Appeared in the Hill Times on January 17, 2011 as Liberals’ Copyright Position may Provide Roadmap to C-32 Compromise

The last week of Parliamentary activity in 2010 struck many as a new low point for Bill C-32, the copyright reform bill.  The legislative committee examining the bill met only once, maintaining the lethargic meeting schedule that at the current rate could run into the fall if all stakeholders are given their moment in the sun.  

The day after the solitary hearing, Industry Minister Tony Clement and Canadian Heritage Minister James Moore held an impromptu press conference in an Ottawa shopping mall to confirm that they will not introduce an “iPod Tax” and warn that all three opposition parties support such a measure.  When the press conference was quickly followed a radio ad with the same message, Liberal MPs angrily responded that the Conservatives were lying, offering a statement on their C-32 position, including opposition to extending the private copying levy to iPods.

While the events generated considerable ill-will, they may ultimately be viewed as a crucial step forward.  Given the current minority government, it has always been clear that compromise with at least one opposition party will be needed to pass Bill C-32.  With Bloc MPs circulating petitions opposed to the bill, the Liberals and NDP are the obvious hopes for finding a solution.

There is still a divide among the political parties, but the Liberals have now outlined their roadmap for a Canadian copyright compromise, much of which bears a resemblance to public comments from NDP MP Charlie Angus. A deal on C-32 may be there for the taking with the following key issues to be addressed:
 
Fair Dealing

Bill C-32’s fair dealing reforms have generated enormous controversy with inaccurate claims that that the addition of education as a fair dealing category will permit rampant, uncompensated copying.  The Liberal position makes it clear that its officials have not been misled by the misinformation campaign.  Rather, they are supportive of retaining the expanded fair dealing provision with two amendments.

First, the party is calling for a clear definition of “education”, a reform that should be relatively easy to implement given the need to include at least conventional educational institutions within the definition.  Second, it wants “a clear and strict test for ‘fair’ use for education purposes.” This could involve codifying the Supreme Court of Canada’s six-part fairness test within the Copyright Act.  

Digital Locks

The Liberals have repeatedly emphasized the need for Canadians to have the right to circumvent for format shifting, making backup copies, and other consumer activities.  This will require changes to the consumer provisions in the bill and to the general anti-circumvention provision, since both create barriers to these common consumer activities.

This suggests both the Conservatives and Liberals are supportive of retaining legal protection for digital locks, but in order to obtain opposition support (the NDP have voiced similar concerns with the issue), the Bill C-32 approach must be clarified that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright.

Non-Commercial User Generated Content Provision

Several stakeholders have expressed concern that Bill C-32’s non-commercial user generated content provision could harm creators’ commercial exploitation of their works. While the reality is that the provision is limited to non-commercial activities, the Liberals want the language further “restricted and tightened.”  

Once again, this compromise seems doable.  For example, moving the UGC provision within the Copyright Act’s fair dealing rules would establish a second layer of analysis that would require any mash-up to meet both the fairness analysis and the non-commercial criteria.

Private Copying Levy  

Rather than expanding the levy to iPods, the Liberals have called for a new Private Copying Compensation Payment of $35 million to be transferred to Canadian artists each year, through the Canadian Private Copying Collective (CPCC). The proposal garnered praise from the CPCC, but criticism from other creator groups who wondered why the new payment was limited to the music industry.

Bridging the divide on this issue will not be easy, but a possible approach would be to establish a new program linked specifically to the challenges faced by creators in the new digital economy.  For example, a new Digital Economy Transition Fund, backed by revenues generated from the forthcoming spectrum auction, could be used to provide direct support to creators such as musicians, songwriters, screenwriters, and authors. The approach would offer a more transparent and accountable use of public dollars, while providing creators with an additional source of revenue as demanded by both the Liberals and NDP.

Areas of Agreement

The Liberal statement is important not only for what it says, but also for what it does not.  There is no reference to changing the Internet service provider provisions, the rules designed to target websites that facilitate infringement, or the changes to statutory damages.  Each issue has been debated at committee, suggesting that the Liberals may be comfortable with the C-32 approach and offering a glimmer of hope for those anxious to see a copyright bill passed in 2011.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He is the editor of From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, a book on Bill C-32. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.