Bill C-11 amends the Copyright Act in several different ways. One of the states purposes of those amendments is to “make the enabling of online copyright infringement itself an infringement of copyright”. While I can understand that this adds significant new protections to copyrighted materials, I think this may quickly become either unenforceable, or introduce serious new restrictions on how communications over the Internet can legally take place. It all hinges on the definition of “enabling”, however. Enabling copyright infringement under bill C-11 is enabling an infringement of the right as defined in subsection 3(1), as amended.

Subsection 3(1), as amended, reads:

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work,
(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,
(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,
(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,
(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,
(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,
(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,
(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and
(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

and to authorize any such acts

Copyright in performer’s performances, sound recordings and communication signals is defined in section 15 of the act (as amended).

[aside status=”closed” type=”Subsection 15(1) as amended” hide=”To hide %s, click here” show=”To show %s, click here”]

15. (1) Subject to subsection (2), a performer has a copyright in the performer’s performance, consisting of the sole right to do the following in relation to the performer’s performance or any substantial part thereof:
(a) if it is not fixed,
(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form,
(b) if it is fixed,
(i) to reproduce any fixation that was made without the performer’s authorization,
(ii) where the performer authorized a fixation, to reproduce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than that for which the performer’s authorization was given, and
(iii) where a fixation was permitted under Part III or VIII, to reproduce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than one permitted under Part III or VIII, and
(c) to rent out a sound recording of it,
and to authorize any such acts.

(1.1) Subject to subsections (2.1) and (2.2), a performer’s copyright in the performer’s performance consists of the sole right to do the following acts in relation to the performer’s performance or any substantial part of it and to authorize any of those acts:
(a) if it is not fixed,
(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, if it is communicated to the public by telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form;
(b) if it is fixed in a sound recording, to reproduce that fixation;
(c) to rent out a sound recording of it;
(d) to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that member of the public and to communicate the sound recording to the public by telecommunication in that way; and
(e) if it is fixed in a sound recording that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the performer’s performance.

Therefore, to infringe or to enable infringement of copyright, one has to infringe or perform or enable some-one to perform any of the acts that only the copyright holder may do or authorize, without the copyright holder’s persmission.

Enabling infringement is new to the copyright act and is defined in section 27, subsections 2.3 and 2.4, as amended [aside status=”closed” type=”Section 27, subsections 2.3 and 2.4, as amended” hide=”To hide %s, click here” show=”To show %s, click here”]

(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.
(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider
(a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;
(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;
(c) whether the service has significant uses other than to enable acts of copyright infringement;
(d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;
(e) any benefits the person received as a result of enabling the acts of copyright infringement; and
(f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.

So the service provided has to be designed with copyright infringement as its primary purpose, and the test for whether that is the primary purpose of the service in question includes the way the service is marketed, the significant uses of the service and the economic viability of the service if it is not used for copyright infringement.

Let’s take a look at an example: BitTorrent. The primary use of BitTorrent is to share files – regardless of the type of files. While it is not expressly marketed as a service for copyright infringement, it is implicitly marketed as such, as most torrent sites provide access to copyrighted materials for their illegal distribution. Anyone who has any knowledge whatsoever of BitTorrent knows it is used for the purpose of copyright infringement. Websites such as the Pirate Bay, TorLock and others that provide access to torrent files that are used for the purposes of illegal distribution of copyrighted material can therefore be construed as enabling copyright infringement – and would likely not be economically viable if they didn’t do so.

Under Bill C-11. these sites would therefore be construed as infringing copyright.

That does not mean that anything that has anything to do with BitTorrent inherently infringes copyright: if you are a copyright holder and choose to do so, you can license your works such that their distribution using BitTorrent is authorized and you can therefore use BitTorrent (or any other peer-to-peer network) for the (legal) distribution of your work. Services that provide access to works that are licensed to allow such distribution, and/or to works that are in the public domain, would not infringe on any copyright.

I myself use BitTorrent to download (and redistribute) the Eclipse SDK and other Free/Libre Open Source Software. As such, I provide a service (because my BitTorrent client, like most other clients, allows downloading such copyrighted materials from my computer) that does not infringe on copyright nor enable copyright infringement (because the copyrighted materials I provide access to are licensed to allow redistribution).

But how is a middle-man – someone who provides a service to the infringing service provider and thus enabling the infringement – to know whether he’s enabling infringement and thus infringing?

I.e., a high-speed Internet access provider could very well be enabling infringement according to the same standards: high-speed Internet access for non-commercial use is often used for downloading movies and thus, infringing copyright. This is a well-known use for high-speed Internet access and arguably makes relatively-low-cost high-speed Internet access economically viable. If all the users that use their high-speed Internet connection for infringing copyright stopped infringing copyright, would they still need their high-speed connections? If not, wouldn’t they drop their high-speed subscriptions for lower-speed ones, thus making high-speed connections economically not viable?