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: Michael Geist

61 Reforms to C-61, Day 57: Statutory Damages Reform - Uncertainty

By Michael Geist

Reforms to the statutory damages provisions formed a big part of the government's communication strategy for Bill C-61.  Although scooped by the National Post, Industry Minister Jim Prentice emphasized the introduction of amendments to the statutory damages provisions that purportedly create limits for damages that arise from "private purposes" infringement.  The provision has proven unpopular for both sides of the copyright debate with rights holders concerned that it will not create a disincentive to infringing activities, while user groups fear that it won't apply to liability for everyday activities. The provision states:

If a copyright owner has made an election under subsection (1), a defendant who is an individual is liable for statutory damages of $500 in respect of all the defendant’s infringements that were done for the defendant’s
private purposes and that are involved in the proceedings.

Moreover, a follow-up provision states:

If a copyright owner has made an election under subsection (1) in respect of a defendant referred to in subsection (1.1), no other copyright owner may elect statutory damages in respect of that defendant for the defendant’s infringements that were done for the defendant’s private purposes before the institution of the proceedings in which the election was made.

Tomorrow I will discuss why these provisions are not good enough.  For now, it is worth noting how much uncertainty they generate.  What is the meaning of "private purpose" (it surprisingly is not defined in the bill)?   Does the bill really mean that the first copyright owner to sue has the shot at $500, while all other copyright owners are blocked from filing suit?  Alternatively, do "all the defendant's infringements" refer only to the infringements for a particular work (ie. there are frequently multiple copyright holders for a single song) and file sharers can be still be sued for each individual download?  The uncertainty associated with the statutory damages reforms leave the sense of a hastily included provision at Prentice's request.  All sides in the copyright debate require greater clarification to judge the changes.

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