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CIPS submits position on Copyright

The views of CIPS on Bill C-61, An Act to Amend the Copyright Act  (September 2009)

Like most Canadians, we believe that there are commonly accepted "fair use practices" that should be preserved through the copyright reform process. 

CIPS acknowledges that the Copyright Act is a balance between rights of creators and rights of users.  As the Chief Justice noted in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, a case where the Supreme Court of Canada had to balance both creators rights and users' rights [at para. 21]:

As mentioned, in Théberge, supra, this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.  When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author's or creator's rights, at the loss of society's interest in maintaining a robust public domain that could help foster future creative innovation.

The Chief Justice goes on to comment on the important role played by the public domain, at para 21:

This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others.

CIPS supports retaining this robust balance so that short term pressures in favour of increasing creator's rights do not diminish the broader public interest or the public domain.

As a first principle CIPS supports that the law should protect and encourage creativity.  That creativity assists to drive Canadian productivity and the Canadian economy forward. 

Generally CIPS believes that it is reasonable that there be reasonable enforcement tools available for the protection of valuable property rights.

CIPS supports the elements of the copyright reform that add certainty to uncertain or ambiguous situations.

CIPS view has been to encourage the certainty of defining the exemptions from liability for Internet Service Providers.  By providing clarity the industry that relies upon the Internet and in which many Canadian businesses are leaders, can flourish.  For any business uncertain risk can dampen growth.  Clarifying the rules of Internet Service Providers allows these important businesses to organize themselves and flourish.

CIPS also encourages the clarity provided in the proposed copyright reform to make it expressly clear that certain personal and private conduct, which was in many situations very likely exempt under the fair dealing exemption, is clearly identified as being exempt.

CIPS recognizes that some copyright owners seek to utilize the protection of technological measures and rights management information in order to address unlawful behaviour with their works.

We note with some concern that the proposed copyright reforms which provide for the protection of technological measures and rights management information have surprisingly have departed from the balance under the copyright law by not making these new rights subject to the user's proper and lawful exercise of the exemptions (what the Supreme Court of Canada refers to as user's rights) under the Copyright Act.

While we note the theoretical possibility of extension of some exemptions by regulation we suggest it is more consistent with the balance inherent in the Copyright Act that these new rights are expressly made subject to the exemptions under the Copyright Act upon enactment of the copyright reform. 

From the specific perspective of the IT profession we note that important exemptions are the fair dealing exemption, which facilities lawful research and private study, but also the back up copy exemption. 

Using the specific back up exemption as an example, CIPS notes that it is prudent practice for IT professionals to be able to make a back up copy of a computer program which they lawfully possess in order to restore or recover a computer system which may have failed.  The Copyright Act provides an exemption for a backup right in Section 30.6(b).  However such prudent and reasonable behaviour would become unlawful under the current draft copyright reform.

In closing, CIPS members have a tremendous respect for the need to protect intellectual property and allow the creators to obtain appropriate rewards for their efforts.  But at the same time, if we make it 'impossible' to easily distribute and lawfully share that property, the creativity and growth of knowledge and art will be restricted and stunted.  It is a difficult challenge for our electronic age but one that must be addressed without throwing the proverbial baby out with the bathwater.

We hope that this letter provides constructive input in the dialogue.

Sincerely,

Greg Lane, I.S.P., ITCP, IP3P

Chair

CCITP

CIPS Corporate Partners

The following organizations support CIPS' commitment to professionalism, ethics, and high standards for the I.T. professionCIPS thanks all its partners for their contribution. Become a CIPS Corporate Partner Today! - Send an email to info@cips.ca.


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