Balancing Act by mpauliks (CC BY-NC-SA 2.0) https://flic.kr/p/EnZaAU

Balancing Act by mpauliks (CC BY-NC-SA 2.0) https://flic.kr/p/EnZaAU

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Against Copyright Balance: Canadian Heritage Officials Say It’s Time “To Move Beyond the Notion of Balance”

As the Standing Committee on Industry, Science and Technology (INDU) prepares for its first copyright review hearing next week featuring various representatives from the education community, MPs will regularly hear witnesses talk about the “copyright balance.” For Canadian copyright policy, balance has long been a foundational goal, regularly reflected in the views of both government and the courts. Yet according to a document obtained under the Access to Information Act, last fall officials at the Ministry of Canadian Heritage advised Minister Melanie Joly to abandon the emphasis on a copyright balance.

The document, an early draft of the ministerial letter to the INDU committee on the copyright review, includes the following passage:

Let’s use this opportunity to move beyond the notion of balance. A lot, probably too much, has been said in the name of balance. It usually leads to polarized positions, leaving no room for finding common ground. In an era of reconciliation, we should aim to try to change this conversation too.

It should be noted that this passage was not included in the final version of letter. In fact, the word “balance” does not appear in the final letter, presumably reflecting the common ground between two departments that bring different perspectives to a challenging policy issue.

While the rejection of balance ended up on the cutting room floor, assuming the Canadian Heritage language reflects views within the department, it represents a significant departure from the current state of Canadian copyright law. In Theberge, the Supreme Court stated:

The Copyright Act  is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator…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.

That vision has been repeatedly affirmed by Canada’s highest court. In CCH, it stated:

As mentioned, in Théberge, supra, this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. 

In SOCAN v. Bell Canada, the court linked the balance discussion to fair dealing:

CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act .  One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement.  In order to maintain the proper balance between these interests, the fair dealing provision “must not be interpreted restrictively”

The current government has also referenced balance in copyright. As part of its Copyright Board reform consultation, it noted “the Board regulates the balance of market power between rights holders and users to ensure that the value of the use of copyrighted content is fair to all parties and end-users.”

During the last copyright reform process, balance played a key role. In the Speech from the Throne, the government committed to legislative reform by stating “our Government will introduce and seek swift passage of copyright legislation that balances the needs of creators and users.” Upon introduction, the government emphasized a balanced approach:

One of the bill’s main objectives is to balance the interests of all stakeholders in the copyright regime. Achieving this balance has become increasingly complex given the exponential growth of the Internet. Canadians can obtain protected works online, sometimes through revenue-generating platforms or services, but also through free services, both legitimate and illegitimate. Our capacity to use high-quality Web services to obtain, protect and create copyrighted works is essential to our economic success and our cultural presence in the world.”

Given the focus on a copyright balance, Canadian Heritage copyright officials were effectively advising Minister Joly to shift away from the law and longstanding government policy. The position sends a warning signal, as even with its deletion from the final letter, Heritage officials may be shifting toward prioritizing the interests of a select group of stakeholders with more of a “winners and losers” approach to copyright. That could create significant political risks for Joly and suggests that Minister Navdeep Bains, the minister statutorily responsible for the Copyright Act, must stand firm to ensure that the views of all stakeholders is reflected in any reforms to Canadian law.

6 Comments

  1. Hmmm – I usually agree with your position, but in this case I see what she is saying. “Balance of power” is a combative term – if we are moving from that to a collaborative “reconciliation” then I support the move. Countries that rate high in trust and cooperation generally have higher standards. https://ourworldindata.org/trust

    I think this time around, you should put away your club, and give them the benefit of the doubt. (Just my 2 cents)

    • Lorne, the term “balance of power” is not used here. Apply it if you like but you seem to miss the point of employing, or eliminating, the word “balance” from discussion of reforming copyright regulations.
      To make the aim not “balance” between users and stakeholders, rather, is a scenario that results in winners and losers. More reasonably, fair use should be a guiding principle. But as in the position of the Music Industry collective position described yesterday, the goal is not balance but fleecing cash out of consumers, even if they are not using any of their products which they make available freely on the Internet, for promotional purposes. Now makers want consumers to pay for things they are not using, and things that creators are using to promote themselves. That is the problem. We already pay, as taxpayers, for many things associated with cultural production. Now producers are trying to make us pay again. And again. And again. It is up to gov’t to regulate, and yet again, courts are showing the way. If I interpret correctly, Geist is arguing that courts continue to advocate for balance. Gov’t, and copyright holders, don’t want that.

  2. Kelly Manning says:

    There can be more to it than fleecing customers. We have recently seen multiple claims of Confidentiality Agreements and Non Disclosure Agreements being used to kill stories about celebrities.

    In the UK they used to have the hangman burn banned books in the marketplace. Translators of bibles to English were often pursued, even into other countries, before the King James “Authorized” Bible was created.

    In the middle ages minstrels used to be free to memorize and perform works created by others.

    Anyone could read a written work and make a copy. The Library at Alexandria used to search ships as they came into port and make copies of works they found.

    Patent protection is the counterpart of copyright for making objects, interfering with the natural ability of someone to make their own copy of something.

    James Pickard got a patent on using a fly wheel with a crank, even though cranks had been used with wheels for thousands of years. James Watt refused to give in to Patent Troll Pickard and used a Sun and Planet gear system on his early steam engines.

    https://blog.p2pfoundation.net/the-constraining-role-of-ip-and-patents-1-case-study-of-steam-engine-innovation/2010/09/05

  3. Bob Morris says:

    Balance is not a concept around which there is agreement on what it means here.

  4. Kelly Manning says:

    When the USA extended Copyright Protection time lengh for Mickey Mouse, Superman, etc. they balanced that by granting it to the original creators, or their heirs. The idea seemed to be balancing the extended period against the original transfer of Copyright being based on the Copyright period that existed at the time it was sold.

    Superman Litigation eventually transferred the extended copyright to the heirs of one of the creators and an heir of the other creator talked, at least, to one of the lawyers. The litigation campaign was marked by accusations of break ins at the offices of the lawyers for the heirs.

    It can be disheartening to see the heirs of creators waging poorly funded campaigns against corporations who stand to make many millions from Copyright protected creations.

    https://www.authorsguild.org/industry-advocacy/end-of-the-road-for-siegel-and-shuster-heirs-superman-battle-a-cautionary-tale/

    https://www.huffingtonpost.com/brad-reid/broad-legal-lessons-from_b_9301616.html

  5. Kelly Manning says:

    Here is a recent example of a case where a publisher bought exclusive rights to a story, apparently with the intent not to publish. The woman involved does not have to return the “exclusive” fee she was misled into accepting in exchange for the right to her story.

    http://canoe.com/news/world/ex-playboy-model-karen-mcdougal-settles-lawsuit-over-alleged-trump-affair

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