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Canadian copyright reform - 'user rights' in the digital era.

Abstract

It was not until recently that copyright began to surface as an issue of general public interest, resulting in a groundswell of debate that has transformed copyright into a "hot topic". This is in part due to the adoption of the 1996 World Intellectual Property Organization (WIPO) Internet Treaties and the legislative reform that is expected in order for Canadian copyright laws to comply with these treaties, which have generated a broader political debate about how copyright should adapt to new communications technologies. Additional factors, however, have contributed to the recent public interest in copyright. The proliferation of digital technology and the internet, the rise of "Web 2.0" technologies, and fundamental changes in how individuals consume and produce creative works have all served to entrench questions about copyright in the public arena. Such advances have enabled near-perfect copies to be made and disseminated easily and cheaply; accordingly, this phenomenon has allowed unprecedented access to copyrighted materials, hence engendering new forms of creativity and authorship. At the same time, these developments have provided rights holders with the technological tools to monitor and control the use of their works in ways previously unimagined. As a result, the stakes surrounding the legality of everyday digital practice have become significantly higher for average citizens, who now occupy the fields of production as well as consumption, thus blurring the author/user distinction upon which much of copyright law is premised. In response, the culture industries have waged their own war on individuals who infringe copyright, fighting fire with fire through technological measures designed to prevent unauthorized copying and the use of protected works. Without copyright reform, many everyday activities that involve both production and consumption of works remain in a legal grey area, representing the new frontier of creative expression, whose borders are under constant renegotiation by users and authors alike.

With copyright legislation on the brink of reform, it is time to reassess how Canadian copyright should operate in the digital era, particularly since copyright affects the average citizen now more than ever. Canada's copyright reform process has been a long and protracted one, and we have now witnessed two attempts at copyright reform die on the order paper in the last decade. The federal government has made a commitment to amending the Copyright Act to bring it in line with these recent technological and cultural shifts, but it is currently unclear which direction these amendments will take. Recent decisions from the Supreme Court of Canada indicate that copyright should be seen less as a tool to protect author or owner rights, and more as a policy-oriented statute aimed at balancing user and owner rights in the broader public interest. Nonetheless, the most recent attempt to reform the Copyright Act, Bill C-61, does not appear to align with this judicial direction. Bill C-61, m fact, calibrates this balance far more in favour of owner rights, particularly by way of stringent anti-circumvention provisions and the failure to make fair dealing rights explicit within these provisions. This legislative direction raises concerns that user rights--and consequently a vibrant public domain--are at risk, should Canada approve a similar bill in the future.

This note will explore how the digital era and the elision of the author/user divide demand a rethinking of copyright law, particularly within the context of Bill C-61. Recognizing that certain technologies, such as those aimed at preventing circumvention of data rights management (D RM) systems, may be used in service of authors at the expense of users, and that these technological tools may themselves be protected by new copyright legislation, this note concludes by suggesting that an optimal copyright balance needs to keep technological strategies enforced against end-users in check. Drawing from Jessica Litman's ideas about the declining utility of the "copy" as the central inquiry in copyright, this note will question how we, as authors and users alike, might renegotiate the boundaries of ownership and authorship in the digital age. In doing so, this note seeks to expose the incongruity between everyday practice and the potential illegality of those practices, between what is creatively possible and what can be technologically forbidden, and to challenge some of the inconsistencies that these competing forces have produced in modern copyright law.

Resume

Ce n'est que recemment que les droits d'auteur ont commences a se manifester comme un probleme d'interet public general, resultant en un debat qui s'est rapidement transforme en << sujet brulant >.. Cette transformation peut etre partiellement expliquee par l'adoption des traites sur l'internet de l'Organisation Mondiale de la Propriete Intellectuelle (l'OMPI) de 1996 et par la reforme legislative qu'on attend encore et qui est chargee de faire conformer les lois concernant les droits d'auteurs a ces traites. Ces deux elements ont genere un debat politique dtendu sur l'adaptation que devrait subir les droits d'auteurs dans le contexte des nouvelles technologies de communication. Toutefois, d'autres facteurs ont contribue a l'intdret recent sur ce sujet. La prolifdration de technologie numerique et la croissance de la technologie << Web 2.0, >> ainsi que des changements en mode de consommation et production d'oeuvres creatives par les individus, ont tous contribue au retranchement des questions de lois concernant les droits d'auteurs face au domaine public. Ces avances permettent la production et dissemination de copies presque-parfaites d'une maniere facile et non-couteuse; en consequence, ce phenomene a facilite l'acces sans precedent aux travaux proteges par les droits d'auteur, ce qui, a tour de role, engendre de nouvelles formes de creativite. En meme temps, ces developpements ont fourni aux titulaires de droits les outils technologiques pour surveiller et controler l'utilisation de leurs travaux d'une facon autrefois inimaginable. En consequence, les enjeux sont eleves en ce qui a trait a la legalite des pratiques numeriques quotidiennes pour le citoyen ordinaire, qui occupe maintenant tant le domaine de production que celui de la consommation. Ceci brouille donc la distinction entre auteur et utilisateur, distinction qui sert toujours de base pour les lois concernant les droits d'auteur. En reaction, les industries culturelles ont fait la guerre contre les individus qui empietent sur les droits d'auteur, utilisant des mesures technologiques pour prevenir l'utilisation des travaux proteges. Sans reforme des lois concernant les droits d'auteur, plusieurs activites quotidiennes impliquant la production et la consommation de travaux resteront dans une zone grise, qui representent une nouvelle frontiere d'expression creative avec des limites qui sont en renegociation constante entre auteurs et utilisateurs.

Avec la legislation concernant les droits d' auteur au bord de reforme, c'est maintenant le temps de se poser la question a savoir comment la loi canadienne devrait operer dans l'ere numerique, particulierement parce que les droits d'auteur affectent le citoyen ordinaire plus que jamais auparavant. Le processus de reforme des lois de droits d'auteurs est maintenant devenu long et interminable, et nous avons ete temoins de deux tentatives de reforme echouees pendant la derniere decennie. Le gouvernement federal s'est promis de modifie la Loi sur les droits d'auteur pour la mettre en ligne avec les changements recents en culture et technologie, mais la direction que prendrait cette modification reste si peu claire. Les ddcisions recentes venant de la cour supreme du Canada indiquent que les droits d'auteur doivent etre vu plutot comme une loi orientee vers une politique visee a atteindre un equilibre entre les droits d'utilisateur et de proprietaire au lieu d'une loi visant seulement e proteger les droits de l'auteur. Neanmoins, la plus recente tentative de reforme de la Loi sur les droits d'auteur, le projet de loi C-61, ne parait pas s'aligner avec cette direction judiciaire. Le projet de loi C-61, en fait, etalonne cet equilibre en favorisant les droits des proprietaires, particulierement en employant des provisions rigoureuses d'anti- circonvention et en negligeant d'inclure parmi ses provisions le droit d'avoir des transactions equitables. Cette direction legislative fait naitre des inquietudes que les droits d'utilisateur -- et, en consdquence, un domaine public vivant -- seraient menaces si le Canada approuve un projet de loi similaire dans le futur.

Cet article explorera comment cette epoque numerique, et l'erosion de la division entre auteur et utilisateur, requiere de repenser la loi sur les droits d'auteur, particulierement dans le contexte du projet de loi C-61. Reconnaissant que certaines technologies, parmi celles qui sont visees a la prevention de circonvention des systemes de gestion des droits de donnees, peuvent etre utilisees au service des auteurs aux frais des utilisateurs, et que ces outils technologiques peuvent eux-memes etre proteges par de nouvelles lois concernant les droits d'auteur, cet artcile conclut en suggerant que l'equilibre optimal va controler les strategies technologiques qui sont appliques aux utilisateurs. En s'appuyant sur des iddes de Jessica Litman concernant le declin de l'utilite de la "copie" comme le focus des enquetes sur les droits d'auteur, cet article vase poser la question savoir comment nous pourrons, tant comme auteurs qu'utilisateurs, renegocier les limites de la propriete dans cette ere numdrique. En examinant ces idees, cet artcile cherche a reveler l'incongruite entre les pratiques quotidiennes et l'illegalite des ces pratiques, entre ce qui est possible de facon creative et ce qui peut etre interdit d'une facon technologique, et a contester certaines incompatibilites qui ont ete produites par la loi moderne concernant les droits d'auteur.
I   INTRODUCTION
II  THE PURPOSE OF COPYRIGHT IN CANADA
Theberge v. Galerie d'Art du Petit Champlain
CCH v. Law Society of Upper Canada
III COPYRIGHT IN THE DIGITAL ERA
IV  BILL C-61 AND COPYRIGHT REFORM IN CANADA
Bill C-61
Are the new "exceptions" user-friendly? TPMs and user rights
   "Format Shifting" and "Private Use of Music" exceptions
   "Time Shifting" exceptions
   Maximum statutory damages
V   RE-ENVISIONING THE "WRONG" IN COPYRIGHT--A THOUGHT
    EXPERIMENT
VI  CONCLUSION


I INTRODUCTION

A decade ago, few would have predicted that copyright might become a part of mainstream political and cultural discourse. It was not until recently that copyright began to surface as an issue of general public interest, resulting in a groundswell of debate that has transformed copyright into a "hot topic". This is in part due to the adoption of the 1996 World Intellectual Property Organization (WIPO) Internet Treaties (1) and the legislative reform that is expected in order for Canadian copyright laws to comply with these treaties, generating broader political debate about how copyright should adapt to new communications technologies. Additional factors, however, have contributed to the recent public interest in copyright. The proliferation of digital technology and the internet, the rise of "Web 2.0" technologies, (2) and fundamental changes in how individuals consume and produce creative works have all served to entrench questions about copyright in the public arena. Such advances have enabled near-perfect copies to be made and disseminated easily and cheaply; accordingly, this phenomenon has allowed unprecedented access to copyrighted materials, hence engendering new forms of creativity and authorship. At the same time, these developments have provided rights holders with the technological tools to monitor and control the use of their works in ways previously unimagined. As a result, the stakes surrounding the legality of everyday digital practice have become significantly higher for average citizens, who now occupy the fields of production as well as consumption, thus blurring the author/user distinction upon which much of copyright law is premised. In response, the culture industries have waged their own war on individuals who infringe copyright, fighting fire with fire through technological measures designed to prevent unauthorized copying and the use of protected works. Without copyright reform, many everyday activities that involve both production and consumption of works remain in a legal grey area, representing the new frontier of creative expression, whose borders are under constant renegotiation by users and authors alike.

With copyright legislation on the brink of reform, it is time to reassess how Canadian copyright should operate in the digital era, particularly since copyright affects the average citizen now more than ever. Canada's copyright reform process has been a long and protracted one, and we have now witnessed two attempts at copyright reform die on the order paper in the last decade. The federal government has made a commitment to amending the Copyright Act (3) to bring it in line with these recent technological and cultural shifts, but it is currently unclear which direction these amendments will take. Recent decisions from the Supreme Court of Canada indicate that copyright should be seen less as a tool to protect author or owner rights, and more as a policy-oriented statute aimed at balancing user and owner rights in the broader public interest. (4) Nonetheless, the most recent attempt to reform the Copyright Act, Bill C-61,s does not appear to align with this judicial direction. Bill C-61, in fact, calibrates this balance far more in favour of owner rights, particularly by way of stringent anti-circumvention provisions and the failure to make fair dealing rights (6) explicit within these provisions. (7) This legislative direction raises concerns that user rights--and consequently a vibrant public domain--are at risk, should Canada approve a similar bill in the future.

This note will explore how the digital era and the elision of the author/user divide demand a rethinking of copyright law, particularly within the context of Bill C-61. Recognizing that certain technologies, such as those aimed at preventing circumvention of data rights management (DRM) systems, may be used in service of authors at the expense of users, and that these technological tools may themselves be protected by new copyright legislation, this note concludes by suggesting that an optimal copyright balance needs to keep technological strategies enforced against end-users in check. Drawing from Jessica Litman's (8) ideas about the declining utility of the "copy" as the central inquiry in copyright, I will question how we, as authors and users alike, want to renegotiate the boundaries of ownership and authorship in the digital age. In so

doing, this note seeks to expose the incongruity between everyday practice and the potential illegality of those practices, between what is creatively possible and what can be technologically forbidden, and to ask whether this kind of inconsistency should characterize modern copyright law.

Part II of this note will examine the purpose of copyright in Canadian law. Though copyright has historically been interpreted by courts as a tool to protect the author's natural right to exploit his or her intellectual works, recent jurisprudence indicates a shift in the tenor of the Supreme Court's decisions. These decisions suggest that copyright has a utilitarian purpose with a view to protecting the public interest in the dissemination of works, hence elevating the status of the notion of "user rights" in the copyright balance. Part III considers how this move away from the natural rights perspective takes on special significance in the digital age, as users are increasingly becoming creators of content, but whose activities also potentially affect the interests of copyright holders. The recognition that authors are simultaneously users of existing material indicates that the lines between author and user are not so easily described as opposing impulses, especially in our contemporary cultural and technological moment. Part IV will examine Canada's most recent attempt at copyright reform, Bill C-61, arguing that the overemphasis on the protection of technological enforcement measures operates to render any "user rights", whether new or existing, essentially meaningless. Private strategies of technological protection by authors, under the regime envisioned by Bill C-61, threaten the ability of users to adequately exercise their rights when they are at a technologically- imposed disadvantage. Presuming that this threat also implicates the ability for new works to be created, Part V acknowledges that radical shifts in the consumption and creation of works may well require a similarly radical shift in how we approach copyright laws. This note will canvass some theoretical perspectives on the nature of copyright law and ask if there are alternative ways to think about copyright in the digital era. In particular, Jessica Litman's proposal to jettison the right of reproduction in copyright law will be considered as a launch-pad for rethinking the "wrong" in copyright. Though they might be controversial, Litman's ideas are employed to illuminate the clear gap between cultural practice and legality in the digital age, indicating the need to include end-users in the conversation about copyright reform.

II THE PURPOSE OF COPYRIGHT IN CANADA

There are generally two schools of thought as to the purpose of copyright. Each of these subscribes to different conceptions of how copyrighted works should be treated, and how the relationships between author, user, and the public domain operate. One is based on a Lockean, natural rights perspective which grants authors an inherent property right over their creations by way of their intellectual labour. (9) This is more of a "strong copyright" view, which grants authors full entitlement to control how their works are used in the marketplace. The natural rights view is based on the presumption that authors should be remunerated for any exploitation of their work. (10) Under this model, the entitlement of the author is a forgone conclusion, whereas users bear the burden of providing a policy reason for any unauthorized uses of the work. (11)

The competing approach frames copyright as an instrumentalist regime aimed at encouraging the publication and dissemination of works by providing incentives for the creation of new works. Under this framework, copyright is understood as a privilege granted by the state, requiring a more limited set of protections for authors in order to ensure adequate public access to those works. There is, in this view, no presumption that the author must be paid for the use of their creations. (12) Under the instrumentalist approach, copyright's ultimate objective is to encourage a thriving cultural and intellectual domain. This is achieved by granting certain exclusive protections to copyright holders over their works to provide them with the economic incentives required to ensure a steady stream of new ideas and works into the marketplace. (13) For this reason, copyright law is often described as a "balance" between providing rewards for creators, and maintaining an optimal level of access to a rich public domain. David Vaver maintains that these apparently competing values are inherent in intellectual property law's "paradoxical" nature, which "starts from the premise that ideas are free as the air--a common resource for all to use as they can and wish". (14) As the copyright owner's bundle of rights over particular expressions of those ideas expands, however, the law "then proceeds systematically to undermine that notion". (15) Indeed, the scope of authorial entitlement under the Copyright Act has broadened considerably over time, and continues to widen despite the "apparent affinity between the instrumentalist view and public interest concerns". (16)

Exactly how Canada's copyright laws fit into this framework has been the subject of much debate. While the U.S. Constitution explicitly states that the purpose of copyright is to promote the public interest, (17) the Canadian Copyright Act contains no such purposive declaration. Until fairly recently, the traditional jurisprudential approach in Canada was more aligned with the strong copyright camp. Despite the fact that copyright is almost entirely a statutory creature, (18) the Lockean natural rights rhetoric underscores much judicial reasoning in copyright cases. Carys J. Craig observes that, historically, judicial reasoning has appealed to the intuitive justice in protecting the natural entitlement stemming from the author's creativity or labour in relation to intellectual property. (19) This spectre of "Lockean entitlement" lurks throughout many key Canadian copyright decisions, maintaining a "subterranean presence that provides a particular sense of justice or fairness, thereby exerting significant power over the development and application of copyright doctrine". (20) Indeed, as recently as 1990, the Supreme Court confirmed that the purpose of the Copyright Act was "passed with a single object, namely, the benefit of authors of all kinds, whether the works were literary, dramatic or musical". (21) Moreover, Canadian copyright laws have been shaped in large part by international copyright treaties, whose standards also "strongly support a natural rights thesis". (22) As a result, Canadian copyright has generally been interpreted through a moralistic lens that views copyright's primary purpose as one that benefits authors, relegating any residual public benefit to the status of "a fortunate by-product of private entitlement". (23)

Nevertheless, recent jurisprudence indicates that Canadian courts are moving away from the natural rights perspective, and settling upon a more instrumentalist, public-interest approach to copyright. Daniel Gervais refers to three seminal Supreme Court decisions (24) as the "trilogy" of cases that finally imbued Canadian copyright law with an actual purpose. In two of these cases, Theberge and CCH, the Court commented directly on the public interest and user rights in copyright. (25) Both will be described briefly in order to demonstrate the progressive shift the Supreme Court has made towards a copyright balance that addresses user rights.

Theberge v. Galerie d'Art du Petit Champlain
   The Copyright Act is usually presented as a balance between
   promoting the public interest in the encouragement and
   dissemination of works of the arts and intellect and obtaining a
   just reward for the creator. (26)


Justice Binnie's comment above marked what has been hailed as a milestone in Canadian law for finally elucidating a clear purpose for copyright. (27) The case dealt with a copyright infringement claim in which lawfully purchased posters of the plaintiff's artwork had been chemically transferred onto canvas backings and resold by the defendant. The Supreme Court held that this transferral did not constitute a "reproduction" under s. 3(1) of the Copyright Act. After describing copyright as a "balance", Binnie J. went on to maintain that the proper means of calibrating this balance lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. (28)

The majority envisioned copyright as a policy tool aimed at maintaining public access to works, which necessarily required limiting "excessive control by holders of copyrights" that might "unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole". (29) The Court advocated both for a limited reading of the artist's rights and for a broader interpretation of user rights, suggesting that the copyright owner's right to exclude "cannot enter carelessly into the private sphere of individual users". (30) This balanced perspective appreciates that the user has a positive right to do what he wishes with his copies of the painting. Justice Binnie further refused to accept the dissent's position that an infringement had occurred purely on the basis of the plaintiff's economic rights being affected, rejecting the notion that simply transferring the work to a different medium infringed copyright by affecting Theberge's "legitimate economic interest". (31) The reference to economic considerations also demonstrates that one must weigh the rights of copyright holders carefully so as not to "overcompensate" them for their works. The Court's decision indicates that findings of infringement should be informed by broader policy objectives that might limit the ability of copyright holders to control the activities of end-users.

After Theberge, copyright is better understood as a system of dual objectives, providing incentives for authors by rewarding them for their efforts, while also providing adequate access for users and encouraging a strong public domain. Such a conception is a considerable departure from earlier notions of copyright as a regime with the single objective of protecting author rights. The pronouncement of copyright as a "balance" recognizes not only the limited nature of author rights, but requires that these rights "must be understood in relation to other rights and/or interests that are equally constitutive of the copyright system". (32) In other words, Theberge laid the groundwork for broader judicial recognition that copyright should address the interests of both users and authors.

CCH v. Law Society of Upper Canada

The notion of a "user right" in copyright was given more explicit support in the Supreme Court's ruling in CCH Canadian Ltd. v. Law Society of Upper Canada. (33) The case addressed a number of legal issues surrounding the photocopying and distribution of legal materials by the Law Society's Great Library for its patrons. The Court asked, inter alia, whether the Law Society's copying of the works would be considered "research" under the fair dealing provisions in the Copyright Act. (34) In finding that the Great Library's activities did qualify as fair dealing, McLachlin J. characterized the defence as a positive user right rather than as an exception to infringement:
   [T]he fair dealing exception is perhaps more properly understood as
   an integral part of the Copyright Act simply than a defence. Any
   act falling within the fair dealing exception will not be an
   infringement of copyright. The fair dealing exception, like other
   exceptions in the Copyright Act, is a user's right. In order to
   maintain the proper balance between the rights of a copyright owner
   and users' interests, it must not be interpreted restrictively.
   (35)


In other words, "exceptions" in the Copyright Act under fair dealing should be understood as explicit assertions of user rights, rather than discrete exemptions to be carved out of pre-existing owner rights. Though exceptions to copyright had previously been read narrowly, the decision in CCH raised their status "to the level of general principle" (36) and "affirm[ed] the irreducible centrality of the public domain in Canadian copyright jurisprudence". (37) CCH dismantled the view that the protection of author rights was the only or best way to protect the public interest in copyright, confirming that user rights require equal consideration with owner rights. (38)

CCH also bolstered the assertions made in Theberge regarding the "end-user". While the CCH ruling was a triumph for a more liberal reading of fair dealing exceptions, (39) it also echoed the Court's reluctance in Theberge to allow copyright's reach to implicate private consumers. The Court's refusal to require the Great Library to enforce copyright against its patrons "reinforced the view that those end-users should not normally have to get a licence to access content", maintaining the idea that copyright should rightly be applied elsewhere in the "distribution chain" and not to individual users. (40)

Together, these two decisions mark a significant change in the judicial interpretation of the purpose of copyright and of user rights. (41) Future courts may be less likely to grant copyright owners too much control over their works if it is at the expense of what they consider to be an appropriate balance between user and owner rights. If it can be asserted that the Canadian copyright regime now recognizes a set of "user rights" that constitute personal, non-commercial use as intrinsic to the balance it seeks to calibrate, then it seems as if the Supreme Court has made a fundamental interpretive shift towards a more instrumentalist approach to copyright. Arguably, the balance proposed in Theberge and CCH marries the promotion of copyright incentives for authors with the protection of what Jessica Litman refers to as "copyright liberties"--the ability to enjoy, read, listen, and engage with creative material. (42) Exercising these liberties is as crucial to the maintenance of a vibrant public domain and the creation or dissemination of new works as is the incentive provided to authors in the protection of their rights.

The rapid proliferation of digital culture has spawned a creative era that invites and encourages new works. However, technological tools to protect and to prevent access to those works have emerged alongside these new creative strategies. The following section explores why copyright in the digital age requires rethinking, in light of these developments.

II COPYRIGHT IN THE DIGITAL ERA

There are good reasons to move away from the strong copyright view, if one believes that the aim of copyright is to encourage intellectual production and access. For one, the judicial and discursive preoccupation with Lockean ideals distorts and constrains policymaking, since the public interest inevitably loses out whenever the author's right is deemed "private and pre-political as opposed to socially produced". (43) The more instrumentalist copyright "balance", endorsed by the Supreme Court, is thus inherently at odds with the Lockean ideal, which presumes that any "natural entitlement" will necessarily be privileged over a user's interest in the work. (44) Furthermore, copyright is in fact a statutory creature, (45) whereby the rights of authors, whether or not they were initially codified based on some idea of natural entitlement, are now the cumulative result of intense manipulation and negotiation by legislators and copyright stakeholders. (46) The manner in which such rights and obligations have been constructed leads David Fewer to assert that "the dogma that copyright exists solely to protect authors is mythology". (47) Moving away from the language of natural rights, and recognizing that a healthy copyright balance includes user rights, is crucial to enabling a more open and flexible interpretation of copyright.

The natural rights perspective similarly overlooks the fact that authors rely on the works of others in order to create new expression. (48) Some copyright scholars contend that user rights are essential to balanced copyright because the act of personal use is integral to the act of creation itself. Abraham Drassinower bases this claim on the recognition that authors are also users who draw from others for inspiration and ideas. Observing that authors are not isolated silos from which ideas originate but are "constantly engaged in a dialogue" with the existing cultural domain, Drassinower asserts that copyright "understands authors as embedded in a culture that nourishes and influences them, yet from which they derive their own voice". (49) The distinction between authors and users is thus compromised. This view of copyright threatens the model of exclusive owner rights that is largely justified by an outdated, Romantic vision of the author whose works are seen to stem directly from the original and creative operation of the author's own mind. (50)

The prevalence of Web 2.0 technologies that enable "user-generated content" has effectively blurred the line between author and user, making it far easier for the average individual to produce and publish his or her own creative content. Building on Drassinower's assertions about the authorial entitlements of both authors and users, the creative process he describes takes on special significance in light of this shift in the production and consumption of cultural material. In order to encourage the free exchange of ideas in the digital realm, it seems clear that a healthy public domain will be hindered, rather than helped, by overprotecting author rights. Once we understand the author "simultaneously as user of other pre-existing materials, as architect rather than manufacturer", (51) copyright is better appreciated as a relation between people--not as between author and user, but as between potential authors. Thus, when we discuss copyright in the public interest, it should not be about privileging users at the expense of authors, but more about recognizing authors as users. In so doing, "the rights of users are not so much exceptions to the author's rights as much as themselves central aspects of copyright law inextricably embedded in authorship itself". (52)

There are practical reasons related to our current technological moment that militate in favour of a copyright balance which recognizes user rights. Despite the historical prevalence of a natural rights perspective, it was not until more recently that the rights of copyright owners could encroach far enough into the private sphere to prevent the end-user from enjoying those works. This was in large part due to the fact that copyright was never originally targeted at individual, personal use. Prior to the emergence of digital technology, copyright was primarily employed to control the enterprise of piracy for commercial gain. (53) As a legal instrument designed to regulate activity between professionals--namely, authors, publishers, and producers--the copyright regime was never envisioned as a weapon for rights holders to wield against the end-consumer. (54) The "right to exclude" inherent in copyright was not a right to exclude all others, but a right against those competing professionals who were also in the business of exploitation of content. (55) Private, personal copying was generally left alone, since it was barely considered prejudicial to the commercial interests of the copyright holder (and nearly impossible to monitor).

As we find ourselves firmly entrenched in the digital era, however, the stakes have changed quite dramatically. Large-scale "piracy" no longer requires investment in replication technologies, warehouse space for storing physical copies, or distribution chains. (56) Anyone with a computer and an internet connection can achieve unprecedented levels of copying and distribution that were formerly limited to commercial pirates. Moreover, the existence of the digital copy can arguably create perfect substitutes for the original in the marketplace, lending weight to concerns that such copies will prejudicially affect the economic interests of copyright holders.

In response to these fundamental shifts in the production, reproduction, and dissemination of copyrightable material, copyright holders have begun to target the conduct of end-users, whose activities are seen as a threat to their ability to exploit their works. In response to such threats, copyright owners are increasingly characterizing "unauthorized personal use" as an obstacle to their exclusive rights to exploit their works--leaving the ability to exercise "copyright liberties" in question:
   [I]ndividuals' claims to make personal copies and pass them on to
   friends and family seem more questionable when those copies are
   digital.... Increasingly what consumers have viewed as a "right" to
   make fair uses of copyright works is painted as a historically and
   technologically contingent privilege that may need to yield to
   copyright owners' new licensing strategies. (57)


Such concerns are well-founded, considering recent American file-sharing litigation in which personal use was essentially interpreted by the Court as synonymous with piracy or theft, rather than understood as a positive user right. (58) These decisions have set the disturbing trend of applying copyright law to those end-users whom it was not initially meant to target, at the expense of the rights of personal and private use that they have always enjoyed. If we can agree that the exercise of copyright liberties is essential to the very act of authorship, encouraging these acts of personal use appears consistent with the public interest in ensuring a thriving intellectual and creative public domain. If copyright's aim is to encourage the dissemination of ideas and works, then presumably we would aim to secure "the public's opportunities to read, view, listen to, learn from, and build on copyrighted works". (59)

The obvious response to such claims is that sharing files on peer-to-peer ("p2p") networks is a straightforward act of theft. (60) Nothing about downloading copyrighted material for free from the internet, some would argue, is an act of authorship. Some might further argue that only if those materials are then used as the raw materials for a more transformative dealing in creating a new work, would it be necessary to pay for those raw materials in order to compensate the authors of the original work. Both arguments may well be valid ones, but they are based primarily on a model of authorial entitlement that seems outdated in the digital era. Further, the fair dealing mechanism laid out in CCH seems equipped to deal appropriately with these questions--if the dealing is "fair", then the user will be permitted to make use of the work. If not, then they will be required to remunerate the author. This note is more concerned with the requirement that the user must always defend any unauthorized personal use of a work, based on a presumption of an author's entitlement to shut users out completely from both accessing and copying the work.

In the digital age, where even the act of browsing the internet makes a copy, it is questionable whether the notion of a "copy" is the best way to measure the wrong done to the author; this issue will be further addressed in Part IV of this note. It is further debatable whether we want to create a copyright system that permits authors to freeze out personal use of materials, at the expense of the potential for new creative works that might arise from that use. It seems clear that the wide variety of user-generated material that is now available on the internet would never have been possible without the ability to "illegally" copy works digitally--or rather, to exercise their copyright liberties freely. The question is whether we want to protect authors' rights so much that they can technologically freeze out this capability entirely.

In light of Canada's more recent jurisprudential leaning towards a more balanced copyright regime, one would hope that Canadian citizens might be safe from these encroachments on the exercise of their copyright liberties. The following section will indicate that this viewpoint has not found much footing in Bill C-61, the federal government's most recent attempt at amending the Copyright Act. Should the failed Bill C-61 become a model for future reform efforts, Litman's concerns regarding the targeting of the end-user and the threat to personal use may well become a reality in Canada.

III BILL C-61 AND COPYRIGHT REFORM IN CANADA

In response to the challenges that digital communications technologies pose to copyright legislation, WIPO created two treaties in 1996: the WIPO Copyright Treaty ("WCT") (61) and the WIPO Performances and Phonograms Treaty ("WPPT") (62), often collectively referred to as the "WIPO Internet Treaties". Together, the treaties aim to protect authors, composers, performers, and producers of sound recordings, by "introduc[ing] new international rules in response to the new economic, social, cultural and technological developments". (63)

The treaties recognize specific rights of these creators, including rights to distribute or authorize the distribution or "making available" (64) of their works to the public, and an exclusive right of communication to the public, presumably aimed at clarifying the illegality of uploading protected works via p2p networks. This expanded bundle of rights generally extends existing rights provided to copyright holders under the Berne Convention (65) in order to allow authors to exploit their works in an online environment exclusively. (66) The treaties also require that legal remedies be provided against the circumvention of technological protection measures ("TPMs") and rights management information ("RMI") used by authors in connection with the exercise of their rights. (67) These anti-circumvention measures would prohibit the manufacture, distribution, and in some cases, the mere use of anti-circumvention technologies intended to break "digital locks" or manipulate the integrity of RMI embedded on digital materials.

As a member of WIPO and a signatory to the WIPO treaties, Canada has made a public commitment to amend its copyright laws. (68) Though its status as a signatory may not necessarily bind Canada legally, the federal government has already made public its desire to bring Canadian copyright into the digital age, whether the WIPO treaties are ratified or not. The copyright reform process has led to the release of various government-issued reports outlining a Framework for Copyright Reform and the solicitation of input from the public. (69) Nonetheless, since Canada signed on to the treaties in 1997, both of Canada's attempts at major legislative reform have died on the order paper due to election calls. (70) Bill C-61, the most recent effort put forth by the Conservative Party in June 2008, is worth examining as an indication of how the government might attempt to reform Canadian copyright. The bill is of particular interest due to its curious mix of heavy-handed penalties for individual infringement and circumvention of TPMs, coupled with a panoply of new "private use" exceptions aimed at protecting users--which were not included in the previous reform bill. The introduction of new exceptions for personal use appears to be an encouraging step for those who rallied for more balanced copyright legislation. A closer reading of the bill, however, indicates that these new exceptions are better read as lip service to the user rights camp, rather than amendments that truly address an optimal balance of interests. (71)

Bill C-61

On June 12th, 2008, then-Industry Minister Jim Prentice and then-Minister of Canadian Heritage Josee Verner introduced Bill C-61, an Act to Amend the Copyright Act. (72) The bill was initially to be introduced in late 2007, but was delayed due to widespread public protest about the lack of public consultation and concerns that it would mirror the controversial American Digital Millennium Copyright Act ("DMCA"). (73) The new bill promised a "Made in Canada" approach to copyright in the digital era, aimed at providing "fair and predictable rules for copyright in a digital environment" in order to "bring the Act in line with advances in technology and current international standards", (74) and to balance the rights of owners with the "needs of users to access copyright works". (75) The bill addressed many of the key issues outlined in the Framework for Copyright Reform (76) that were included in the 2005 Bill C-60, (77) including clarification of Internet Service Provider (ISP) liability, new exceptions for research and education purposes, a "making available" right for performers and producers of sound recordings, (78) and clear anti-circumvention provisions.

Generating the most public interest, however, were a number of amendments aimed at shielding the average user from liability for private uses of copyrighted works. On their face, these exceptions appeared to follow the Supreme Court's lead in its recognition of user rights in the copyright balance. Referred to as "private use" exceptions, these amendments allowed certain activities that would otherwise be illegal under the Copyright Act. The exceptions were aimed at permitting Canadians to make use of copyrighted works for private, noncommercial use in their own home and "legally take advantage" of new technologies and formats. (79) In addition, the bill introduced a cap on statutory damages for infringements that are for private, non-commercial purposes. These amendments are briefly summarized below.

Are the new "exceptions" user-friendly? TPMs and user rights

"Format Shifting" and "Private Use of Music" exceptions

The existing Copyright Act does not allow consumers to make copies of legally purchased works for private, non-commercial use. These amendments would enable individuals to make a single copy of a legally-acquired book, newspaper, periodical, videocassette or photograph to another medium or device, (80) and to copy legally acquired sound recordings onto separate devices such as MP3 players or computer hard drives. (81) For both types of exceptions, the reproduction must originate from a legally-acquired--that is, not borrowed or rented--non-infringing work, and cannot be made onto media or devices not owned by the individual--meaning one cannot transfer files to devices owned by friends or family. The individual can only reproduce the work once per device, cannot give the copy away, and must only use it for "private" purposes. In addition, if the individual sells or gives away the original source of the copy, all copies from that source must be destroyed. Finally, private contracts prevail in the case of subject matter downloaded from the internet.

"Time Shifting" exceptions

These amendments would allow an individual to make a single copy of a television or radio program broadcast, or a simulcast webstream (82) in order to watch or listen to it at a later time. (83) This exception applies only where the individual received the program legally, makes only one copy and keeps the copy "no longer than necessary", uses it only for private purposes and does not give the copy away. Again, programs received via private contract--such as video-on-demand services--will be governed by those contracts in the case of inconsistency. The exception does not apply to recordings made using a network personal video recorder (PVR) that stores the recordings in a networked facility for later access. (84)

Maximum statutory damages

Under the existing Copyright Act, an individual can be liable for statutory damages ranging from $500 to $20,000 per work infringed. (85) These amendments would limit an individual's liability if the infringement is for private, noncommercial purposes. (86) The provisions would fix the maximum amount of statutory damages at $500 total, regardless of the number of works infringed.

The $500 maximum does not apply, however, if TPMs were circumvented in order to infringe, in which case one would face up to a maximum of $20,000 per infringement and still be liable for other types of damages or remedies. In addition, normal statutory damages would still apply to infringements not deemed for private purposes, including posting copyrighted materials on p2p networks or social networking sites, or selling or giving away a device containing copies made for private purposes.

At first glance, the provision of these new exceptions and the limitation on statutory damages for private uses appear to be moves in the right direction for end-users, who could continue engaging in currently common practices without fear of legal liability. Moreover, the new provisions still provide clear protection for the interests of authors, performers and producers in a digital environment. Nevertheless, the fine print of Bill C-61 indicates that these "exceptions" remain extremely narrow when their limitations are considered. Furthermore, they fail to affirm a positive "user right" in light of such limitations.

On a practical level, the provisions do not reflect everyday practice when some of the restrictions on each exception are considered, raising doubts about their usefulness to the average Canadian. For example, while many Canadians likely already copy songs from compact discs ("CDs") onto digital music players, it is unlikely that they will destroy those copies if they sell the originating CD. While many Canadians probably "time-shift" in the sense that they record programs for later consumption, they are increasingly more likely to do so with the aid of a PVR rather than a video-cassette recorder (VCR), in which case their rights are dictated by private contract and the exception does not apply. This can often limit the ability to make recordings depending on whether the distributer has permitted the network to enable recordings or not. Television networks would similarly be able to employ TPMs over the PVR network, making it illegal for anyone to circumvent such measures in order to make "private use" recordings. Furthermore, the format shifting exception would not include digital video discs ("DVDs"), covering only books, newspapers, periodicals, videocassettes and photographs. These exceptions, therefore, do not extend to the very media that might be most prevalent and useful in a digital environment. The private copying provision, moreover, does not apply to reproductions made onto media covered under the private copying levy in s. 80 of the Copyright Act. (87) This means that Canadians would be subject to a dual system of private copying that lacks internal consistency as to user and author rights. Users have "rights" to transfer. songs to digital media players and computers, but copying them to CDs or cassettes remunerates the owner via the levy paid on the media itself.

What truly defeats these exceptions' purported sympathy towards "user rights" is their inoperability in the face of private licensing or technological protection strategies. Aside from the incongruence between the exceptions and the actual practices of Canadians, each of the exceptions above is rendered void if a TPM is circumvented in the process of making the reproduction. The statutory damage limit similarly does not apply wherever TPMs were circumvented. As a result, owners who choose to employ TPMs to protect their works are still largely in control over how their works are used, leaving users exposed to enormous liability if they try to take advantage of these "exceptions" by using circumvention tools.

The anti-circumvention provisions make the manufacture, marketing, sale or importation of circumvention tools or services illegal, (88) In addition, moreover, any individual act of circumvention by end-users of tools intended to control access or copying of protected materials is also prohibited. (89) Besides severely curtailing these new "exceptions" in favour of owner protection strategies, these anti-circumvention provisions do not exempt uses that are already legal under the existing Act, such as fair dealing and private copying. Consequently, putting a digital lock on a work will not only block unauthorized access, but also will prohibit those uses that the Copyright Act has traditionally allowed. For example, the fair dealing provisions allow individuals to make copies of protected works for educational purposes. Suppose a film professor wishes to rip portions of copyrighted films from a DVD in order to create a "reel" for her students, which is infinitely faster and easier with digital media. The DVDs, however, have anti-copying encryption preventing her from making such copies. She downloads a "hack" from the internet that enables her to break the digital lock, allowing her to make the necessary copies. If she had (painstakingly) created the same reel using VHS tapes of the films, the copies would not have constituted an infringement because of fair dealing. Yet, because the format of those films is digital, and she circumvented a TPM in order to make the copies, she would be liable under Bill C-61 's anti-circumvention provisions.

Notably, these anti-circumvention laws appear to be even more restrictive than those provided for by the much-maligned Digital Millennium Copyright Act, (90) whose anti-circumvention penalties only apply to digital locks that prevent unauthorized access to copyrighted material, not unauthorized copying. (91) The distinction allows individuals to maintain the ability to make copies for fair use purposes. (92) Bill C-61's penalties, on the other hand, apply both to access and to copying, and there are no provisions that protect activities which are otherwise considered to qualify as "fair dealing", or which fall within other exceptions under the Canadian Copyright Act. Additionally, the DMCA requires an ongoing, regular review process (93) to consider new categories of exemptions, whereas the Canadian bill leaves it up to the discretion of government (94) to add new exemptions if it decides it is in the public interest, and no regularly scheduled or required oversight process is in place.

The increasing prevalence of TPMs, alongside these new provisions, threatens to prevent users from exercising their private use rights altogether. Removing these rights, or fair dealing as a defence, from anti-circumvention laws effectively grants owners much broader protection than copyright typically provides, as they have a property right not only in the work, but also in the technological tools used to protect that work. (95) Margaret Jane Radin observes that in the era of persistent TPMs, "content owners can use technological protection to foreclose activities that the background public legal regime has made the right of the user". (96) It is indeed commonplace now for content providers to encrypt files in order to limit how many copies can be made and what type of media can be copied, to prevent conversion to different file formats, or to prohibit the making of any copies whatsoever. (97) This ability to "fence in" works technologically gives rise to concerns that users will be unable to exercise rights for which the copyright regime has always allowed, since the user will have to employ an illegal fence-breaking technology either to access or to copy the work. While the fair dealing provision might make that access or copying legal, the use of anti-circumvention tools to enable that access or copying itself becomes an illegal act.

This type of suspicion about TPMs has become quite commonplace, though they are often defended as the only effective means for copyright holders to protect their rights in the digital environment. Though there may be good market-oriented reasons militating in favour of TPMs, (98) the more direct response to the argument above is that users have never had unlimited "rights" to access or to use copyrighted works however they saw fit. The owner of the right has, presumably, always been able to determine the conditions of use of their work, including how and when works are made available for public consumption. (99) TPMs, by this logic, simply protect that right when the work is in digital form, and users do not have a corresponding right to demand that those works be made available to them by the owner in the best format possible--they only have rights to specific uses of the work ,under certain circumstances. It thus follows that a user has no right to break a digital lock on a digital book for research purposes, because he or she could simply find a hard copy of the book in a library that does not have a TPM blocking access. By this logic, the film professor referred to in the example above would simply be out of luck--she would have to resort to the use of some analog format of the film not protected by a TPM in order to make her fair dealing copies. This has led one commentator to note that "the fair dealing defense simply does not create a right for what is the technological equivalent of breaking and entering". (100)

This assertion may seem intuitively correct, but it ignores the reality that most people now access and use content in digital form. Defending TPMs on this basis places additional burdens on users to seek out analog copies of works in order to exercise their fair dealing rights. Considering the primacy of the internet as a research tool and the corresponding drop in print-based research, such a requirement would create barriers to fair dealing use and access that would necessarily tip the copyright balance in favour of owners, who could conceivably limit the distribution of their work to digital formats in order to completely control user access. This argument permits owners to take advantage of the available technologies to protect their rights, but insists that users remain yoked to the historical, pre-digital level of access to exercise their own rights. In other words, the playing field cannot ever be leveled when the owner's team has such a distinct technological advantage.

The level of unprecedented control enabled by TPMs has led "strong copyright" proponents to proclaim a new age of owner exclusivity at the expense of user rights. Gillian Davies argues that the ability to effectively enforce copyright holder rights via TPMs justifies "a return to the principle of exclusive reproduction right", since "the copyright system foresees no inherent and inalienable right of the public to make copies for private use". (101) Barry Sookman agrees, asserting that TPMs are crucial to ensuring adequate protection of authors in an era of massive infringement and reproduction, and that a failure to shelter TPMs amounts to undermining the overarching purpose of copyright itself. (102) While this might seem to be a rather arcane interpretation of copyright's purpose in light of more recent jurisprudence, this is the very direction that copyright might take in an age of prevalent TPMs coupled with strong anti-circumvention laws like those provided for in Bill C-61.

In the absence of equally explicit private use or fair dealing exceptions, this vision of copyright essentially defeats those user rights provided for both by statute and by jurisprudence. If TPMs are increasingly employed to manage copyright owners' interests, it is likely that any recognized right to make private copies for personal use will be thrown out. As a result, one will no longer "own" rights to the works one purchases. Rather, one will have a limited set of "rental" rights over one's copy of the work at the discretion of the copyright owner. (103) In a world where TPMs are heavily protected by legislation like Bill C-61, user rights are at the mercy of a system where copyright owners have full discretion over the exclusivity of their works--a right that was always meant to be tempered by limits under copyright law. (104) If user rights are to survive in this scenario, any anti-circumvention legislation should include an explicit right to personal copies in addition to those activities already excused under the Act. Only by recognizing the intrinsic importance of copyright liberties and personal use can copyright laws effectively serve their purpose. The "private use" exceptions like those in Bill C-61, however, do little to enable average citizens to exercise their user rights when they are so easily defeated by copyright owner interests.

IV RE-ENVISIONING THE "WRONG" IN COPYRIGHT-A THOUGHT EXPERIMENT

Copyright legislation is complex and, at times, incomprehensible to the lay user. Originally, copyright laws were limited to protecting the copyright holder's rights to the creation, distribution, or sale of copies of his or her works, but over time, the laws expanded to include rights to public performance or display, translations, or adaptations. (105) These expanded rights were almost always accompanied, however, by a new set of exceptions aimed at ensuring public access to the works. It was not until the introduction of anti-circumvention provisions that copyright holders were given "control over looking at, listening to, learning from, or using copyrighted works". (106)

The very logic of anti-circumvention provisions is premised on the copy as the central principle of copyright. Such provisions see the need to protect the right of reproduction by any means necessary in order to prevent the "ruinous proliferation of unauthorized copies". (107) This is how the "wrong" in copyright law has traditionally been defined: it is the interference with the copyright owner's right of reproduction that constitutes the mischief at which copyright laws are generally aimed. If we continue to think of all copying as wrongful from the start, however, the validity of the user right in copyright law remains in question. A private copy will always have to be defined in opposition to, or as an exception to, the unlawful act of copying, despite the Supreme Court's support for consideration of user rights.

Jessica Litman makes some tenable arguments against this preoccupation with the copy in light of how the stakes have changed due to digital technology. The fixation on the right of reproduction is anachronistic in the digital era. Historically, the copy was employed as the "actionable unit" of copyright because copies at that time were easy to track and count, thus providing a "useful benchmark" for determinations of infringement. (108) The copy was only the focus of copyright because of its utility as a yardstick for the violation of owner's rights--not because the act of copying itself was "fundamentally invasive of an author's rights". (109)

The sheer ubiquity of the copy in the digital age leads one to ask whether the reproduced unit is still an effective means of evaluating the "wrong" in copyright. Since we make countless digital copies purely through the process of exercising our own copyright liberties of reading, writing, and listening, copying is now a necessary element in consuming any digital media, (110) Recalling Drassinower's proposal, the ability to exercise such liberties may also be a crucial part of authorship itself. Perhaps it is time to move beyond the insistence that the copy is evidence of the actual harm in copyright, (111)

This consideration finds support in Canadian courts as well. Drassinower points out that the Supreme Court's characterization of fair dealing as a positive user right in CCH suggests that it is not the act of reproduction itself that is unlawful in copyright. (112) The mere existence of the fair dealing defence, which allows the act of copying for certain purposes, affirms that copying itself is not the problem. (113) The Court has adopted this idea in later decisions, finding that cases of substantial reproduction still may not attract copyright liability. (114) Echoing the concerns above regarding the encroachment of TPMs on user rights, he asserts that "to insist on reproduction as the central organizing category of copyright law is to upset the copyright balance so as to grant owners a new and unprecedented control of access to copyrighted works". (115)

The solution may well be to redefine copyright in terms that make sense in the digital age. As Litman suggests, this would require courts and legislators to ask not whether a copy was made, but whether that copy or use of the work invades the owner's "exclusive right of commercial exploitation". (116) Placing uses on a continuum of exploitation and enjoyment would allow courts to move away from the overemphasis on the right of reproduction, and more accurately capture the type of unlawful conduct that copyright originally sought to address. A more balanced copyright scheme would do away with the copy and consider uses based on the degree to which the interests of the author are prejudicially affected. Private use, under Litman's model, would be legal so long as the copy does not interfere with the copyright owner's right to profit from their works. This approach would widen the breadth of personal uses available, while still respecting the copyright incentives necessary for authors. Finally, such a model recognizes that while authors still have certain rights to exploit their work, they should not encroach upon the free exercise of copyright liberties upon which authors themselves rely to generate new works.

Clearly, there are practical drawbacks to Litman's conception of placing uses on a "continuum" of exploitation and enjoyment, which introduce uncertainty to the process of determining infringement. (117) The limits of "private activities" are also difficult to define--how far does the private sphere of personal use extend? At what point can one definitively say that the personal use of a work crosses the threshold of interference with the copyright holder's rights of exploitation? Finally, in addition to the strong opposition it would face from copyright stakeholders and industries, this proposal would clearly derogate from international copyright treaty obligations, which rely heavily on the right of reproduction. (118)

Litman's suggestion may be a radical one, but it helps to illuminate the tensions that arise between copyright law and cultural practice in the digital age. Information is no longer limited by the restraints of a physical container, indicating that the existing model of copyright that is "premised on scarcity and physical limitations" demands rethinking. (119) Though the optimal balance of copyright has not always been obvious, the traditional "safety valves" in copyright law that were developed in order to calibrate this balance typically operated best in a "print-based world". (120) It is clear that the conditions of production, consumption, and distribution have undergone a radical shift as a result of digital technology--leading one to ask whether an equally radical shift in copyright law is also warranted.

One of the most compelling reasons to adopt the right of commercial exploitation over the right of reproduction is because it makes sense to average individuals--or alternately, because most citizens probably break the existing rules on a daily basis without even knowing it. As most people can now "perform the twenty-first century equivalents of printing, reprinting, publishing, and vending", the scope of copyright's reach has expanded far beyond the professional realm, where copyright holders were always able to employ lawyers to interpret these complex laws for them. (121) As Litman maintains:
   We can continue to write copyright laws that only copyright lawyers
   can decipher, and accept that only commercial and institutional
   actors will be likely to comply with them, or we can contrive a
   legal structure that ordinary individuals can learn, understand,
   and even regard as fair. (122)


When viewed from this perspective, Litman's ideas seem far less radical. It makes sense to create copyright rules that are comprehensible to average citizens whose daily activities are now targeted by copyright holders, but who simply cannot make sense of existing laws that were arguably never intended to include them. We lend books to friends or family without liability, but for some reason it becomes illegal once those books are in digital form. We lend or pass on CDs, but cannot email a friend a digital copy of a single song. Granted, there is an important difference raised by such examples, in the sense that only one copy is passed around in the analog example of passing on a book or CD to a friend. Arguably, the author's rights of exploitation would never be affected by the first act, but may be affected by the second act where a perfect copy is substituted for a potential sale. Nonetheless, the point of such examples is to illustrate the incongruence between everyday practice and the new rules surrounding digital materials. The cultural practice is the same--the exercising of "copyright liberties"--but the legal implications are vastly different depending on whether those materials are digital or not.

Whether or not this is the best manner in which to approach digital copyright, it seems clear that copyright now makes little intuitive sense to the average citizen--the "user" whose rights and interests are to be balanced fairly with those of authors. What makes sense to them, arguably, should at least be a part of the conversation when it comes to reforming our copyright regime. Talking about what the ideal set of laws would look like from a user's perspective can only help provide the kind of balance that the Supreme Court sought to achieve in Theberge and CCH. Copyright reform remains on the federal government's agenda. The time is ripe for initiating the types of conversations that can imagine a copyright regime which recognizes the centrality of user rights in a healthy public domain.

V CONCLUSION

Recent changes in the music industry indicate that market innovation may well win out over government protectionism. Apple, Inc. recently removed the copy-control TPMs from most of the 10 million digital tracks sold on its digital media vendor iTunes, with most major record labels on board with the promise of a variable pricing scheme; all iTunes songs were previously 99 cents each. (123) Ironically, the very industry that led the litigation charge against individual file-sharers is discovering that control over the copying or sharing of music is not the most effective way to reach consumers in the digital marketplace.

The fact that one of the major distributive channels of copyrighted content has chosen to deliver material in a way that is less restrictive for end-users is telling. It indicates that the market may simply be adapting to the realities of the internet and the sheer inability to control unauthorized copying and sharing adequately. It may even indicate an underlying shift in the way copying or sharing for personal use is understood, even by those who have conventionally sought to overprotect owner rights. These kinds of shifts in the market for cultural goods stand in stark contrast to Bill C-61's provisions, suggesting that the government's approach is perhaps out of step even with the industry and rightsholders' interests, who themselves are abandoning the technologies so heavily protected by the bill. As Canada waits for the next round of copyright reform, it seems clear that the Supreme Court and the marketplace are recognizing that copyright's purpose has to adapt to the rapidly changing conditions of cultural practice. What remains to be seen is whether legislative reform can adequately capture such a shift in a way that respects both owner and user rights. Whatever form this takes, it seems clear that the preoccupation with controlling copying and sharing activities when they do not interfere with the author's ability to exploit their works should be reconsidered. This would necessarily include a clear sphere of protection around the end-user's right to exercise their "copyright liberties"--to read, listen and enjoy works for non-commercial, private purposes that do not prejudicially affect the author's interests. This would also require that these rights are not at the mercy of private strategies, including the use of TPMs, meaning that provisions must be included to allow end-users to exercise their rights without fear of liability.

The most recent efforts to reform the legislation appeared to honour the notion of private use. Closer examination showed that they effectively hollowed out those protections by way of anti-circumvention provisions, putting far too much control in hands of owners for the potential new Act to be called a fair and balanced copyright regime. What is needed is clear recognition from Parliament of the necessity of fair user rights within the copyright regime that can effectively co-exist with author rights. Such recognition will promote access to works, but will also encourage the creative process itself, particularly in the digital era where the line between user and author is no longer easily discernible. Katie Sykes observes that the confusion surrounding the optimal balancing of copyright interests creates a "murky gap between paradigm and practice" that "renders copyright indeterminate and malleable, easily enlisted into the service of particular interests". (124) The legislative reform process seems particularly vulnerable to this "gap": the powerful culture industries who are best in the position to enlist copyright in their own interests may well argue that, in the digital era, user rights are merely "historically and technologically contingent". (125) Parliament now has an opportunity to ensure that the Act remains tied to a coherent purpose that aims to balance the interests at stake--rather than deploy copyright as a tool used by owners to prevent users from exercising those freedoms that have always been a vital part of copyright.

* The author gratefully acknowledges the assistance of the Senior Board Notes, Comments and Reviews Editors, in particular Lead Researcher Adam Lazier, and the Senior Editors of the University of Toronto Faculty of Law Review. The author also thanks Andrea Slane and the Centre for Innovation Law and Policy (CILP). Certain portions of this paper were written and researched by the author in service of the CILP's project on digital copyright reform (http://www.innovationlaw.org) and are reproduced here with permission.

(1) WIPO is a specialized United Nations agency whose mandate is to promote the protection of intellectual property worldwide by ensuring administrative cooperation and harmonization amongst member states, and to administer international treaties dealing with intellectual property. It currently has 184 member states, including Canada, and administers 24 treaties. Among these are the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), often collectively referred to as the "WIPO Internet Treaties".

(2) Despite some disagreement as to a clear definition, the term "Web 2.0" refers generally to the use of the Internet as a platform for various applications or websites that promote user participation and creation, collaboration, information sharing, and interactivity, all of which is housed and accessible online (hence the frequent reference to "web-based applications"). Included under the Web 2.0 umbrella are social networking sites like MySpace or Facebook, blogs, wikis and video sharing sites like YouTube. Typically, Web 2.0 technologies rely on user participation--the more users participate or contribute, the better they tend to "work". See generally Tim O'Reilly, "What is Web 2.0?" O'Reilly Network (30 September 2005), online: Oreillynet.com <http://www.oreillynet.com/pub/a/oreilly/ tim/news/2005/09/30/what-is-web-20.html>.

(3) R.S.C. 1985, c. C-42 [Copyright Act].

(4) Namely, Theberge v. Galerie d'Art du Petit Champlain Inc., [2002] 2 S.C.R. 336 [Theberge]; CCH v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 [CCH]; and Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427 [SOCAN].

(5) Bill C-61, An Act to Amend the Copyright Act, 2nd Sess., 39th Parl., 2008 [Bill C-61].

(6) Fair dealing provisions are contained within ss. 29-29.2 of the Copyright Act, supra note 3. Fair dealing rights generally operate as a defence to activities that would otherwise be considered infringements, if committed for the specified purposes of research or private study, criticism, review, or news reporting. Unlike the American "fair use" doctrine, however, the activities which constitute fair dealing are considered an exhaustive and closed list in Canada.

(7) Although Bill C-61 never made it past first reading in Parliament, the federal government has placed copyright reform on its agenda and it seems inevitable that a new bill will surface. Furthermore, a future bill is likely to deal with similar issues regarding protection of copyright in the digital age, including anti-circumvention provisions discussed later in this paper.

(8) In particular, see Litman's work on personal use in Jessica Litman, "Lawful Personal Use" 85 Tex. L. Rev. 1871 at 1893 [Litman, "Personal Use"]; and on digital copyright issues in Jessica Litman, Digital Copyright (Amherst: Prometheus, 2001 ) at 175 [Litman, Digital].

(9) Samuel J. Trosow, "The Illusive Search for Justificatory Theories: Copyright, Commodification and Capital" (2003) 16 Can. J.L. & Jur. 217 at 224.

(10) Catherine Ng, "When Imitation is Not the Sincerest Form of Flattery: Fair Dealing and Fair Use for the Purpose of Criticism in Canada and the United States" (1997) 12 I.P.J. 183 at 189-90.

(11) In Canada, the various exceptions to copyright are determined by statute and an applicable exception must be proven by the defendant once infringement has been determined. The primary exceptions pertaining to end-users are dealt with under the fair dealing provisions in ss. 29-29.2 of the Copyright Act, supra note 34. Additionally, there are exceptions that apply to educational institutions, libraries, archives and museums, backup copies of computer programs, ephemeral recordings, and persons with perceptual disabilities. See ss. 29.4-32 of the Copyright Act.

(12) Ng, supra note 10 at 189-90.

(13) See Trosow, supra note 9 at 226-30 for a good overview of the utilitarian justification for copyright law. See also generally, William M. Landes & Richard A. Posner, "An Economic Analysis of Copyright Law" (1989) 18 J. Legal Stud. 325.

(14) David Vaver, Intellectual Property Law (Toronto: Irwin Law, 1997) at 2.

(15) Ibid. It is worth noting that Vaver's conception of intellectual property starts out from the public domain from which exclusive rights are doled out, whereas more contemporary visions of copyright law tend to suggest the reverse of this state of affairs--that intellectual property rights flow from the author to the public.

(16) Abraham Drassinower, "A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law" (2003) 16 Can. J.L. & Jur. 3 at 20 [Drassinower, "Idea/Expression"].

(17) Also known as the "Copyright Clause", the U.S. Constitution empowers Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries": U.S. Const. art. I, [section] 8, cl. 8.

(18) "[Clopyright law is neither tort law nor property law in classification, but is statutory law. It neither cuts across existing rights in property or conduct nor falls between rights and obligations heretofore existing in the common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute." Compo Co. Ltd. v. Blue Crest Music et al., [1980] 1 S.C.R. 357 at 372-73 [Compo].

(19) Carys J. Craig, "Locke, Labour and Limiting the Author's Right: A Warning Against a Lockean Approach to Copyright Law" (2002) 29 Queen's L.J. 1 at 12-16.

(20) Ibid. at 12. Craig canvasses key cases in English and Canadian law to reveal the prevalence of the Lockean rhetoric in much of the reasoning, with courts often protecting plaintiff rights on the basis of the labour employed to create the work (or, conversely, on the defendant's failure to exert any creative efforts in their use of the work): ibid. at 16-20.

(21) Bishop v. Stevens, [1990] 2 S.C.R. 467 at para. 21, citing Performing Right Society, Ltd. v. Hammond's Bradford Brewery Co., [1934] 1 Ch. 121 at 127.

(22) David Fewer, "Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada" (1997) 55 U.T. Fac. L. Rev. 175 at 192. Fewer was referring specifically to the standards required by the Berne Convention--an international agreement governing copyright laws. The convention was first accepted in Berne, Switzerland in 1886, and requires signatory countries to recognize foreign copyrights of other signatories and the implementation of strong minimum standards for copyright law: Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 U.N.T.S. 221, online: <http://www.wipo.int/treaties/en/ip/berne/> [Berne].

(23) Craig, supra note 19 at 14-15. There are alternative views of the jurisprudence on copyright, with some claiming that such decisions ultimately fail to align Canadian copyright within either theoretical approach. David Fewer maintains that "judicial pronouncements about the nature of copyright have merely amounted to an assertion that the Copyright Act benefits authors by granting them a form of property--assertions that are, in fact, entirely consistent with both the natural rights and utilitarian approaches to copyright law": Fewer, supra note 22 at 192. In any case, it might be fair to say that up until the "trilogy" (described below), the jurisprudence was unclear as to the overall purpose of the copyright regime. 24 The "trilogy" consists of Theberge, CCH and SOCAN, supra note 4.

(25) The third case, SOCAN, ibid., is understood as a landmark case primarily due to the Court's affirmation that the "caching" of copyrighted works by Internet Service Providers (ISPs) did not constitute infringement under the Copyright Act. Additionally, Binnie J. commented that there is a public interest in encouraging the development and expansion of digital technology, and declined to hinder that technology by imposing liability on ISPs who were only "conduits" of protected material. For the purposes of this note, since the public interest issue is limited primarily to the incidental act of caching and less about end-user engagement with copyrighted works, it will not be discussed in detail here.

(26) Theberge, supra note 4 at para. 30.

(27) Daniel J. Gervais, "The Purpose of Copyright Law in Canada" (2005) 2 U. Ottawa L. & Tech. J. 315 at 320 [Gervais, "Purpose"]. Notably, other copyright scholars maintain that Theberge has only served to confuse subsequent copyright jurisprudence, arguing that a "balance" is not supported by the words of the Copyright Act. See e.g. Teresa Scassa, "In the Balance: The Purpose of Canada's Copyright Act" (Paper presented to the Centre for Innovation Law and Policy Copyright Symposium, University of Toronto, 30 January 2009) [unpublished].

(28) Theberge, supra note 4 at para. 31.

(29) Ibid. at para. 32.

(30) Gervais, "Purpose", supra note 27 at 317.

(31) Theberge, supra note 4 at para. 38.

(32) Abraham Drassinower, "The Art of Selling Chocolate: Remarks on Copyright's Domain" (2007) 4 U. Ottawa. L. & Tech. J. at 8 [forthcoming], online: <http://ssrn.com/abstract=1143324>.

(33) CCH, supra note 4.

(34) Under s. 29 of the Copyright Act, supra note 3, "[flair dealing for the purpose of research or private study does not infringe copyright". In a typical fair dealing analysis, should the use of copyrighted material fall under one of the enumerated categories, a court will have to also find the use "fair". CCH was significant in setting out a list of factors in determining fair use, including the purpose, character, and amount of the dealing; the alternatives available to the dealing; the nature of the work in question; and the effect of the dealing on the work (including whether it operates as a market substitute): CCH, ibid. at paras. 53-59. 35 CCH, ibid. at para. 48.

(36) Giuseppina D'Agostino, "Healing Fair Dealing? A Comparative Copyright Analysis of Canada's Fair Dealing to U.K. Fair Dealing and U.S. Fair Use" (2008) 53 McGill L.J. 309 at 315 [D'Agostino].

(37) Abraham Drassinower, "Taking User Rights Seriously" in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright (Toronto: Irwin Law, 2005) 462 at 463 [Drassinower, "User Rights"].

(38) D'Agostino, supra note 36 at 327.

(39) Though the categories of permissible purposes for fair dealing remain a closed list, McLachlin J.'s comments certainly opened the door for a more expansive reading of the activities which might fall into each of the categories and whether those activities were in fact "fair": CCH, supra note 4 at para. 48. Daniel J. Gervais also suggests that the Court, in enumerating a six-factor list to aid in the determination of whether a use was "fair", provided more flexibility in fair dealing comparable to that of the American fair use doctrine, of which the categories are open but the criteria are arguably more rigid. Canada's fair dealing doctrine, in contrast, has a closed list but a more open and flexible set of criteria as to what might fall into that list. See Daniel J. Gervais, "Canadian Copyright Law Post-CCH" (2004) 18 I.P.J. 131 at 159.

(40) Gervais, "Purpose", supra note 27 at paras. 16-17.

(41) These decisions have certainly elicited criticism. Regarding CCH in particular, some have noted that the Court was effectively engaging in policy-making by expanding the concept of "user rights" beyond the exceptions explicit in the Copyright Act, and potentially violating international legal standards for such exceptions set out by the Berne Convention, supra note 22, that should be dealt with by Parliament rather than by the courts. See Veronica Syrtash, "Supra-National Limitations on Copyright Exceptions: Canada's Ephemeral Exception and the 'Three-Step Test'" (2006) 19 I.P.J. 521 at 567-68.

(42) Litman, "Personal Use", supra note 8 at 1893. Notably, Litman does not refer to these activities as "rights" per se, presumably because they do not necessarily have a legal character under existing copyright regimes. Rather, they are viewed as liberties--freedoms--that, in her view, should be part and parcel of one's ability to engage with a creative work, regardless of their legality.

(43) Craig, supra note 19 at 42.

(44) Ibid. at 44.

(45) Compo, supra note 18.

(46) Fewer, supra note 22 at 188.

(47) Ibid.

(48) Ibid.

(49) Drassinower, "User Rights", supra note 37 at 466.

(50) Abraham Drassinower, "A Rights-Based View of the Dichotomy in Copyright Law" (2003) 16 Can. J.L. & Jur. 3 at 5 [Drassinower, "Dichotomy"]. It is important to point out that Drassinower does not sit on either the "natural rights" or the "utilitarian" side of the fence--rather, he posits that rights-based views do not necessarily defeat the utilitarian function of the public domain, a position that might be considered as an alternative to the predominant notion that the competing theories of copyright are mutually exclusive. Drassinower maintains that copyright is essentially an intersubjective regime which is more about the relationship between the author and his or her audience, rather than the author and his or her work. Relying on the centrality of the "idea-expression dichotomy" in copyright law to explicate his view, Drassinower notes that copyright does not protect all of the author's labour--only the expression of one's ideas; a defendant in an infringement action is only enjoined from copying the author's original expression of their ideas. The defendant's entitlement to his or her own authorship based on the public availability of ideas thus limits the plaintiff's claims. Copyright is based not on labour, according to Drassinower, but on the "equality of parties to a copyright action as authors"; it is each party's entitlement to their own authorship that grounds copyright protection. In this manner he argues that copyright is in fact an internally consistent and coherent regime.

(51) Drassinower, "User Rights", supra note 37 at 466.

(52) Ibid.

(53) Scott Monkman, "Corporate Erosion of Fair Use: Global Copyright Law Regarding File Sharing" [2006] Asper Rev. of Int'l Bus. & Trade Law 265 at para. 5.

(54) Gervais, "Purpose", supra note 27 at paras. 32-34.

(55) Ibid. at para. 38.

(56) Steven Penney, "Crime, Copyright, and the Digital Age" in Law Commission of Canada, eds., What is a Crime? Criminal Conduct in Contemporary Society (Vancouver: UBC Press, 2004) at 15, online: SSRN <http://ssrn.com/abstract=439960>.

(57) Litman, "Personal Use", supra note 8 at 1872-73.

(58) Litman points to cases in the US, such as A&M Records Inc. v. Napster, 239 E3d 1004 (9th Cir. 2001), in which courts have set a dangerous precedent by concluding that file-sharing via peer-to-peer ("p2p") networks was a commercial copying and not a personal one, seemingly swayed by the sheer volume of copies being traded over the Napster network rather than considering that each one might, on its own, be for private use: ibid. at 1893. More recently, in the 2007 decision in Capitol v. Thomas, the Recording Industry Association of America successfully won its first lawsuit against an individual file-sharer for copyright infringement (all other individuals had previously chosen to settle). Jammie Thomas was ordered by a Minnesota District Court to pay $222,000 for illegally downloading 24 songs ($9,250 per song): Associated Press, "Downloader faces the music, fined $222,000" CBCnews.ca (5 October 2007), online: CBCnews.ca <http://www.cbc.ca/technology/story/2007/10/04/musiccourt.html>. Though Thomas's activities may well have been illegal under US Copyright law, their de minimis nature and the grossly disproportional penalties ordered give credence to Litman's concerns over the recording industries' war on "unauthorized personal use".

(59) Litman, Digital, supra note 8 at 175.

(60) The legal status of downloading materials over p2p networks in Canada is unclear. The latest word on the issue came from the Federal Court of Appeal in BMG v. John Doe (2005), 252 D.L.R. (4th) 342, 2005 FCA 193 [BMG], in which the major record labels sought to have ISPs release the identity of individual downloaders. The Federal Court refused to require the release of the information, further noting that downloading for personal use was not an infringement, and that leaving copyrighted material in a shared directory did not constitute the "positive act" required to be an authorization or distribution under the Copyright Act. The Federal Court of Appeal upheld the result, but took issue in obiter with some of the Motion Judge's comments regarding the legality of uploading and downloading copyrighted materials online, noting only that the matter was decided prematurely and refusing to comment decisively on the issue.

(61) WIPO Copyright Treaty, 20 December 1996, 2186 U.N.T.S. 121, online: <http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html> [WCT].

(62) WIPO Performances and Phonograms Treaty, 20 December 1996, 2186 U.N.T.S. 203, online: <http://www.wipo.int/treaties/erdip/wppt/trtdocs_wo034.html> [WPPT].

(63) Preamble, WCT, supra note 61.

(64) The "making available" right would give performers and producers of sound recordings the right to determine whether, and how, their works are shared online. This would make it clearly illegal for an individual to post copyrighted material online--whether on a website, a p2p network, or a social networking site--without the owner's consent.

(65) Berne, supra note 22.

(66) Selena Kim, "The Reinforcement of International Copyright for the Digital Age" (2002) 16 I.P.J. 93 at 96.

(67) WCT, supra note 61, arts. 11 & 12. TPMs (technological protection measures) and RMI (rights management information) are both forms of Digital Rights Management ("DRM"), or technologies used by copyright owners to limit access, copying, or conversion of digital works, media, or devices, and to manage rights information. These technologies have emerged in response to the advent of digital technologies enabling the mass duplication and distribution of media, and are employed primarily by industries that rely heavily on copyright protection (particularly film, television, or music). TPMs are essentially digital or electronic "locks" that allow copyright holders to control access or use of their works in a digital environment. Some examples o( TPM include encryption technologies that limit access to content to certain devices, software that will block DRM-restricted content, or limits on how many times you can access or use a file (often used with music files). RMI is generally any information embedded in a digital work ("metadata") that identifies the owner or author of a work and defines the terms of permitted access and use of that material, and is often used in conjunction with TPMs. While TPMs are directed more at blocking or controlling access, RMIs are more concerned with maintaining the integrity of the rights information associated with a digital work.

(68) According to WIPO, the effect of a signature does not create a binding legal obligation--this is only done after a country has ratified the treaty. Canada's status as a mere signatory has led some scholars to argue that the only obligation Canada has is to ensure its copyright legislation is not inconsistent with the terms laid out in the WCT, supra note 62 and WPPT, supra note 61. Contending that Canada already has strong copyright legislation in place compared to other countries who have reformed their laws to be WIPO-compliant, these critics warn that the WIPO treaties should not be the sole guiding principles for reform, and criticize the government's discussion of Canada's "obligations" as the motivating force behind copyright reform or as a justification for some of its more controversial provisions. See Howard Knopf, "Canada, WIPO, and 'certain obligations'", Excess Copyright (11 Feb 2008), online: <http://excesscopyright.blogspot.com/2008/02/ canada-wipo-and-certain-obligations, html>.

(69) Key government documents pertaining to the copyright reform process include the Framework for Copyright Reform (Ottawa: Industry Canada and Canadian Heritage, 2002), online: <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/rp01101.html>; the 2001 Consultation Paper on Digital Copyright Issues (Ottawa: Industry Canada and Canadian Heritage, 2001), online: <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01102.html>; and An Overview of Submissions on the Consultation Paper on Digital Copyright Issues (Ottawa: Industry Canada and Canadian Heritage, 2002), online: <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/rp00842.html>. The latter is the government's summary of over 700 stakeholder submissions made in relation to the consultation paper. The primary issues identified for reform were the introduction of a "making available" right for performers and producers of sound recordings, legal protection for TPMs and RMI, and clarifying the liability of ISPs.

(70) Bill C-60, An Act to Amend the Copyright Act, 1st Sess., 38th Parl., 2005, was the earlier reform endeavour. Though it addressed many of the same issues as Bill C-61 (including the introduction of a "making available" right, ISP liability and anti-circumvention provisions), Bill C-61 will be the focus of this note due to its status as the most recent version of copyright reform, the public outcry due to the lack of consultation on the Bill and the new "private use" exceptions that were unique to Bill C-61 and that are particularly germane to this discussion about user rights and TPMs. For general commentary on Bill C-60, see J. Andrew Sprague, "Federal Government Introduces Bill C-60 ('An Act to amend the Copyright Act')" (September 2005) 9:2 Internet & Technology Law 23; Nora Rock, "Bill C-60 Satisfies ISPs, Disappoints Educators" (17 October 2005) 11:31 Law Times 9.

(71) It is worth emphasizing that these "private use" exceptions were not present in Bill C-60. While it is unknown whether they were included in the earlier version of Bill C-61 that was delayed in late 2007, it is possible that they were added to the bill as a response to the reason for the delay--the result of a widespread, grassroots effort to ensure more public consultation, while advocating for a balanced and "fair" set of amendments to the Copyright Act.

(72) Bill C-61, supra note 5. Notably, the government situated the amendments within its "broader intellectual property strategy", characterized them as an attempt to fulfill promises made in the 1997 Throne Speech and made little reference to the WIPO Internet Treaties as motivation for the bill. Nevertheless, the preamble to the bill does claim that the bill contains norms that are "reflected" in the WIPO Internet Treaties and identifies these norms as absent in the current Copyright Act.

(73) 17 U.S.C. [section] 1201 1998 [DMCA]. See also "Copyright reform bill critics eye victory" CBCNews.ca (10 December 2007), online: CBCNews.ca <http://www.cbc.ca/technology/story/2007/12/10/tech-copyright.html>.

(74) Industry Canada, "Reforming the Copyright Act: Backgrounder" (18 June 2008), online: Industry Canada <http://www.ic.gc.ca/eic/site/crp-prda.nsf/ eng/h_rp01151.html> [Bill C-61 Backgrounder].

(75) Industry Canada, News Release, "Government of Canada Proposes Update to Copyright Law: Balanced Approach to Truly Benefit Canadians" (12 June 2008), online: Industry Canada <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01149.html>.

(76) Supra note 69.

(77) Supra note 70.

(78) Bill C-61, supra note 5, cls. 7 & 9. This right would help to clarify the confusion surrounding the legality of p2p file-sharing and music downloading in Canada, which was significantly muddied by the decision in BMG, supra note 60. That decision suggested to some that p2p file sharing was actually legal in Canada. See Gregory R. Hagen and Nyall Engfield, "Canadian Copyright Reform: P2P Sharing, Making Available and the Three-Step Test" (2006) 3 U. Ottawa L. & Tech. J. 477 at 485. Though the existing Copyright Act does not clarify a "making available" right for authors of works, the Act does grant authors an exclusive right to communicate a work to the public by telecommunication, which some have argued is sufficient to qualify as a "making available" right for authors. See Copyright Act, supra note 3, s. 3(1)(f). 79 Bill C-61 Backgrounder, supra note 74.

(80) Bill C-61, supra note 5, cl. 17, s. 29.21.

(81) Ibid., cl. 17, s. 29.22.

(82) Simulcast webstreams are internet transmissions that are simultaneously being broadcast over television or radio.

(83) Bill C-61, supra note 5, cl. 17, s. 29.23. It may come as a surprise to many Canadians that time-shifting is currently not legal under the Copyright Act, though there has not been any attempt to litigate such activities in Canada. The ability to record television programs for time-shifting purposes has been settled as "fair use" in the United States: see Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

(84) PVRs in Canada currently only permit the storage of recorded programs on the network for a limited period of time, after which time they will be automatically deleted by the network. Some providers, however, are hoping to release PVR recorders that allow users to archive programs indefinitely, in spite of the potential that doing so would infringe this type of provision should it become law. See Michael Geist, "Bell's PVR Legal Woes the Tip of the C-61 Iceberg" Michaelgeist.ca (18 August 2008), online: michaelgeist.ca <http://www.michaelgeist.ca/content/view/3304/159/>.

(85) Copyright Act, supra note 3, s. 38(1).

(86) Bill C-61, supra note 5, cl. 30(1).

(87) The "Private Copying Levy", dealt with under s. 80 of the Copyright Act, was introduced in 1988 in order to allow private copying of pre-recorded musical works, performances, and sound recordings onto blank audio recording media (including cassettes, CDs and mini-discs). The levy is often described as a copying "right", but in fact the exception only exists in conjunction with a parallel "right of remuneration", whereby eligible authors, performers, or producers of sound recordings are given the right to collect royalties from levies applied to manufacturers and importers of blank audio recording media--the cost of which is ultimately borne by the end-user, absorbed into the retail price of the medium. As a result, the private copying scheme is less an "exception" than a way to continue to compensate authors for copying activities that are essentially impossible to monitor and prosecute. The Canadian Private Copying Collective (CPCC), which administers the levy, has attempted to bring digital technologies such as MP3 players under the levy, but has not been successful due to the Federal Court of Appeal's narrow interpretation of "blank audio recording medium". See Canadian Private Copying Collective v. Canadian Storage Media Alliance (2004), 247 D.L.R. (4th) 193, 2004 FCA 424 at para. 153.

(88) Certain activities are exempt from these anti-circumvention provisions. Any activities relating to law enforcement or the protection of national security would be exempt. Reverse engineering, security testing, and encryption research--activities that "facilitat[e] innovation and research in the high-tech field"--would also be exempt from liability. For individuals, exemptions are made for the purposes of making computer programs interoperable, for persons with perceptual disabilities and for protecting one's personal information. Similarly, RMI would be protected by provisions making it illegal to remove or alter RMI. See Bill C-61, supra note 5, cl. 31, s. 41.21.

(89) Ibid., cl. 31, s. 41.1.

(90) Supra note 73. The DMCA has faced much criticism both in terms of the legislative process and the end result. Key points of opposition deal with its anti-circumvention provisions and notice-and-takedown requirements for Internet Service Providers, which critics view as unfairly biased in favour of copyright holder control. See e.g., David Nimmer, "A Rift on Fair Use in the Digital Millennium Copyright Act" (2000) 146 U. Pa. L. Rev. 673.

(91) Ibid. [section] 1201.

(92) Kim, supra note 66 at 106.

(93) DMCA, supra note 73, s. 1201(a)(1)(C). This section provides the Librarian of Congress with the authority to exempt a "particular class of works" from the anti-circumvention provisions should they prohibit non-infringing use of the work. Nonetheless, the exemptions are likely to remain narrowly targeted due to the constrained rulemaking authority provided by the DMCA. See Robert C. Denicola, "Access Controls, Rights Protection, and Circumvention: Interpreting the Digital Millennium Copyright Act to Preserve Noninfringing Use" (2008) 31 Colum. J. L. & Arts 209 at 213. See also Christopher Moseng, "The Failures and Possible Redemption of the DMCA Anti-circumvention Rulemaking Provision" (2007) 12 J. Tech. L. & Pol'y 333.

(94) Bill C-61, supra note 5, cl. 31, s. 41.2

(95) Kim, supra note 66 at 109.

(96) Margaret Jane Radin, "Regulation by Contract, Regulation by Machine" (2004) 160 J. Int'l & Theor. Econ. 1 at 11, online: <http://ssrn.com/abstract=534042>.

(97) Monkman, supra note 53 at para. 17.

(98) Barry Sookman lists a number of these: they enable more choice in terms of how content is delivered, which can favour the end-user by providing a range of consumer choice and, in some cases, lower prices; they can also "level the playing field" for smaller businesses, which can employ TPMs to reduce the risks associated with entering into the market, and following this, TPMs might be said to promote competition in the digital marketplace for content. See Barry B. Sookman, "'TPMs': A Perfect Storm for Consumers: Replies to Professor Geist" (2005) 4 C.J.L.T. 23 at 31.

(99) Ibid. at 34.

(100) Ibid.

(101) Gillian Davies, Copyright and the Public Interest, 2d ed. (London: Sweet & Maxwell, 2002) at 292.

(102) Sookman, supra note 98 at 26.

(103) Monkman, supra note 53 at para. 17.

(104) Notably, other jurisdictions such as Australia and Japan have revised their copyright statutes to include anti-circumvention laws in compliance with the WIPO internet Treaties, but have chosen to limit the provisions to the manufacture and sale of circumvention tools, hence leaving the act of circumvention alone. This omission appeared to be a conscious decision by legislators in an effort to ensure that individual users were not prohibited from making lawful uses of works under existing exceptions like fair dealing or private copying. See Kim, supra note 66 at 110-12.

(105) Litman, Digital, supra note 8 at 176.

(106) Ibid. [emphasis in original].

(107) Ibid. at 177.

(108) Ibid.

(109) Ibid.

(110) Ibid. at 178.

(111) Ibid. at 177-78.

(112) Drassinower, "User Rights", supra note 37 at 474.

(113) Ibid.

(114) In SOCAN, supra note 4 at para. 116, for example, the Supreme Court found that the reproductions made in the process of "caching" did not constitute infringement as it did not affect the economic interests of the copyright owners.

(115) Drassinower, "User Rights", supra note 37 at 473.

(116) Litman, Digital, supra note 8 at 180.

(117) Ibid. at 181. She maintains, nevertheless that the purported "brightness of the current lines" between permitted and unpermitted activities is itself "illusory," referring to the everyday practices of citizens whose activities, which fall into a nebulous zone of legality, technically constitute unauthorized uses under copyright law but will likely never be litigated.

(118) Litman herself acknowledges that her proposal is a radical one which ignores these practical implications as well as the "presumed antagonism" from copyright holders. Ibid. at 189.

(119) Trosow, supra note 9 at 219.

(120) Ibid. at 220. Trosow points to various doctrines that have always served, in some sense, to limit author entitlement, including the idea-expression dichotomy (ideas are not copyrightable, only the fixed expression of those ideas); the first sale doctrine (an individual may do what they wish with their legally acquired work); requirements of originality; limits on the duration of the copyright term; fair dealing; and the eventual migration of a work into the public domain. These valves, he notes, were aimed at encouraging the "flow of information essential to innovation, progress, and democratic discourse, not simply to promote the right of the owner to exclude others".

(121) Litman, Digital, supra note 8 at 178.

(122) Ibid. at 179.

(123) Grant Surridge, "Apple changes song copying rules" National Post (7 January 2009), online: National Post <http://www.financialpost.com/story.html?id=1149110>

(124) Katie Sykes, "Towards a Public Justification of Copyright" (2003) 61 U.T. Fac. L. Rev. 1 at 5.

(125) Litman, "Personal Use", supra note 8 at 1872-73.

SARA WEI-MING CHAN, B.A.C.S. (London), M.A. (Toronto), J.D. (Toronto).
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