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LEGAL REPOR T: INTELLECTUAL PROPERTY LLP, agrees with those assessments but says whether parody will pass the legal test depends on several factors identified by the court. "It's hard to use parody unless peo- ple see it being very original," he says. Issues to consider, he notes, include whether, as a critical work, the parody identifies the source, how much of the original content it took, the extent to which it competes with the copy- righted material, and what its purpose is. In cases involving research, he points out, someone arguing the fair-dealing defence where the copyright infringe- ment was for a commercial use would have a harder time getting past a judge than someone who did so for non- profit reasons. But Dimock isn't convinced that par- ody is a major concern the government should be looking at as it mulls over a new law. "I don't think that parody is a burning issue," he says. "What bothers people these days is the issue of down- loading off the Internet." Still, noting that countries such as the United States make relatively gener- ous allowances for parody under their copyright laws, Howard Knopf says it's time for Canada to get on board. "We don't seem to have a sense of humour. It's certainly getting in the way of a lot of creative work," says Knopf, a lawyer with Macera & Jarzyna LLP in Ottawa, of current laws. His preference would be for a blanket exception for parody under fair-dealing provisions. But like Dimock, he feels the government also needs to address more pressing issues as it considers changes to the Copyright Act, a law that has come under some criticism internationally for Canada's allegedly liberal approach to the issue of downloading works online. He's adamant the government avoid repeat- ing controversial elements in its last attempt at reform, bill C-61. That pro- posed law, which died in Parliament due to last year's election call, came under heavy criticism for its language on anti- circumvention measures. They involve so-called technical protection measures (TPMs) and digital rights management (DRM) provisions that companies place on products to prevent consumers from copying works. Bill C-61 would have made it illegal for people to break those digital locks, but as Knopf points out, sometimes consumers have a legitimate reason for doing so. People in Canada who receive a DVD from relatives in India, for exam- ple, might want to get around the region code that prevents them from watching it here. That's not illegal copying, so Knopf argues that bolstering restrictions on doing so in law is unfair. "What most balanced people want is they see very little need for protection for DRM," he says. "What we need really is protection from it." Peter Wells, an IP lawyer at Lang Michener LLP in Toronto, takes a simi- lar approach. Noting Apple Inc. has loosened digital locks that stopped peo- ple from transferring iTunes songs onto devices other than its own products, 38 OC T O BER 2009 www. C ANADIAN Law ye rmag.com Untitled-2 1 2/11/09 12:24:44 PM