As the media coverage of the Conference Board's Digital Economy report continues (CBC, Mediacaster), a new revelation has emerged. The Conference Board of Canada's defence included the following statement:
In the course of the research, the authors reviewed the full spectrum of arguments surrounding the issue of intellectual property rights in Canada. The final report includes those arguments considered most relevant to the policy under review.
A review of the report finds that the only arguments that the Conference Board seems to have adopted come directly from the International Intellectual Property Alliance, since it is their work (and words) that are recycled repeatedly in the report. What the Conference Board does not mention in its defence (nor in the report) is that it actually commissioned a study on the copyright issues from an independent Canadian legal expert. That report was completed by Professor Jeremy deBeer, a colleague at the University of Ottawa and frequent contributor to the Globe and Mail on copyright matters.
Professor deBeer has just revealed his involvement and posted a working paper based on his report submitted to the Conference Board of Canada. It turns out the deBeer was precluded from using the work for 12 months, a period that concluded today. It is immediately apparent that the deBeer paper arrived at very different conclusions from the IIPA and the Conference Board. In particular, it recommends:
IPRs can facilitate innovation if an appropriate balance is struck between sufficient protection and free competition. Canada's laws governing IPRs are recognized to be very good, but could be improved. With respect to copyright in the digital environment, three priority issues to deal with are implementing treaty provisions regarding TPMs, clarifying intermediaries' liabilities and obligations and enabling greater use of flexibilities and limitations.
Canada should follow the example set by Israel and adopt a 'wait-and-see' approach toward TPMs, in order to avoid entrenching a potentially inappropriate regulatory regime for technologies with an uncertain economic and cultural future, or a middle-ground model with circumvention prohibitions tied to infringement should be adopted. Intermediaries should be required to assist in online copyright enforcement under a 'notice-and-notice' system that requires them to inform customers of alleged infringements, and policy-makers shoudl closely follow and participate in discussions about self-regulation. Canada's statutory system for fair dealing should be amended to take account of technological, cultural and commercial realities and to create new opportunities for economic growth and innovation, while stakeholders simultaneously work together to design best practices online.
The entire deBeer paper is worth reading, but these conclusions are particularly noteworthy given that the Conference Board ignored them and instead adopted the conflicting recommendations supported by IIPA and the copyright lobby groups that funded their study. Indeed, they made no reference to the deBeer study in their report, a curious decision given that the Conference Board claims to be "independent, objective, and non-partisan."