Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
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.
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.
The Honourable William Vancise, the former Chair of the Copyright Board of Canada, recently delivered a combative (and entertaining) speech at an ALAI conference in which he took the critics of the board head on. Although the conference was focused on the future of the Copyright Board, many lawyers who regularly appear before the board seemed reluctant to air their concerns in public. Instead, it fell to Vancise to liven the proceedings. The board has posted the speech online and it is well worth a read. I was in the audience and came in for criticism for this 2013 article titled It’s Time to Admit the Copyright Board is Broken.
Vancise reserved his strongest criticism for Music Canada and its lobbying campaign against Tariff 8:
From the moment that the Liberal government renamed Industry Canada as Innovation, Science, and Economic Development it sent a clear signal that innovation is a top policy priority. Indeed, in recent months Minister Navdeep Bains has repeatedly called for bold policies focused on addressing Canada’s dismal innovation record.
My weekly technology law column (Toronto Star version, homepage version) notes that while the specifics of the Canadian innovation policy have yet to be revealed, a recent Australian government backed study provides a potential roadmap. The Australian Productivity Commission, which functions as an independent “think tank” for the government, released a 600 page draft report in April that proposes a myriad of changes to its intellectual property system.
The government asked the Commission to report back on whether the current legal frameworks “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.” The result is a comprehensive report based on hundreds of submissions and consultations representing a broad range of views.
The revolving door between government and lobby groups has long been a source of concern in the United States, where lead government IP officials have regularly jumped to lobby groups representing music, movies, and software interests and vice versa. In recent years, that has included the USTR official responsible for copyright in ACTA and the TPP moving the MPAA, the lead software industry lobbyist joining the USTR, and the general counsel of the Copyright Office joining the top international music association.
The Lobby Monitor reports that the revolving door has apparently migrated to Canada, with the former Director of Regulatory Affairs for Music Canada joining the government to play a key role in copyright policy, only to be replaced by the former Director of Parliamentary Affairs within the Prime Minister’s Office, who was the lead on the surprise copyright term extension for sound recordings passed in 2015.