I will have news on a new copyright consultation website that I'm launching shortly, but I wanted to post my short response to the just-launched copyright consultation. The consultation asks five broad questions, each of which could lead to lengthy answers that mine the depths of Canadian copyright law. I plan to post longer responses to the consultation that expands on the issues raised by the government over the course of the next eight weeks, but as Canadians think about their response (and submission takes nothing more than email) I think a short answer that is accessible now is crucial.
My short answer would begin by noting that the five questions can really be grouped into three key issues:
- Why does copyright matter to you?
- How can the government ensure that copyright reforms remain relevant in the long term?
- What specific reforms should the government prioritize (having regard for creativity, innovation, competition, and the digital economy)?
Why does copyright matter?
The consultation’s first question is also the most personal since the answer will be different for almost everyone.
For me, copyright matters because I am a professor and my students need access to copyrighted materials and the freedom to use those materials. It matters because I am a researcher who needs assurance that as materials are archived they will not be locked down under digital rights management. It matters because I am deeply concerned about privacy and fear that DRM could be harmful to my personal privacy. It matters because I have created videos and need flexibility in the law to allow for remix and transformed works and do not want my content taken down from the Internet based on unproven claims. It matters because I am a writer and I need certainty of access to speak freely. It matters because I am a consumer of digital entertainment and I want the law to reasonably reflect the right to view the content on the device of my choice. It matters because I am a parent whose children have only known life with the Internet and I want to ensure that they experience all the digital world has to offer. It matters because I live in a city with a strong connection to the digital economy and we need forward-looking laws to allow the next generation of companies to thrive. It matters because I am a proud Canadian who wants laws based not on external political pressure, but rather on the best interest of millions of Canadians.
How to remain relevant?
Developing copyright law principles that remain relevant years from now is unquestionably a difficult challenge. With references to VHS tapes and the decision to block network-based PVR services, Bill C-61 was outdated the moment it was introduced. In order to introduce legislation that will stand the test of time, the government needs a principle-based, forward-looking approach. I would argue that there are three essential ingredients:
- Heed the words of the Supreme Court of Canada. In 2002, the Court argued that over-protecting works is just as problematic as under-protecting them (the specific quote: “The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.”). The court’s emphasis on balance and the dangers of excessive control should stand as a starting principle for reform.
- Technological neutrality. Bill C-61 made the mistake of weighing in on specific technologies. It banned the distribution of some (circumvention devices), blocked the use of others (network based PVRs), and provided specific support for some others (digital rights management). It should not be the role of government to pick specific technologies or business models. Instead, a technologically-neutral approach is essential.
- Flexibility. Flexibility should be the key watchword for policy makers in at least two respects. First, a forward-looking approach requires nimble laws that can adapt, particularly in the current environment. Building greater flexibility into the law – primarily through fair dealing – would give the law a fighting chance in adapting to new business models and new forms of creativity. Second, flexibility is important when thinking about international copyright law. There will be great pressure to conform to international treaties yet those treaties offer considerable flexibility in implementation. Canada should take full advantage of that flexibility by drawing on the best examples from around the world.
What to do? What not to do?
The final three consultation questions really ask the same thing with slightly altered perspectives – what should we do to foster innovation and creativity, competition and investment, and to position the country as a leader in the digital world. At its heart, each of these questions is asking for comments on proposed reforms that are forward-looking and ensure that the goals of innovation, creativity, and marketplace success are met. While it is possible to answer each individually, there is considerable overlap. For example, a more flexible fair dealing provision has benefits for innovation, for creativity, for competition, and for the digital economy. The same is true for anti-circumvention provisions that retain the copyright balance.
In an ideal world, we might start from scratch to create a law truly makes sense in the current environment. We are not starting from scratch, however. The reality is that there is an international context with treaties we have ratified (Berne Convention) and treaties we have signed but not yet implemented ((WIPO Internet treaties). Moreover, there is a domestic context, with Bill C-61 surely used as reference point.
The international and domestic context requires Canadians to speak out both on what to do and what not to do. I offer five points on each.
What to do?
1. Flexible fair dealing. A more flexible fair dealing provision would address many of the current concerns associated with Canadian copyright law. By opening up fair dealing, Canadian law could ensure that user rights extend to parody and satire as well as to format shifting, time shifting (recording television shows), and device shifting. It could cover transformative works to ensure that remix creativity is adequately protected and it could ensure that the law is technologically-neutral.
2. Digital reforms. There are three key reforms here. First, anti-circumvention legislation (rules against picking digital locks) is a certainty given the pressure to implement WIPO. If we move in this direction, anti-circumvention rules should be specifically linked to circumventions for the purpose of copyright infringement. Non-infringing circumventions should remain legal. Second, we should create a safe harbour from liability for Internet intermediaries by adopting the notice-and-notice approach used in both C-60 and C-61. Third, we should introduce rights management information protection as requested by many creator groups.
3. Modernize. There are areas where Canadian law is out-of-date and needs to be modernized. The backup copy provision, which currently only covers computer programs, should be extended to all digital data. Crown copyright, which dates back centuries, should be abolished. Education and library provisions should be updated, not with a new Internet exception, but rather with rules that facilitate digital library loans, digitization, and distance learning.
4. Public Domain. The current term of copyright stands at life of the author plus 50 years. The government should make a clear commitment not to extend any further. Moreover, it should identify a presumed public domain date (based on birth date and reasonable life expectancy) to facilitate digitization of Canadian heritage.
5. Enforcement. The statutory damages provision should be amended so that the prospect of millions in liability for cases of non-commercial infringement is eliminated. Moreover, the provision should not apply where the infringer had a good faith belief that the alleged infringement was covered by fair dealing.
What not do?
1. Do not allow anti-circumvention legislation to override the copyright balance. The U.S. Digital Millennium Copyright Act is not the only way to implement the WIPO Internet treaties. We can follow our own Bill C-60 by limiting anti-circumvention rules to circumvention for the purposes of infringement.
2. Do not ban technologies that can be used to circumvent. Assuming it is recognized that there are many legitimate reasons to circumvent a digital lock, then the distribution of the tools (ie. software) used to circumvent is also legitimate. There is no international legal requirement to ban their distribution.
3. Do not harm the public domain with copyright term extension. While some countries have extended the term of copyright beyond the Berne Convention requirement of life of the author plus 50 years, there is no compelling reason – either from an economic, creativity, or innovation perspective – to extend the term. Indeed, there are strong arguments that harming the public domain would have the opposite effect.
4. Do not establish a three-strikes and you’re out system that removes Internet access based on unproven allegations of infringement. Attempts at three-strikes systems have struck out in virtually every country where they have been raised. Internet access is far too important to establish a system that would cut off access based on unproven allegations of infringement.
5. Do not permit international treaty negotiations to pre-determine domestic reforms. Canada is an active participant in the Anti-Counterfeiting Trade Agreement negotiations, which will shortly address Internet-related issues. Those provisions could have a significant impact on the domestic reform process. Canada should not let ACTA dictate the future of Canadian copyright law.
There is much more to say about each of these issues as well as many that do not fit nicely into this framework. I plan on writing about all of this during the consultation and encourage as many Canadians as possible to get educated and to Speak Out on Copyright.