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

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.