Ottawa's copyright plans wrongheaded, experts say

Among other things, the committee proposes that photographers keep the rights to their work and surfers would have to pay a levy for material even if was offered free of charge. Copyright holders could also shut down websites that they claim -- even erroneously -- are violating copyright, putting the burden of proof on the website charged.

Michael Geist, who holds the Canada Research chair in Internet and e-commerce law at the University of Ottawa, and Howard Knopf, a Canadian copyright lawyer and director for the Center for Intellectual Property at the John Marshall Law School in Chicago, have sharply condemned the proposals. Mr. Geist blames "an amazing lobby job" by the recording industry, and Mr. Knopf calls it a "travesty [and] an exercise in hyperbole."

The committee's premise is that all work on the Internet is someone's property. You can read it or listen to it, but unless there is an explicit legal notice saying the material can be used, you would not be permitted to save a copy to disk or print it out without paying a copyright collective such as Access Copyright.

"This last part is crucial," says Laura Murray, a Queen's University English professor who maintains a website called FairCopyright.ca. "It means that the bulk of sites used in educational settings -- resources designed by museums, libraries, universities, experts of various kinds -- that are intended for educational uses may be levied," with a government agency automatically charging for the content.

"It will be very difficult to communicate to the thousands of sites outside of Canada that are commonly used by Canadian students and educators (the Library of Congress, the British Library) that they must put such explicit notices on their sites," she adds. "This is perverse."

The educational community's proposal for special treatment to allow it free Internet usage also came under fire from Mr. Knopf.

"By asking for a special exception to clarify what the common law and the Supreme Court of Canada have already said is free, they will almost certainly ensure that everyone else will be liable to pay," he said. "It will also backfire on the educators when they are faced with exceptions to their proposed exception."

The committee's recommendation also gives copyright holders the right of "terminate and takedown," meaning an Internet service provider would have to take down material simply because the copyright holder demanded it be done, with no due process for defence. The Canadian Recording Industry Association asked for the ability to force Internet service providers to cut off all services to those who were accused of violating copyright, but the Heritage committee turned it down.

In defence of the recommendations, committee vice-chairman Gary Schellenberger said the report was well thought out and had the unanimous support of the committee, which included members from the major political parties. "There might be some frivolous things that could happen [if it were turned into law], but I hope we can get some of those wrinkles worked out and get some dialogue going," he said.

The Digital Millennium Copyright Act, which ratifies the WIPO treaty in the United States, gives copyright owners similar clout and is being challenged in the courts for stifling free speech, killing research and stalling security development in a legal quagmire. The European Union signed the WIPO treaty, but ratification has been mired in controversy.

How did it get this way? Both Mr. Geist and Mr. Knopf say the Heritage committee ignored evidence against the demands of the recording industry and Access Copyright, the book publishing industry's copyright arm.

"None of the requisite interests were represented," Mr. Geist said.

Mr. Knopf added that material supporting a more moderate approach was rejected because he had neglected to translate it into French.

The best answer to copyright reform has always been to maintain balance, the lawyers say. Society wants to maintain creative incentives, so laws are passed to protect creators; but society must also have access to those works to share in their knowledge.

"The danger of WIPO is that it threatens that balance," Mr. Geist said, "and replaces social rights with absolute rights."

There's also the potential for the recommendations to have a direct economic impact.

"The committee ignored solid evidence that the levy on blank CDs [meant to compensate artists for pirated content] would double as a result of the national treatment requirements of the WIPO treaties," Mr. Knopf said. "This could quickly cost Canadians more than $100-million annually.

"We could end up with the worst of all dystopian worlds," he added. "You could pay the levy on a CD and get sued anyway" over the disc's content.

"Copyright is not an easy issue," Mr. Schellenberger allowed. "But we've tried to make it the best of all possible worlds."

The proposals are so tough, Ms. Murray said, they have already encouraged the CanWest newspaper chain to introduce a new contract for freelancers that demands they hand over all their rights "throughout the universe, in perpetuity."

"You'd think this would make writers' groups wonder about why [the writers have] been busting themselves to support WIPO ratification [and] Internet licensing," she argued.

Still, Mr. Schellenberger cautioned that the report is still far from law.

"There's not even a bill on it yet," he said. "And when a bill is brought up, then there will be debate."

But Mr. Knopf is not mollified. "It's not a rational report," he said.

Source: Globe and Mail