This document summarizes a presentation given in November 2010 on how Canada can pass meaningful copyright reform legislation. It discusses that the last major copyright reform was in 1997 and the issues it needs to address have significantly changed with digital technologies. It argues Canada needs to learn from other countries' experiences and set clear goals to streamline the process. Consensus needs to be found between owners and internet service providers to develop balanced laws addressing online piracy while providing legal certainty.

1. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544
Canada in Elsinore: How Canada Can Pass
Meaningful Copyright Legislation
Daniel G.C. Glover, McCarthy Tétrault LLP
7th Annual Telecommunications Forum

2. McCarthy Tétrault LLP / mccarthy.ca / November 2010 / Docs #9749544
2Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
Critical Themes for Copyright Reform
¬ Time is of the essence
¬ Catch phrases can kill you
¬ We need to find common ground

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3Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
Time Is of the Essence
¬ Canada last had meaningful copyright
reform in 1997, when the previous Bill
C-32 passed
¬ The studies fuelling policy choices
dated from 1994 and 1995, i.e. the era
of the “Information Highway”
¬ Recommendations included:
¬ allowing copyright owner to
determine whether and when
“browsing” should be allowed
¬ allowing “bulletin board operators”
exemptions from liability when they
“did not have actual or constructive
knowledge that the material
infringed copyright” and “they acted
reasonably to limit potential abuses”

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4Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
To be or not to be…
¬ 1911: Backbone of Copyright Act introduced for
first time in England
¬ 1997: Bill C-32 brings in neighbouring rights,
educational exemptions, new collective society
regime
¬ 1998: Canada agrees to the WIPO Internet
Treaties, including “making available” right,
TPMs, and “enforcement procedures” providing
“effective action” and “expeditious remedies”
against infringement
¬ 1998: Larry Page and Sergey Brin incorporate
Google Inc. with help of $100,000 cheque from
Andy Bechtolsheim

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5Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
To be or not to be…
¬ 1999: Shawn Fanning launches Napster while
attending Northeastern University
¬ Global users measured at 27 million by 2001
¬ 2001: BitTorrent protocol launched
¬ In North America, 53.3% of all
upstream traffic on an average day can be
attributed to P2P (Sandvine, 2010)
¬ 88.9-98.1% of BitTorrent traffic infringing:
2010 Internet Commerce Security Laboratory
study
¬ 2005: Former PayPal employees launch
YouTube
¬ By 2010, YouTube averages more than a
billion daily views

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6Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
How Does Canada Compare?
¬ Since 1997, Canada (led by Liberal, Tory,
majority and majority governments alike) has:
¬ commissioned nine major reports on
copyright reform
¬ commissioned eight economic impact
studies
¬ commissioned five cultural heritage studies
¬ brought three major copyright reform bills to
first reading
¬ passed one bill closing an Internet
retransmission loophole
¬ In 2000, Vanuatu passed legislation
¬ protecting TPMs and rights management
information
¬ exempting certain temporary reproductions
made in the process of a digital transmission
of a work
¬ protecting expressions of indigenous culture

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7Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
“The Perfect Is the Enemy of the Good”
¬ "Le mieux est l'ennemi du bien”
- Voltaire, Dictionnaire Philosophique
¬ Waiting for a perfect bill risks
harming:
¬ the stability of the system
¬ the certainty of stakeholders,
including the creative community,
Internet intermediaries, individual
users
¬ economic growth in creative
copyright industries
¬ Canada’s international reputation
¬ Canada’s ability to protect its
interests in trade negotiations

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8Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
Digital Britain: A Good Example
Introduction to Digital Britain, Final Report
“On 26 August 1768, when Captain James Cook set sail
for Australia, it took 2 years and 320 days before he
returned to describe what he found there.
“Yesterday, on 15 June 2009, 20 hours of new content
were posted on YouTube every minute, 494 exabytes of
information were transferred seamlessly across the
globe, over 2.6 billion mobile minutes were exchanged
across Europe, and millions of enquiries were made
using a Google algorithm.”
(1 EB = 1,000,000,000,000,000,000 bytes of information)

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9Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
Digital Britain: A Good Example
¬ Copyright reform tied to concrete, forward-looking goals:
¬ having 100% broadband coverage in the UK by 2012
¬ three-year plan to boost digital participation
¬ fund to invest in next generation broadband
¬ Digital Economy Act, 2010, sets framework of rightsholder/ISP
relationship but leaves operational details to regulator
¬ Digital Britain is proof that government can:
¬ identify copyright reform as a true priority
¬ decouple it from the political
¬ delegate it to a single entity whose only focus is the digital
agenda
¬ reach out to stakeholders
¬ create a rolling process

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10Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
Catch Phrases Can Kill You
¬ Three killer phrases:
¬ “Made in Canada”: “We're going to do it in a made-in-Canada
way. We're not just going to take what the Americans are doing
or what the Europeans are doing. We are going to fit it to the
Canadian context and I think that is the right thing to do.”
–Tony Clement, March 2010
¬ “The Copyright Balance”: Watchword of SCC, now
employed by everyone from Mihaly Ficsor (former Assistant
Director General of WIPO) to Pirate Party of Canada
¬ “Technological Neutrality”: a.k.a. “simplicity”, “flexibility”, “not
picking winners”
¬ Abstract principles should never substitute for full consideration of
concrete policy goals

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11Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
“Made In Canada”
¬ This is an era where ISPs in Canada facilitate transmissions or host content from
all over the world
¬ We risk facing export/import barriers if our laws are substantially different than
those of our trading partners
¬ The experiences of forerunner countries provides a palpable model and guidance
for courts, resulting in certainty for domestic stakeholders
¬ Are doom and gloom stories about the DMCA real?
¬ Veoh: ISP immune because (i) it reasonably implemented a policy
terminating accounts of repeat infringers ; and (ii) accommodated standard
technical measures utilized by copyright owners to identify their works
¬ Perfect 10: Until Google had actual knowledge of specific infringements
(specific URLs), Google had no duty to act and could not be liable. Google
also not required to “supervise or control” third-party websites linked to from
its search results
¬ Viacom/YouTube: “General awareness” of infringement not enough. Service
provider disentitled to protection only if “it had turned a blind eye to ‘red flags’
of obvious infringement.”
¬ Internet Location Tool, User Generated Content, and Fair Dealing for Educational
Purposes provisions are a few of the wildcards in C-32

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12Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
“The Copyright Balance”
¬ All litigators before the Federal Court of Appeal
must invoke (or explain away) this term
¬ Unclear that “balance” was ever Parliament’s
priority, despite Théberge and CCH
¬ EU Directive, Recital 9:
“Any harmonisation of copyright and related rights
must take as a basis a high level of protection,
since such rights are crucial to intellectual
creation. Their protection helps to ensure the
maintenance and development of creativity in the
interests of authors, performers, producers,
consumers, culture, industry and the public at
large. Intellectual property has therefore been
recognised as an integral part of property.”
¬ Commentators have identified 32 exceptions in C-
32 despite government’s reservation of the URL
balancedcopyright.gc.ca to announce reform

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13Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
“Technological Neutrality”
¬ There can be serious unintended consequences in drafting law to
apply neutrally to all present and future technologies
¬ Making a book available on a bookshelf ≠ posting it to Internet
¬ The problem of parasitism: Pirate services try to shelter under
technologically neutral ISP exceptions
“TorrentPortal is like Google™, in that it links only to torrent metafiles and takes a cache of
such files. None of the data transferred by or stored on TorrentPortal servers is content
linked to by torrent files.”
“Users are attracted to the isoHunt Search Engine because of superior technical features
and the breadth and quality of search results. Any ‘popular copyrighted work’ reached
through information in isoHunt Website is as ‘freely available’ through other search engines
(such as Google Search engine).”

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14Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
Finding Common Ground
¬ Illegal networks are a source of malware, bandwidth
hogging, security breaches, network insecurity
¬ Tariff 22 (SCC, 2004): “copyright liability may well
attach if the activities of the Internet Service Provider
cease to be content neutral, e.g. if it has notice that a
content provider has posted infringing material on its
system and fails to take remedial action.”
¬ Status quo means no clear safe harbours for ISPs,
uncertain scope of rights for rightsholders, fear of
scapegoating lawsuits for consumers
¬ Is a “red flag” rule a stable business standard?

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15Canada in Elsinore: How Canada Can Pass Meaningful Copyright Reform
Key Improvements
¬ Process should have clear leadership and accountability –
Ministry of Digital Affairs?
¬ Process should be rolling and responsive
¬ Ordinary rule should be that Canada applies international
standards unless there is a clear & powerful case for other route
¬ Owners and ISPs need “Getting to Yes” mindset – i.e. identifying
their interests rather than hunkering down in current positions

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