Much has happened with copyright law over the past few years. New amendments to modernize the Copyright Act for the internet age were added in 2012. As well there have been several court cases interpreting the impact of digital technologies on copyright doctrine. It is now possible to speak of “digital copyright” as an area of law. In the newly released book Digital Copyright Law published by Irwin Law, I track and analyze these developments. Below I discuss 5 prominent issues which are raised by these changes and that are elaborated upon in the book:
1. What is a digital lock?
By far the most controversial amendment to copyright law, both in Canada and abroad, has been the inclusion of digital lock (“anti-circumvention”) measures. These provisions make it actionable to disable a lock put in place to prevent access to a copyrighted work. A common refrain of complaint is that such locks interfere with fair dealing and other user rights under the Act. But, for the provisions to apply, these locks must be “effective”. Much may be implied into this word. Locks that are easy to circumvent, for example, are likely not included. Nor, I argue should it be the case that measures that operate like digital locks, but which serve other legitimate purposes (think VPNs and the protection of privacy), be included.
2. How broadly will the bittorent infringement enabler provision be applied?
I conclude that the new amendments appear to create a complete regime for the treatment of internet intermediaries (at least for now). There are a couple of notable developments here. First, those who provide digital memory (or “hosts”) are not liable for infringing acts of their clients unless they are made aware of a court decision that says so. Even more intriguing is the new infringement enabler provision, which seems directed at P2P bittorent sites that allow copyrighted music and video content to be shared. But the language of the provision is broad such that it might apply to lesser copyright-infringing sites like Pinterest.
3. Will the “Youtube exception” provide adequate protection for non-commercial creators of content?
Many commentators, both domestically and internationally, took notice when our Act was amended to include a Youtube – or user generated content – exception. This seemed like a smart way to deal with avoiding unworthy infringement suits involving 4 year old babies dancing to copyrighted music in the background. But while the bittorent enabler provision may be overly broad, it appears the youtube exception may be under inclusive. Indeed it may not even protect uploaded dancing baby videos!
4. What does it mean to be an “author” in the digital age?
It is now possible to produce a work telling your computer to compose an orchestral symphony in the key of D minor or to interact with game software to create a unique avatar. In the UK, creators of software code are considered the author of computer-generated works. While these changes were not made to our Act, how would a court deal with these types of cases? When would such activities bear the hallmarks of skill and judgement such that the outcome is a copyrighted work? And if so, who is the author?
5. When will courts order telecoms to produce the names of infringers to copyright plaintiffs?
When someone infringes on the internet, a copyright plaintiff is left with only an IP address. To find the identity of the person behind the address requires the plaintiff to go to court to get an order for the telecom or other intermediary to produce this information. Courts balance the interests of copyright holders against the privacy interests of those associated with the address in determining whether to grant such orders. The problem is complicated by the recent onslaught of claims made by trolls whose business it is to extract exorbitant amounts from numerous would-be copyright defendants. So far, this challenge has been answered by court orders that entail a high degree of judicial supervision.