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: Michael Geist

61 Reforms to C-61, Day 14: Music Shifting Provision Says Contract Trumps Copyright

By Michael Geist

Today's C-61 reform is particularly timely given yesterday's decision by Industry Minister Jim Prentice to demand that Bell and Telus account for their plans to charge for the receipt of text messages, a decision that Prentice described as "poorly thought-out."  In the case of text message charges, the companies will presumably argue that their consumer contracts give them the right to alter charges and that this change is consistent with those rights.  Prentice may rightly note the inequity of locking in a consumer for three years, yet reserving the right to fundamentally alter the costs borne by the consumer midway through the agreement.  In other words, the contract may say one thing, but consumer rights and fairness dictate something else.

While that may be Prentice's perspective on consumer telecom contracts, he adopts a much different approach in Bill C-61. 

One of the most important - albeit overlooked - elements of the bill is its explicit preference for contract over copyright.  In particular, the music shifting provision provides that "if the individual has downloaded the sound recording from the Internet and is bound by a contract that governs the extent to which the individual may reproduce the sound recording, the contract prevails over subsection (1) [the shifting provision] to the extent of any inconsistency between them."  Many will instinctively agree with this approach - parties are free to contract and no one is forcing anyone to buy anything.  However, this approach ensures that basic consumer rights (user rights in the Supreme Court of Canada's parlance) can be overriden by contract.  In other words, the contract prevails even where consumer rights dictate something else.

Note that other countries have dealt with the same issue and sided with the need to protect the copyright balance.  For example, the Portuguese Copyright Act declares null and void any contractual provision eliminating or impeding the normal exercise of "free uses."  This issue has also arisen in other European countries including Ireland and Belgium as well as in the European Union's Computer Programs Directive and the Database Directive, which guarantee lawful users certain end user freedoms that cannot be overriden by contract.  By conclusively siding with contract over copyright law, Bill C-61 potentially tramples on provincial rights (contract is a provincial matter) and opens the door to the elimination of user rights in copyright through contract.  To borrow Prentice's own words, this provision is poorly thought-out.

Full post as published by Michael Geist on July 09, 2008 (boomark / email).