In recent weeks, there has been some media coverage claiming that Canadian educational materials are disappearing in the face of copyright fair dealing rules. For example, several weeks ago, Globe and Mail writer Kate Taylor wrote a column on copyright featuring the incendiary headline that “Kids Will Suffer if Canada’s Copyright Legislation Doesn’t Change.” This week, the CBC provided coverage of a writer’s conference panel with a piece titled “Copyright-free material edging out Canadian texts” that speaks of sales falling off a cliff.
These articles are the latest shots in the battle launched by Canadian publisher and writer groups against fair dealing. The campaign includes regular meetings with Members of Parliament from all parties (speak to almost any MP and they will tell you that they have heard horror stories about Canadian copyright), international letter writing campaigns, and commissioned studies that feature unsubstantiated claims about the state of licensing revenues in Canada (the PWC study comes with the caveat that “we provide no opinion, attestation or other form of assurance with respect to the results of this Assessment”).
While there have been some notable responses from people such as Meera Nair, many copyright watchers have remained largely silent, perhaps assuming that the reliance on false rhetoric will fail to find an audience. It is true that the claims have fallen flat with key independent decision makers such as the Supreme Court of Canada, the Copyright Board of Canada, and the Australian government’s Productivity Commission, but the persistent rhetoric could lead to an inaccurate view of Canadian copyright just as a review of the law is planned for 2017.
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Bell’s defeat this week at the Federal Court of Appeal over its MobileTV service marked the second high profile regulatory loss in recent months for Canada’s largest communications company. Last month, the government rejected Bell’s cabinet appeal of a CRTC decision on broadband infrastructure. The CRTC ruling means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis.
Bell’s appeal (and accompanying lobbying effort) was premised on the notion that CRTC regulation would force the company to reconsider its fibre investment. Indeed, its cabinet appeal stated:
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In the fall of 2013, Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over how Bell approach to its Mobile TV product. Klass noted that Bell was offering a $5 per month mobile TV service that allowed users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.
In January 2015, the CRTC released its decision in the case, siding with Klass. The Commission expressed concern that the service “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.” While Bell argued that the mobile TV service was subject to broadcast rather than telecom regulation, the CRTC ruled that mobile television services effectively invoked both broadcast and telecom regulation, since a data connection was required to access the service.
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The ability to record television programs is a feature that most consumers take for granted today, but when the Sony Betamax was first introduced in the 1970s, it revolutionized television and sparked high profile lawsuits by the major Hollywood studios who wanted to block its availability. The battle between Universal Studios and Sony ultimately made its way to the U.S. Supreme Court, which ruled that Sony was not liable for contributing to copyright infringement since its product had substantial non-infringing uses.
My weekly technology law column (Toronto Star version, homepage version) notes that the battle between established players and distributors of disruptive technologies has since played out many times in courtrooms and legislatures around the world. From the introduction of the portable MP3 player (which the recording industry tried to stop in a 1999 case) to disputes over the availability of virtual private network services, judges and policy makers often return to the U.S. Supreme Court’s recognition that stopping the distribution of new technologies merely because they are capable of infringing copyrights would create an enormous barrier to new products and services that have many different uses.
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Yesterday I had the pleasure of appearing as a panelist at the government’s town hall meeting in Toronto on the Trans Pacific Partnership. The town hall, held in a packed auditorium at the University of Toronto, featured International Trade Minister Chrystia Freeland (in listening mode) along with three panelists (myself, C. D. Howe’s Daniel Schwanen, and Unifor’s Jerry Dias) and moderator Dan Breznitz of the Munk School.
It is easy to become cynical about the government’s emphasis on public consultations. They are happening everywhere – innovation, digital CanCon, TPP, and soon copyright to name a few. But to attend yesterday’s TPP town hall was to witness the remarkable passion and enthusiasm for public engagement on critical public policy issues. The event ran nearly 2 1/2 hours with dozens of speakers from an incredible range of ages, backgrounds, and interests. There were librarians and archivists focused on copyright term extension and digital locks; several doctors spoke to the impact of the TPP on public health and access to medicines, food experts highlighted the dangers associated with food security, environmental activists focused on the TPP and climate change, and speakers of all ages (including a 92 year old woman) expressed concern with the investor-state dispute resolution provisions. Some speakers quoted from Freeland’s book on plutocrats to note the inconsistency between the TPP and the Minister’s prior writing. An aboriginal student nearly broke down speaking about the need to consult first nations, bringing the room to its feet.
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