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Reply comment from Canadian Copyright Licensing Agency received on October 22, 2001 via e-mail

Subject : Cancopy's Reply

Dear Sir or Madam:

Attached please find the Reply of the Canadian Copyright Licensing Agency (CANCOPY) to Submissions on Digital Copyright Issues, submitted as per your request by October 22, 2001.

The original will follow by mail.


Suzanne Conway
Legal Counsel

Canadian Copyright Licensing Agency (CANCOPY)
(Adresse, numéros de téléphone, de télécopieur et adresse de courriel enlevés)

PDF Version

Reply of the Canadian Copyright Licensing Agency (CANCOPY) to Submissions on Digital Copyright Issues

The Canadian Copyright Licensing Agency (CANCOPY) welcomes this opportunity to reply to submissions made regarding the Consultation Paper on Digital Copyright Issues, as posted on the Government’s Website. Page numbers referenced in this reply are to those appearing on specific submissions as downloaded and printed from the Government Website.

As stated in the Submission of CANCOPY on Digital Copyright Reforms (Submission), CANCOPY supports a step-by-step approach to copyright reform wherein the first step involves addressing those issues which will allow the Government to ratify the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. CANCOPY restricts its reply comments to those issues raised in that first step, as fully identified in its Submission. Should the Government decide, in response to the many issues raised in the large quantity of submissions received, to address other issues, CANCOPY reserves its right to make further submissions or comment. In addition, due to the inherent difficulty posed by reviewing the hundreds of submissions posted on the Government’s Website and replying within the short time allotted by the Government, CANCOPY reserves its right to make further reply.

In the digital world, the balance between the interests of copyright users and copyright owners maintained through the Copyright Act has been skewed. The networked environment allows new, unchecked access to copyright works. The problem of digital file sharing which has plagued the sound recording industry for several years is now affecting literary works, as demonstrated by Gnutella. This new access must be met, without delay, with new digital controls.

CANCOPY takes issue with the “Comments on a Framework for Copyright Reform” made at page 1 of the AUCC’s submission. The exclusive right of rights holders, as granted under the Copyright Act, to reproduce their works and to authorize others to do so, is a property right entitling rights holders to fair compensation for use of their work. Copyright is not a desire for compensation whose fulfillment depends on the budgetary allowances of users, nor is it a right whose existence, scope or enforceability depends on the motivation or purpose of the rights holder in creating or publishing the work. As stated in CANCOPY’s Submission, it is a property right, otherwise described as an economic right, whose infringement is actionable for remedies including statutory damages, actual damages and injunctive relief. It is a right upon which Canadian creators and publishers depend to earn their livelihood.

In reply to the recommendation of the Copyright Forum at page 6 of their submission that the introduction of provisions dealing with technological measures should be delayed, CANCOPY restates its submission that the Government is already late in introducing such provisions. As long as no action is taken, damage to rights holders will continue unabated. We will continue to witness in Canada the hacking of technological measures without legal repercussions.

In its submission at page 12, the AUCC recommends that any new provisions should not prohibit or sanction the circumvention of technological measures for non-infringing purposes. As stated in CANCOPY’s Submission, as soon as a measure of protection is removed, whether or not the removal is for a legitimate purpose, the work becomes vulnerable to widespread and immediate worldwide infringement. There is no doubt in anyone’s mind that hacking of technological measures will continue to occur unless strictly prohibited by law.

Also as stated in CANCOPY’s Submission, any exceptions or limitations to legal protection of technological measures must not conflict with the normal exploitation of the work by the rights holder. It is CANCOPY’s opinion that Canada’s international obligations under the Berne Convention and the WIPO Copyright Treaty require that this approach be taken. The commercial availability test introduced in Phase II is in line with these international obligations and it is CANCOPY’s position that it should be the key criteria for any exception under the Copyright Act.

As a rule, where collective licensing is in place there should be no exception or limitation to a right in which the holder has a legitimate interest. As defined in the Act, anytime that a licence to reproduce a work is available from a collective society within a reasonable time, for a reasonable price and with reasonable effort, it is commercially available. As illustrated above, any exception to the technological measures provisions would erode the benefits of the measures and gradually make them meaningless. Clearly, this seriously prejudices the rights holders’ legitimate interest and contravenes the “three-step” test established under the Berne Convention since the ability of rights holders to commercially exploit their rights is undermined. It follows that, as was stated in CANCOPY’s Submission, the manufacturing and trafficking in circumvention devices should also be prohibited.

Accordingly, the repeated references in the submissions of the AUCC to ‘”maintaining reasonable access” to copyright protected works is merely a way of using protected works without fair compensation. In particular, the reference on page 4 to a “guarantee [of] access to works without the need to obtain permission... ” focuses on exceptions as the solution to all access issues, which does not accord with the principles of the Berne Convention or the Copyright Act.

As stated in CANCOPY’s Submission, the solution to ensuring access for legitimate uses of protected works rests in the availability of easy and affordable collective licensing, and in the exploration of new options, based on the concept of collective licensing and the role of the Copyright Board. CANCOPY has steadily reinvested licensing income to provide new licensing systems for users. By the end of 2002, Canadians will benefit from the most advanced electronic copyright access and licensing system available anywhere in the world. This will raise access by Canadians to copyright material to new heights.

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