What do the Copyright Act amendments mean for entertainment law?

David Zitzerman

With the new Copyright Act about to be proclaimed, Lexpert spoke with a leading entertainment lawyer – Goodmans’ David Zitzerman – about what this means for his clients and for lawyers in his area of practice. Given that his clients deal with copyright issues every day, entertainment law is probably the area that will most be affected by the changes to the Act (although it will no doubt have huge effects for IP and communications lawyers as well).

For his clients, Zitzerman says there are four big areas of interest or concern:

  1. Remedies for infringement: “There is now a real roadmap for going after piracy,” Zitzerman says. “There is a whole range of new remedies that are available now and I think that our clients are going to be very interested in potentially engaging in litigation as one aspect of their strategy to control piracy.” For example, the new legislation allows copyright owners to sue those who provide a service primarily for the purposes of enabling acts of copyright infringement, like illegal peer-to-peer file sharing sites, it prohibits the circumvention of technological protection measures like “digital locks” and prohibits the removal of rights management information like digital watermarks that allow copyright owners to police their works.
  2. User rights: The new act provides a number of exceptions for copyright infringement. “There is some nervousness to see how that is going to work out among our clientele. And they want to make sure it won’t be abused.”
  3. The expansion of fair dealing:  Zitzerman says this is a mixed bag for his clients. He says exceptions that allow for parody and satire are universally welcomed by almost all his clients but the education exception is a “huge hornets nest.” The Act doesn’t clarify what the education exception means, although the government did indicate in committees that it meant structured education, like college, university and public school. But, this is not stated in the law, so as Zitzerman points out “it is left to the courts to interpret. Is your Yoga instructor an educator? Is your nutritionist an educator?”
  4. The notice and notice regime: under this regime, those who claim copyright infringement have to have a court determine whether questionable material should be taken down. In other countries, such as the US and France, internet service providers can, without having to go to court, cut off access or remove material when notice is given that the material is infringing copyright. Zitzerman says his clients wonder whether the notice and notice regime will be sufficient or too onerous to deal with copyright violations.

There are many more detailed provisions in the act (see Goodmans’ update here), but what does this mean for the actual practice of entertainment law and other areas affected by copyright reform? “For lawyers, it is going to be good,” says Zitzerman, who has already had clients calling asking for more information on the new law. He says there is the transition work, which will involve briefing clients on the new law, but then there will no doubt be a fair amount of litigation to both enforce and clarify the law:

People exercising the new rights that they have under the legislation or people seeking clarification of things like the education exception where there is a concern that it is not clear whether something is or isn’t infringing.

On enforcement, lawyers will be giving advice on how to tailor anti-piracy to the new legislation. “All of the really rogue pirate sites, this is not a good week for them.”

It won’t be just going after piracy sites though – as Zitzerman points out, “our clients routinely sue each other for copyright infringement. Now we have to see how fair dealing is going to affect some of that.” For example, big studios regularly sue each other for stealing ideas.

Looking forward, the Copyright Act is now written in a way that takes into account the fact that technology will continue to change – e.g. it uses terminology like “systems” and “methods” and “technologies” instead of listing a particular technology like downloading or recording in every example – but it remains to be seen whether this general language will be able to address how technology evolves.

Finally, the Act how has a sunset provision where the government is required to review the legislation every five years, but Zitzerman is doubtful this will prevent future political logjams like the ones that caused such a long delay for these amendments to pass. “The only obligation is an obligation to review. If they review and they don’t do anything, that completely complies with the rule. There is no requirement to amend, there is only a requirement to review.”

In other words, it will likely take another majority government to see another change of this magnitude to copyright again. But Zitzerman isn’t one to complain now, given how long he and his clients have been waiting for these changes:

It is exciting to finally have an amended act.

4 comments on “What do the Copyright Act amendments mean for entertainment law?

  1. Copyrightuk (@Copyright_uk)
    October 3, 2012 at 8:26 am #

    Great post !!Thanx for posting the useful information. .

  2. txwikinger
    July 5, 2012 at 11:02 pm #

    Reblogged this on txwikinger's blog.

  3. txwikinger
    July 5, 2012 at 11:00 pm #

    Reblogged this on txwikinger's blog.

Trackbacks/Pingbacks

  1. Copyright reforms come into force | Lexpert Magazine - Blog - November 16, 2012

    […] spoke with Goodmans’ David Zitzerman in the summer about the implications of the reforms, and did a cover feature on entertainment law in our April 2012 issue (one of the practice areas […]

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