Canadian Press is reporting this evening that the introduction of a copyright reform bill is imminent, with the article stating that "sources say the new legislation is ready, but Heritage Minister Bev Oda and [Industry Minister Maxime] Bernier are struggling on final wording that gives each the maximum political brownie points." The article, which features comments from myself, CRIA's Graham Henderson, and Howard Knopf, does a good job of highlighting at least two of the key issues – fair use and digital markets – that will be front and centre once the legislation is introduced.
As is the case in many other countries (Australia, UK, New Zealand), there is a growing awareness of the limits of fair dealing/fair use, particularly with respect to time/place/device shifting. Consumers rightly take for granted that they have the right to record a television show or a copy a CD for their iPod. Under current Canadian copyright law, such activities are at best in a legal grey zone. Unless the government addresses the fair use issue, expect Canadians (and the media) to be very vocal about the failure to address a fundamental issue in need of reform.
Another issue that will garner considerable attention is the question of digital markets. Graham Henderson hints at the issue in his comments, when he suggests that anti-circumvention legislation is needed to facilitate the development of new digital services, comparing the popularity of services in the U.S. with those in Canada. This argument represents a clever sleight of hand that confuses the facilitation of new services with the popularity and market acceptance of those services.
It starts with the notion that content owners will be reluctant to offer digital services without the combination of DRM and legal protection for DRM. Experience shows that simply is not the case – Canada has music and movie download services without additional legal protections.
Moreover, even if anti-circumvention legislation were needed to bring services to market (which they are not), the popularity of digital services in Canada is a consumer and market issue, not a legal concern. Indeed, there are a multitude of factors for why the Canadian services may not be faring as well as their U.S. counterparts. These include:
- the services arrived later in Canada due to licensing negotiations. The experience in virtually every market (including the U.S.) is that it takes time to gain market acceptance
- there are unsurprisingly fewer services (Canada being a much smaller market), leaving Canadians with less choice
- the most popular music service – iTunes – excludes a significant chunk of the Canadian market with its lack of French content
- Canadians may be more concerned with the effects of DRM, including interoperability restrictions, privacy consequences, etc. This points to the fact that policies that promote DRM may actually have negative marketplace effect with reduced consumer acceptance
- Canadians may recognize that they already pay millions every year for the private copying levy and thus feel comfortable with payment to artists via that alternative compensation system
- Canadians may generally be slower to embrace e-commerce, whether clothes, toys, jewelery, or music
- Canadians may have shifted their spending patterns away from music toward other entertainment options including video games, DVDs, etc.
Not only is there no evidence for equating consumer acceptance of digital services with anti-circumvention legislation, but policy makers should also reject CRIA's narrow characterization of digital services as solely or primarily those that use DRM (in fact, online music services are themselves shifting away from DRM). Beyond music and movies, there are an enormous number of new digital services that have nothing at all to do with DRM. Rather than seeking greater control, these services are far more reliant on a copyright law framework that facilitates access and use. They include online PVRs (which Telus is promoting), search services, ad-supported open business models, and the plethora of Web 2.0 services that depend upon openness and access. The digital marketplace is far larger than just DRM-backed online music services, which despite its growth is actually a shrinking part of the expanding digital landscape due to marketplace (not legal) considerations.
Ultimately, if government wants to address both the device shifting concern and the desire to facilitate digital markets, it could achieve both without any reference to anti-circumvention legislation. Fair use would do the trick.