Appeared in the Hill Times on May 5, 2008 as Getting Beyond Canada's Copyright Myths
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Last week, James Rajotte, the Chair of the Standing Committee on Industry, told a Public Policy Forum conference on intellectual property that Industry Minister Jim Prentice hopes to introduce the highly contentious copyright bill within the next few weeks.  The announcement, which comes just days after the United States raised copyright with Prime Minister Stephen Harper at the SPP meeting in New Orleans, suggests that the concerns of business, education, and consumers may be cast aside in order to pacify U.S. pressure on the file.

Indeed, the decision to press ahead with copyright in a manner that Liberal Industry critic Scott Brison recently labeled as "anything but transparent" is particularly troubling given concerns that the bill may be based on five myths that are frequently raised with respect to Canadian copyright.

1.    The Importance of Copyright.  In recent months, there have been increasing attempts to link copyright reform with the government’s broader innovation agenda.  While copyright and intellectual property policies are unquestionably important in this regard, an innovation strategy depends upon far more than just copyright reform.  A vibrant venture capital community, competitive tax structure, highly skilled workforce, and world-class communication infrastructure all play a critical role in investment decisions and the commercialization of new innovation.  In fact, the World Economic Forum recently pointed to excessive red tape in establishing a new business and the high costs of Internet and wireless access as the weakest part of Canada’s "network readiness."

2.    Consultation and Reform.  Given the slow pace of copyright reform, it is natural for some to mistakenly believe that Canada has widely consulted on reform with little to show for it.  In fact, the opposite is true.  The last national consultation on digital copyright reform took place in 2001, a time that pre-dates the introduction of the now-ubiquitous Apple iPod and the emergence of popular sites such as Facebook, MySpace, and Flickr. Although critics decry Canada's "outdated" copyright laws, the reality is that there has been a steady stream of reforms over the past two decades.  The Copyright Act faced major overhauls in the late 1980s and 1990s, with smaller amendments in 1992.  Moreover, Canada passed new copyright laws related to Internet retransmission in 2002 and anti-camcording legislation last year.

3.    Canada in the World.  A consistent theme in recent years has been the characterization of Canadian copyright law as "outdated, weak, or ineffective" in comparison to the rest of the world.  Much of this criticism comes from the U.S., which has consistently placed Canada on its Special 301 list of countries with intellectual property laws that merit "watching." Yet these inflammatory claims do not withstand even mild scrutiny.  The U.S. Special 301 list includes nearly 50 countries representing 4.4 billion people (about 70 percent of the planet) and 13 of the top 20 countries worldwide as measured by GDP.  Viewed in that light, Canada is in good company.

Moreover, the World Economic Forum ranked Canada's intellectual property protection fourth in G8, ahead of both the U.S. and Japan.  That ranking may reflect the fact that there are many areas where Canadian law is actually far stronger than the U.S., including our more limited fair dealing provision, the existence of crown copyright, the significantly higher copyright fees for broadcasters and educators, as well as Canada's the heavy reliance on copyright collectives.

4.    Copyright in the World.  Among the most troubling claims associated with copyright are the assertions that Canada must follow the U.S. model in order to comply with the World Intellectual Property Organization's Internet treaties.  Nothing could be further from the truth.  In recent months, New Zealand passed copyright legislation that includes far more flexibility that the U.S. model, while Israel – well known for an innovative technology sector – rejected the need for WIPO reforms altogether.  Canada has the ability to craft a "made in Canada" solution that meets our needs but rejects reforms that have had negative effects on research, security, and consumer rights in other countries.

5.    Copyright Consensus.  Advocates of immediate reform argue that copyright is too contentious to achieve a broad consensus and that leadership is therefore needed to push ahead with legislation despite the opposition.   However, a closer look at the publicly held positions of many key stakeholders reveals that there is an emerging copyright consensus in Canada.  Artists groups (Canadian Music Creators Coalition, Appropriation Art), business groups (Balanced Copyright Business Coalition), education groups (Canadian Association of University Teachers, Canadian Federation of Students), and consumer groups have largely coalesced around principles that include a rejection of the U.S. Digital Millennium Copyright Act, preservation of user rights, greater flexibility within fair dealing, and the targeting of clear cases of commercial counterfeiting.  Such an approach benefits creators, users, and the business community and therefore holds the promise of a consensus-based roadmap for reform.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.  A version of this column was presented at the Public Policy Forum's conference on intellectual property.