Copyright reform demands balance and fairness

Way back when FM radio was taking its baby steps toward worldwide proliferation, radio DJs were underground. Letting loose a new sound with their eyes on the prize of high fidelity, jockeys from Santa Cruz to Saskatoon played full albums uninterrupted for the listening and home recording pleasure of their adoring public. It was a time when “CD” could have only been some obscure acronym for cassette deck, and a time when royalty payments in the music industry were based on sales of product (in this case, vinyl LPs).  

Unfortunately for the musicians who recorded the LP, those listeners with cassette decks at the ready during these full album events weren’t purchasing products, but simply reproducing it for free. Thus, the creators responsible were not receiving royalties, and the amateur recordist was, as a result, a copyright criminal. This required a slight revision of the portion of law that deals with all materials created and recorded in any form: copyright.


In order to properly compensate the musicians and companies involved, and to elevate private copying out of the underground of copyright infringement and into the light of acceptable practice, the practice of copying for private use was made legal and government imposed royalties upon media and devices. The US Audio Home Recording Act of 1992 is one example of such reform, in which Section 1008 explicitly allows “noncommercial use by a consumer of ... a device or medium for making digital musical recordings or analog musical recordings.”

In 2005, the Canadian government sought to modernize its copyright act, but due to unfortunate timing for parliamentary dissolutions and national elections, both Bill C-60 (38th parliament, 2005) and Bill C-61 (39th Parliament, 2008) fell to ruins before they could be passed into law. The Canadian Federation of Students (CFS) released a campaign video, “The Right to Fair Copyright”, claiming in reference to C-61 that “students helped defeat the bill before it could even reach a vote.”
The video also quotes MichaĆ«lle Jean, Canada’s previous Governor General, who called an election at Harper’s behest and is therefore in fact responsible for killing C-61, as saying that, “our government will strengthen laws governing copyright.”


“The Copyright Act is supposedly a balance between rewarding creators for their works and allowing users to make reasonable use of those works,” says Jennifer A. Marles, adjunct Professor of Law at UBC and intellectual property lawyer with Oyen Wiggs Green & Mutala LLP. Such rewards would include royalties from album sales or royalty distribution from private copying levies, or blank media tax, on cassette tapes and CD-Rs. Reasonable use under the currently proposed successor to the ill-fated Bills C-60 and C-61, Bill C-32, would be less strict than previous versions of the Act.

“The bill actually adds certain rights for consumers to do things for personal purposes,” says Marles. C-32 has added an entire section entitled Non-commercial User-generated Content, as well as Reproduction for Private Purposes, and Backup Copies, among countless revisions and new sections which either give more freedom to users or offer reasonable measures to compensate creators. For example, “it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution is authorized to make reprographic reproductions of works in a collective society’s repertoire for an educational or training purpose,” says Bill C-32.
Marles continues, “right now if you taped a show on your VCR to watch later, you would be infringing upon copyright, whereas the [new] bill would make that okay.”


Though the new proposals extend the rights of both users and creators, the bill’s opposition intends to maintain the balance of those rights. One vocal opponent is University of Ottawa professor Michael Geist, who Capilano Students’ Union Chairperson Gurpreet Kambo heard speak at a CFS conference in May of this year. Geist also spoke at a conference to which Marles “invited him to speak.”
Geist’s overview of C-32 on his blog,, states that “the foundational principle of the new bill remains that anytime a digital lock is used ... the lock trumps virtually all other rights.” He and the CFS support NDP MP Charlie Angus' private member's motion to amend Section 29 of the Copyright Act “to [uphold] fair dealing as a fundamental user's right and that to maintain the proper balance between the rights of users and creators, the right should not be interpreted restrictively” in agreement with a 2003 Supreme Court Ruling, according to a March 17 release from the CFS. This amendment would essentially extend the instances in which copyrighted works could be used without permission, a practice which digital locks restrict.

Technological protection measures like these extend the rights of creators to seek reward for their works, while fair dealing extends the rights of users to generate new content from the works. The current copyright reform becomes a balance between the progressive ideas of an “open-source community where everyone makes everything available and we build in that way,” and the social necessity of “giving people the right to limit use of their works, so they can make money from that use,” says Marles.

//Sky Hester

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