Liberal Industry critic Marc Garneau and Heritage critic Pablo Rodriguez yesterday hosted a roundtable on the digital economy on Parliament Hill. The roundtable featured two panels: one on a digital strategy (including representatives from Telus, MTS Allstream, ITAC, Google, and CAIP) and a second on copyright and broadcasting (I participated in this panel along with Barry Sookman and representatives from ACTRA, Rogers, and the Entertainment Software Association of Canada). Kady O’Malley live blogged the entire event and the Wire Report also provided coverage. My prepared opening remarks are posted below:
February 11, 2010
Let me start by thanking Marc Garneau and Pablo Rodriguez both for the invitation and for conducting this session. I think we all recognize that copyright and the digital agenda is an absolutely critical issue that resonates as a significant priority for millions of Canadians.
Indeed, I want to begin by calling attention to the “mainstreaming” of copyright reform as political and policy issue. Despite what you sometimes hear, Canadian copyright law is not out of the stone age – there were major reforms in the late 1980s and again in the late 1990s – but it is fair to say that both of those reform efforts occurred below the radar screen for many Canadians.
No longer. Anyone under the age of 30 in Canada can by now scarcely remember a world without the Internet and anyone under 40 can scarcely remember one without a computer. For those people – increasingly the majority of the electorate – access to information, online expression, social media participation are a core part of who they are. Copyright has a direct impact on their daily lives and so it is unsurprising that they would pay attention.
Compare the two copyright consultations over the past nine years. The 2001 consultation generated 700 responses, viewed by government departments as a very significant number. By contrast, last summer’s consultation led to more than 8,000 responses, thousands of postings, and packed roundtables and townhalls across the country. It is hard to identify any other government consultation that has attracted a similar response.
When discussing copyright reform there is so much to say – preserving the public domain, making government information more available and transparent by removing crown copyright, modernizing the backup copy provision, reforming the statutory damages provision by distinguishing between commercial and non-commercial infringement, to name just a few.
I’m happy to return to all of these issues but I want to focus on the three that are likely to serve as the foundation for any copyright bill: the implementation of the WIPO Internet treaties, Intermediary liability, and expanding fair dealing.
As you know, the first digital copyright bill was Bill C-60, introduced by a Liberal government in 2005. That bill did not address fair dealing, but it did contain the provisions needed to deal with WIPO and intermediaries. In fact, there are many who would say with hindsight you got it right.
The Conservative Ministers Clement and Moore have both reflected on how much has changed since the introduction of Bill C-61 and there is a possibility that a new bill may change, perhaps shifting toward something that looks more like the Liberal C-60. It would be ironic if at the same time the Conservatives shift toward a Liberal policy, that the Liberals might entertain the notion of shifting toward their much-criticized approach. Now that is effectively what some on this panel may urge you to do, but I believe it is bad policy.
So what was the Liberal policy on these issues as found in C-60 and what should the policy look like today?
The WIPO Internet Treaties. As you know, these treaties were concluded in the mid-1990s, and for the past number of years Canada has faced great pressure to implement them. I think we could have a good debate on whether the treaties have accomplished what their backers hoped – I would argue that they clearly have not – but that train has left the station. At this stage, WIPO implementation seems inevitable.
The debate today is not whether, but how. And the core concern involves anti-circumvention legislation, the legal protection for digital locks on items such as DVDs, CDs, and even cellphones. The WIPO treaties offer considerable flexibility in how to implement anti-circumvention rules, a fact confirmed just yesterday in the Conference Board of Canada’s report on intellectual property. The Conservatives’ C-61 approach mirrored the one found in the US – it was technologically specific (banning distribution of devices), very complex (long, ineffective exceptions), and lacking in flexibility (beyond WIPO requirements to cover all circumventions – even for fair dealing, to protect privacy, research, etc were prohibited).
By contrast, the Liberals’ C-60 offered a cleaner, simpler, more balanced approach that linked circumvention to copyright infringement. With that approach, we would comply with WIPO (the Liberal bill passed muster with the Department of Justice), no need for specific references to technology, no long list of exceptions, and we would still target clear cases of infringement.
The difference between the Conservative C-61 and the Liberal C-60 is not a matter of legal fine tuning. It reflects core differences that will ultimately impact millions of Canadians as was recognized by MP Marlene Jennings in her response to constituents on C-61. Recent experience – whether the Amazon deletion of books from the Kindle, Bell closing its online video store and locking out purchasers of videos, Sony and its rootkit case, all show the problems with digital locks and the need to guard against their misuse. The solution lies in maintaining the balance in the online world that exists offline. That approach is a clear link between circumvention and copyright infringement.
Intermediary Liability, primarily thought as the role of ISPs in dealing with copyright issues. This should be an easy one. Both C-60 and C-61 adopted the same approach – notice and notice. This involves a copyright holder sending a notification to an ISP who is then obligated to send the notification on to the subscriber. These notifications work – the Business Software Alliance has noted their effectiveness as many users receive the notification and alter their conduct accordingly. Moreover, it avoids the notice and takedown approach in the U.S., which is a shoot first, aim later approach that has resulted in many cases of wrongful takedowns.
It is important to note that there are significant costs associated with notice-and-notice. A 2006 Industry Canada commissioned study pegged the cost of a single notice at $11.73 for large providers and $32.73 for small ones. Considering Bell alone receives 15,000 notices per month, we are talking about millions of dollars to address the issue.
In recent months, there have been some calls for a notice-and-termination policy – also known as graduated response or three strikes – that could result in Internet users losing access based on allegations of infringement. Many countries have rejected the approach as both unworkable and disproportionate. In fact, even the United States stated yesterday that it is not seeking mandatory three strikes in an international copyright agreement called ACTA. Those that have moved forward – the UK for example – have costed such plans at hundreds of millions of dollars with uncertain returns and the likely disconnection of thousands of users due not to copyright infringement, but rather to increased access costs for Internet services. Last week, an Australian judge noted the complexities and problems associated with such policies. Given the evidence and experience to date, there is simply no sound reason for Canada to entertain such policies at this time.
Fair dealing. Fair dealing is the one issue that was not on the agenda in Bill C-60. That is understandable given that it was previously very restrictive. In recent years, the Supreme Court of Canada has ruled that it should interpreted in a broad and liberal manner and opened the door to greater flexibility and the potential for innovation.
Today, we all recognize there is a problem with fair dealing – everyday activities like recording television shows or format shifting are not covered, artistic endeavours like parody are not covered, teaching activities not covered, and innovative businesses often can’t rely on the provision.
C-61 recognized this too with some attempts to add new categories to the list. Unfortunately, their approach was technologically specific (VHS tapes, network PVRs), very complex (12 steps to record a television show, Internet exception for education) and very specific and lacking in flexibility. The solution – a much cleaner, simpler approach would be to add two words – “such as”- so that the current list of fair dealing would become illustrative rather than exhaustive and we would build in flexibility but not lose fairness. It is fair dealing, not free dealing.
ACTA and CETA. While those are the three core issues, I cannot help but reference two trade negotiations that may have a dramatic impact on Canadian choices with respect to intellectual property – the Anti-Counterfeiting Trade Agreement and the Canada – EU Comprehensive Trade Agreement.
Both of these agreements have begun to attract mounting attention and criticism for their lack of transparency and the prospect that a made in Canada approach to copyright would be trumped by agreements hatched in Washington or Brussels. To that end, it was heartening to hear Michael Ignatieff reject a Washington-dictated Canadian copyright law during his campus tour.
Yet that is precisely what ACTA promises. Indeed, a representative from the Entertainment Software Alliance told a Washington meeting last year that ACTA was one way to push forward copyright reform in Canada. Many of the provisions in ACTA go directly to the issues I’ve just discussed including anti-circumvention and intermediary liability.
In recent weeks, there has been mounting pressure for greater transparency. As of this morning, 66 Members of the UK House of Commons have signed an all-party motion for greater transparency, Members of the European Parliament have spoken out, U.S. Senators, and elected officials in New Zealand, France, Sweden, Finland, and Australia have all spoken out. In Canada, the NDP’s Charlie Angus has raised the issue but others have remained silent. If Canada is to craft its own copyright policies, when it comes to ACTA we must be silent no more.