Diplomacy by Nick Youngson CC BY-SA 3.0 Alpha Stock Images http://alphastockimages.com/

Diplomacy by Nick Youngson CC BY-SA 3.0 Alpha Stock Images http://alphastockimages.com/

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Canadian Copyright Diplomacy: My Appearance before the Senate Standing Committee on Foreign Affairs

Last week, I appeared before the Senate Standing Committee on Foreign Affairs as part of its study on the impact and utilization of culture and arts in foreign policy and diplomacy. I was asked to consider the impact of Canadian copyright in foreign diplomacy, leading to an interesting and engaging discussion that touched on everything from the changes to the IP provisions in the TPP to the legality of streaming services. My opening remarks, which emphasized the potential for Canada to engage in copyright diplomacy by serving as model for other countries, is posted below.

Appearance before the Senate Standing Committee on Foreign Affairs, February 1, 2018

Good morning. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. My areas of specialty include digital policy, intellectual property, and privacy. I appear in a personal capacity representing only my own views.

I have limited time, but will begin with a bit of myth-busting when it comes to the state of Canadian copyright and the cultural market. This is relevant since it has a direct impact on three areas linked to your study: (1) external pressures to reform domestic laws, (2) the prospect of using Canadian copyright laws to influence reforms in other countries, in a sense engaging in copyright diplomacy; and (3) the interaction between Canadian copyright law and our sometimes contentious trade agreement negotiations.

Canadian copyright law in perspective

It is essential to state clearly and proudly that Canada meets its international commitments with respect to copyright. Indeed, we are viewed by many as a leader: a leader in offering strong protections for creators, a leader in striking a balance for fair access and innovation, and a leader in crafting innovative rules that are worthy of emulation by others.

Canada’s compliance with international standards can be found in every aspect of our law. We are a member in good standing with every major copyright treaty. We meet the international standard for term of copyright protection, we offer creators protection for both economic and moral rights, and we have some of the toughest anti-piracy laws in the world.

Canada also increasingly sets the standard for progressive approaches on access.  We have unique provisions to protect user generated content and educational access to Internet materials, we seek to strike a fair balance on the rights of creators and users in addressing online infringement allegations, we have a flexible user rights framework that protects creator interests on issues such as parody, satire, and criticism, journalists’ interest in news reporting, and research and teaching interests in all levels of Canadian schools and education.

The impact on the market

The impact of a balanced, progressive law compliant with international standards can be felt throughout the cultural sector.

For example, the days of worrying whether consumers would pay for music are largely over with the Canadian music market growing much faster than the world average, streaming revenues more than doubling in 2017, the Canadian digital share of revenues of 63 per cent exceeding the global average of 50 per cent, and Canada leaping past Australia to become the 6th largest music market in the world.

There are similar stories across virtually every cultural sector. Since the 2012 copyright reforms, music collective SOCAN’s Internet streaming revenues have grown more than tenfold. In fact, a report yesterday indicated that it grew again by a significant margin last year, nearly reaching $50 million annually. By comparison, in 2013, Internet streaming revenues were just over $3 million. Movie theatre and overall broadcast revenues have also continued to increase since 2012 and the video game sector represents one of Canada’s greatest cultural success stories.

The success extends to the publishing and education markets. Notwithstanding what you might hear, since the 2012 copyright reforms, there has been not been a decline in the publication of new Canadian titles. Educational spending on licensing works from publishers and authors has increased as the sector shifts from buying physical books and paying for collective licences to licensing e-books and access to massive content databases. Many universities (including my own) today licence over a million e-books, many with perpetual licences. This means that even as some publishers and authors express concern about educational copying practices, they earn new revenues from digitally licensing their works to educational institutions.

The implications of the Canadian success story

What are some of the implications of the Canadian success story?

First, on the domestic front, Canada is about to embark on a review of the copyright law that will serve as the foundation for future reforms. There is always room for improvement – we need better rules to support our ambitions on artificial intelligence and need to improve our notice-and-notice system for allegations of infringement to stop trolling activity – but we are starting from a strong position. In fact, Ministers Bains and Joly, in their letter to the Industry Committee, note that since market disruption often drives copyright reform, the law may not always be the best tool to address the current state of technology-driven change. The ministers acknowledge that many issues fall outside of the scope of the law, suggesting that efforts to use legal tools to impede changing marketplace dynamics may ultimately harm the very stakeholders the law is intended to assist.

Second, Canada should not shy away from engaging in cultural diplomacy to see its copyright rules adopted in other countries.  For example, I have just returned from Hong Kong, where I taught a short technology law course at Hong Kong University. Many in Hong Kong have been particularly interested in Canada’s non-commercial user generated content provision, noting that it could provide much needed safeguards for freedom of expression. Other countries have looked closely at our fair dealing approach and our Internet liability rules as potential models for their laws.

Third, these two issues converge when it comes to trade policy. Canada worked with the EU to craft a more balanced copyright framework that recognized both sides meet international standards and just led in the effort to bring the Trans Pacific Partnership to fruition without the United States, successfully arguing that several unbalanced copyright provisions that went beyond international standards should be suspended.  Indeed, the suspension of copyright term extension and digital lock rules helped create a more progressive agreement that may entice other countries to join.

Further, the recent Canadian approach helps establish a model for future trade agreements premised on meeting international standards of protection and progressive rights of access. The next step will be to bring our more innovative provisions into the trade realm, with obvious opportunities for Canada to position itself as a global copyright leader to the benefit of creators and users alike.

I look forward to your questions.

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