by s. 7 of the
Charter,
rather
than
to
the s.
2(b)
rights
relating
to
freedom
of
expression.
Specifically,
it
recommended
that
ISPs
with
actual
or
constructive
knowledge
of
infringing
content
be
"re-
quired
to
comply
with
a
'notice
and
takedown'
scheme
that
is
compliant
with
the
Canadian
Charter
of
Rights
and
Freedoms":
Interim
Report,
ibid,
at 7.
6
Part
I of the
Constitution Act, 1982
being
Schedule
B to the
Canada
Act
1982
(U.K.),
1982,
c. 11 s.
2(b),
[Charter].
7
Interim
Report,
above
note
4 at
16,19;
Statement,
above
note
i.
8
Jack
Kapica
"Copyright
bill
satisfies
recording
industry"
Globe
and
Mail
(20
June
2005),
online:
gtbillo62o/BNStory/Technology/>
[Kapica].
9
R.S.C. 1985,
c.
C-42,
as
am.,
[the
Act].
10
CCH
Canadian Ltd.
v. Law
Society
of
Upper
Canada,
org/ca/cas/scc/2oo4/2OO4scci3.html>,
[2004]
i
S.C.R.
339 at
paras.
11-12,
48;
2004
Can. Sup.
Ct.
LEXIS
15
[CCH
cited
to
S.C.R.].
11
With
respect
to the
largely
unexplored
connection
between
the
Charter
and
copyright
in
Canada,
see:
David
Fewer,
"Constitutionalizing
Copyright:
Free-
dom of
Expression
and the
Limits
of
Copyright
in
Canada"
(1997)
55
U.T. Fac.
L.
Rev.
175
[Fewer].
See
also:
Ysolde
Gendreau,
"Canadian
Copyright
Law and Its
Charters"
in
Jonathan
Griffiths
& Uma
Suthersanen,
eds., Copyright
and
Free
Speech
(Oxford: Oxford
University
Press,
2005)
245
[Gendreau].
126
whenever Parliament purports
to
exercise
its
section
91(23)"
power
in re-
lation
to
copyright,
its
exercise
of
that
power
must
conform
with
the
Char-
ter-protected right
to
freedom
of
expression.13
Protection
of
users'
rights
is
essential
to
maintaining
a
balance within
the Act
consistent with
that
constitutional
guarantee.14
In
proceeding
on any
purported15
exercise
of
its
copyright
power,
the
federal government should take into considera-
tion
C/mrter-based
concerns relating
to the
constitutional validity
of the
current Act, which stand only
to be
exacerbated
by
explicitly extending
legislative protection
to
TPMs.15
Bill
C-6o
and the
Statement, without explicitly recognizing
the
Charter
protected rights
of
users, suggest
a
potentially more equitable compromise
between users' rights
and
those
of
copyright holders
than
did the
Interim
Report.17
The
Bill
also appears
to
have been drafted with
a
view
to
better
protecting
freedom
of
expression
than
does
the
United
States'
legislative
Section
91(23)
of the
Constitution
Act, 1867 (U.K.),
30 & 31
Viet.,
c. 3, as am.
[Constitution
Act
1867]
identifies
"copyrights"
as
falling
within
the
legislative
jurisdiction
of
federal
Parliament.
Charter,
above
note
6, s.
2(b).
The
SCC
has
made
clear
that
the
exercise
of s. 91 and 92
powers
is
subject
to
Charter
review:
New
Brunswick Broadcasting
Co. v.
Nova Scotia, 1993
SCC 10,
[1993]
i
S.C.R.
319
at
392;
see
also
Reference
re
Provincial Electoral Boundaries (Sask.), 1991
SCC 53,
org/ca/cas/scc/i99i/i99iscc53.html>,
192.
As
others
have
pointed
out,
there
is
also
a
serious
question
as to
whether
extending
protection
to
TPMs falls
within
the
federal
head
of
power
under
s. 91 of the
Constitution
Act
1867:
Jeremy
deBeer
& Guy
Regimbald,
"Consti-
tutional
Authority
Over
Copyrights
&
Private
Copying,"
abstract=y2O223>.
Full
text:
ID73i943_code3956o5.pdf
?abstractid=72O223&mirid=i>.
As
Kerr,
Maurushat,
&
Tacit
have
noted,
copyright
holders
and
TPMs
are
argu-
ably
already
protected
by two
layers
of law in
Canada
—
copyright
law and
con-
tract
law:
Ian
Kerr,
Alana
Maurushat,
&
Christian
Tacit,
"Technical
Protection
Measures:
Tilting
at
Copyright's
Windmill"
(2002-2003)
34
Ottawa
L.
Rev.
7 at
43~45.
<
www.commonlaw.uottawa.ca/faculty/prof/ikerr/CVArticles/Technological
Protection
Measures-Tilting
at
Copyrights
Windmill.pdf
>
[Kerr
et
al].
The
Interim
Report,
for
example,
simply
recommended
ratification
of the
WIPO
Treaties
(World
Intellectual Property Organization Copyright
Treaty,
20
Decem-
ber
1996,
S.
Treaty
Doc.
No.
105-17,
36
I.L.M.
65
[WCT]
and
World
Intellectual
Property
Organization
Performances
and
Phonograms Treaty,
20
December
1996,
S.
Treaty
Doc.
No.
105-17,
36
I.L.M.
76
[WPPT])
without
analysis
of the
impacts
of
extensive
protection
of
TPMs
on the
common
law
balance
between
users'
and
copyright
holders'
rights.
For a
brief
analysis
see:
Russel
McOrmond,
"CIPPIC/
PIAC
Responds
to
Bulte
Report
on
Copyright
Reform" Digital Copyright Canada
(21
June
2004),
online:
127
Deflating
the
Michelin
Man
12
13
14
15
16
17
Chapter Four
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