All Rights Reserved* by Paul Gallo (CC BY 2.0) https://flic.kr/p/6zMVmm

All Rights Reserved* by Paul Gallo (CC BY 2.0) https://flic.kr/p/6zMVmm

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Quebec Writers Group Calls for an End to Copyright Exceptions: “Only Where Access is Otherwise Impossible”

The Standing Committee on Industry, Science and Technology continues its year-long review of copyright this week with a mix of witnesses from education, libraries, writers, and publishers.  The Union des écrivaines et des écrivains québécois (UNEQ), which represents Quebec-based writers, appeared yesterday and submitted a brief to the committee with its key recommendations. There are several that will attract attention, including increased damages and an expansion of the private copying levy to cover e-readers, hard drives, and USB keys (a recommendation that may stem from a misunderstanding of the levy which is only for music). However, the most troubling is how the group takes aim at copyright user’s rights.

UNEQ’s brief calls for the narrowing or elimination of many of the current copyright exceptions. It wants to eliminate several of the exceptions established in 2012 including protections for non-commercial user generated content, private reproductions, and the Internet exception for education. It also wants new limits imposed on the fair dealing for education as well as restrictions on the use of parody and satire, two purposes that were included to better support creators. Yet most problematic is its recommendation to largely eliminate all other exceptions:

Define and circumscribe other exceptions according to the following: an exception should be allowed only in cases where access to works is otherwise impossible. Exceptions to this rule should remain rare.

This view of users’ rights – that there are no such rights or that exceptions only apply in cases where access is otherwise impossible – is inconsistent with the Supreme Court of Canada’s view of copyright and international legal standards.

If adopted, the change would cause incredible damage to freedom of expression since access is only part of the reason for fair dealing and other exceptions. Consider the implications of requiring permission to use existing works within news reporting or to engage in criticism of misinformation online. Access to this content is not the issue. Rather, it is the freedom to use works for criticism, news reporting, research, parody, satire, and the many other fair dealing purposes without the need for permission that safeguards freedom of expression. If impossibility of access were the standard, copyright exceptions and the copyright balance would cease to have much, if any, meaning. At a time when those arguing for balanced copyright consistent with the Supreme Court’s rulings are often misleadingly described as “anti-copyright”, few proposals are more at odds with foundational principles of copyright than the view that exceptions should be limited to instances where access is otherwise impossible.

5 Comments

  1. More flim-flammery from Geist. The term “international standards” is used, as if this were some undisputed universal measure. One can only guess he means American “fair use” standards, which have never had a place in Canadian society, and should not.

    So by this sleight of hand a brief calling for traditional Canadian standards to be upheld is cast as wanting to send us into uncharted territory which deviates from international norms.

    You’d think that for their money Canadian citizen-taxpayers could at least get a little honesty from Geist.

    • Pretty sure he’s referring to the Berne Convention, most other international IP treaties (eg TRiPS & WIPO Treaties) which are informed by Berne, and the UN Declaration of Human Rights. Limiting exceptions to circumstances where “access is impossible” is not consistent with the Berne 3-step test on limitations and exceptions, which is a well established international standard.

  2. Bob Morris says:

    However the Berne three-step also specifies equitable remuneration for copyright owners

  3. I always find news like this hilarious, considering that the people whom rely on and benefit from exceptions the most are the exact same people clamoring for ever greater levels of copyright enforcement. If ever there was a more apt expression, it’s the one about cutting off ones nose to spite ones face.

  4. Dear Mr. Geist,

    Thank you for your comments on our brief. In response, we would like to refute some parts of your article and clarify our recommendations.

    First, you are right to say that in Canada, the private copying levy is limited to music. However, as you know, this is the result of a court decision, not necessarily the intention of the lawmakers. We have submitted our proposal to the Standing Committee so as to have the law changed to conform to best practices elsewhere in the world. For example, in France, the SOFIA (Société française des intérêts des auteurs de l’écrit) collects and distributes royalties to writers and publishers resulting from digital reproduction on supports such as e-readers, cellphones and computers. We are asking for an expansion of a similar kind of the private copying levy in Canada.

    Second, you are also right in saying that restrictions on parody and satire may benefit some creators, but as an association representing all of Quebec’s writers in accordance with the Act respecting the professional status or artists in the visual arts, arts and craft and literature, and their contracts with promoters (S-32.01) and all Canadian writers of French-language literary or dramatic works in accordance with the Status of the Artist Act, we believe that an excessively broad interpretation of this exception leads to more losses than gains for our members.

    Narrowing and eliminating some exceptions may constitute an accurate summary of our brief, but this characterization does not apply to every exception. Our brief emphasizes how loosely some of the exceptions introduced in 2012 have been interpreted. We are striving to avoid excessive reference to the judiciary in implementing the Copyright Act while providing fair consideration for creators.

    Canada is the country with the most exceptions to authors’ copyright. It seems to us that freedom of expression was not threatened before 2012, when the recent amendments to the law were introduced, and that freedom of expression would not be further eroded if Parliament agreed to our recommendations. In adopting our basic position, that an exception should only be allowed in cases where access to a work is otherwise impossible, we are targeting cases where a collective agency cannot intervene or where it is very difficult or impossible to obtain a licence. We wish to significantly extend the reach of the collective agencies.

    The Copyright Act is under review and, in the process, we expect everybody will make recommendations to Parliament that are relevant to them. We hope that every industry association will present its point of view, so that the Act can eventually be aligned with Canadian values.

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