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Intellectual property lawyers on both sides of the border are waiting to see whether Canada will reform its copyright laws by bringing changes many say are similar to existing U.S. laws. Geoff Gerber in the St. Louis office of Husch Blackwell Sanders, whose practice includes intellectual property issues, said he will continue to monitor the bill because he has U.S. clients with businesses in Canada, as well as Canadian clients. If the proposed changes are implemented, it may be easier to enforce copyright holders’ rights in Canada, he said. “Our [U.S.] clients already have digital protections in place and the current reforms will simply give and provide new and different ways to enforce intellectual property rights in Canada,” he said. The Canadian government introduced proposed changes to the Copyright Act in June and said they are necessary in order to bring the country’s copyright laws into the digital age and up to international standards. The Canadian Parliament is expected to vote on the bill in the fall. The bill includes a number of proposals, including the following: • Allow consumers to legally record content for later use, such as taping a TV show for later viewing, or downloading music to an iPod. • Require Internet service providers to forward notices to subscribers believed to be posting infringing material. • Make it illegal to circumvent technologies and digital locks intended to control access to protected material. Michael Albert, who chairs the litigation group in Boston’s Wolf, Greenfield & Sacks, an intellectual property firm, said if the bill passes, there could be more lawsuits going after copyright infringers. “There could a period of increased copyright litigation in Canada as people start to enforce these laws as owners of intellectual property,” he said. Many lawyers said the proposed bill is similar to the U.S. Digital Millennium Copyright Act, or DMCA, which passed in 1998. In addition, many in the legal world said U.S. pressure played a large role in pushing Canada to introduce the changes. “It reflects both that the current Canadian government has made its relationship with the U.S. a priority and the heightened pressure that’s come from the U.S. in recent months,” said Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa Faculty of Law. Geist said some have dubbed the bill the “Canadian Digital Millennium Copyright Act.” He gave several examples of U.S. pressure, such as the Office of the United States Trade Representative putting Canada on its watch list of countries with substandard intellectual property laws. The bill has created fierce debate in Canada. Geist’s Facebook group, Fair Copyright for Canada, has more than 83,000 members. More than 40,000 members have joined since the bill was introduced on June 12, Geist said, with many saying they are taking action to try to prevent the bill from becoming law. The group’s opposition has been credited with getting the government to postpone introducing the bill last December, as originally intended. It has also led many local chapters to form around the issue, some of which are organizing protests and letter-writing campaigns. Undermining the law? Geist said the law creates a blanket prohibition on bypassing digital technologies that protect some materials with very limited exceptions. Under the current bill, he said Canadians could become infringers for a number of everyday activities, such as transferring the contents of a DVD to an iPod, making it too broad. “It has the effect of undermining the basic copyright balance,” he said. Meanwhile, a number of creative agency organizations have voiced support for the bill, including the Alliance of Canadian Cinema, Television and Radio Artists, the Canadian Music Publishers Association and the Canadian Recording Industry Association. Colleen Spring Zimmerman, manager of the intellectual property group in the Toronto office of Borden Ladner Gervais, said the bill would be a positive change for many of her clients, such as entertainment companies and television stations. “We’ve been a little behind in dealing with certain technology issues that come with respect to intellectual property and many of these amendments are intended to deal with that,” she said. For example, Spring Zimmerman said it is often difficult to track down those putting infringing material online, as users can hide behind false domain names. If the proposed bill passes, it will be easier to go after such cases, she said. The bill, C-61, would require Internet service providers to pass notices of copyright infringement to users in what has been called the “notice and notice” approach, compared to the U.S. “notice and takedown” approach, where the infringing information is removed once notice is served. Like the DMCA, the bill would make it illegal to circumvent technologies and digital locks to access protected materials, but several lawyers said it’s tough to say how this would be enforced in all circumstances. “It will be some time before the courts can fully integrate the provisions and how they apply to real-case scenarios and how the proposed amendments would interact with existing procedures,” said Stéphane Caron, a partner in the Ottawa office of the Canadian firm Gowling Lafleur Henderson. “That will certainly be a source of work as clients attempt to get a better sense of what are the new boundaries under the amended act.” Daniel Glazer, a counsel to the intellectual property practice at New York’s Shearman & Sterling, said U.S. lawyers in the field will likely monitor the bill closely because many have global practices with global clients. “It’s just part of a U.S. IP lawyer’s everyday business now to really stay abreast of what major changes are out there, primarily in the U.S., but also in major countries in which our clients are doing business,” he said, “because this is an area of law that’s evolving and changing at a breathtaking pace.”

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