Chambers: Copyright lawyers prepare for new rules | Legal Post ...

By Mary Teresa Bitti

It?s an exciting time to be an intellectual property lawyer in Canada. After several starts and stops, Bill C-11, a.k.a. the Copyright Modernization Act, is well on its way to the Senate. This is the fourth attempt to reform copyright and bring it into the digital age.

Still, even though it appears to be a done deal at this point, no one seems too happy about it. In fact, significant litigation is anticipated as stakeholders test the limits of the legislation. And intellectual property lawyers who specialize in copyright will clearly play leading roles in determining how the legislation will ultimately be implemented.

It?s fitting to see who Chambers Global 2012 has ranked as leading practitioners in the intellectual property space, as many of those counsel will be involved in the copyright debates going forward.

The topic is an emotional issue for many people, says Barry Sookman, a partner with McCarthy T?trault LLP in Toronto and a Canadian authority and blogger on intellectual property law and copyright. In fact, Mr. Sookman is recognized as a Band 2 ranked practitioner for intellectual property law in Chambers Global 2012, one of two mentions he receives in this year?s directory; he is also ranked as a ?Star Individual? for technology law. McCarthys was ranked as a Band 2 firm in the practice area.

In addition to copyright affecting individuals in more palpable ways than it ever has, there has also been a very prominent activist agitation about digital issues in the social media, he says.

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?When you get people all heated up and vexed about copyright and worried about moral panics, there are great divides ? and to some extent that has impeded rational debate,? Mr. Sookman says.

On one side, creators and rights holders believe the new reforms take away much of their ability to earn a living while giving too much power to the users of their work in the form of expanded fair dealing and user-generated content exceptions. The users of those intellectual works want the Internet to be free and unfettered and are opposed to provisions for new methods of individual enforcement of copyright ? namely digital locks.

Perhaps appropriately, much of the debate has played out online. Everyone is upset and the blogosphere is on fire with criticisms and concerns.

Another part of the problem is the fact that there has been no copyright reform since 1997 and now the government is playing catch up. Mr. Sookman provides some background. ?Since 2000, the government has taken a series of important steps to create conditions to promote electronic commerce. It started by introducing privacy legislation to promote confidence in digital networks, then it introduced electronic commerce legislation, and most recently the government passed an anti-spam law again (Legal Post, March 21) to promote the use of the Internet and get rid of hazards.

?The one piece that had been missing is copyright. In that context, it?s all an attempt to recognize the world is changing. It?s becoming digital and this Act is an important step to build that framework.?

From where he sits having represented both rights holders and users, Casey Chisick, a specialist in intellectual property law with Cassels Brock & Blackwell LLP, believes Bill C-11 and its predecessor Bill C-32 are going about it in the wrong way. Mr. Chisick is ranked as a Band 2 practitioner in Chambers Global, while his firm, Cassels Brock, is recognized as Band 4. ?My view is that these bills have eliminated some of the most modern aspects of the Copyright Act we already had and that?s got nothing to do with digital technology,? Mr. Chisick says.

?In 1997, in the last major round of copyright reform, the Liberal government of the day introduced a whole series of reforms that facilitated collective administration of copyright. Secondary use of copyright is almost inevitably about a series of highvolume, low-revenue transactions that no individual rights holder could practically manage to track or economically afford to enforce. That?s the function of a collective society. Bill C-11 seriously impairs and reduces the scope of what collective societies such as Access Copyright are able to do for the benefit of their rights holders.?

As a result, he also believes the government has failed to meet one of its promises with the legislation: to balance the needs of rights holders and users. ?From an individual rights holder?s standpoint, it?s never been more difficult to enforce individual copyright.?

But given that there is so much intellectual property available on the Internet for free, is copyright protection even possible? ?Of course it is,? Mr. Sookman says. ?If the laws do nothing to help promote the digital exchange for value then it?s a problem. When governments enact legislation that can support the market, the evidence shows that these laws work. Does that mean there is an iron-clad way to prevent all unauthorized file sharing? No. But this is not about getting the very last person to stop file sharing. It?s about giving the creative industries a chance to compete on an even footing because you can?t compete with free.?

And perhaps the best way to do that, according to Mr. Chisick, is to focus on remuneration versus control. ?The answer I suggest would have been not only to maintain but to expand the availability of collective licensing solutions or alternative methods of compensation for copyright that reduce the scope of individual enforcement or licensing but increase the scope of other ways rights holders can earn money.?

For his part, Claude Brunet, who chairs the copyright and entertainment team at Norton Rose Canada LLP, is ranked as a Band 3 practitioner for IP law in Chambers Global 2012. The firm is ranked at Band 2. Mr. Brunet agrees with Mr. Chisick and goes on to argue that the government?s objective of trying to achieve a balance of interest between the two stakeholder groups was misguided.

?The goal of any copyright act is to organize the marketplace for works of the mind. Speaking on my own behalf and no one else?s, all this Act does is introduce exceptions to copyright protection.? He points to expanded fair dealing exceptions particularly in the area of education that will significantly impact authors and book publishers as an example. ?We are going completely the wrong way,? Mr. Brunet says.

?We are choosing control and litigation over a system of seamless remuneration, which we had in place. Bill C-11 creates an environment where the creator and the user are pitted against one another. It?s a piece of legislation that yells, ?So sue me.? We no longer make things. We create works of the mind. If we listen to ISPs and to equipment manufacturers, works of the mind are worth zilch. So what sort of economy are we building here??

Source: http://business.financialpost.com/2012/03/26/chambers-copyright-lawyers-prepare-for-new-rules/

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