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Copyright reform needs a balanced approach

My recent column on Canadian copyright reform, which highlighted the dangers to both the Internet and to our education system posed by a report from a parliamentary committee chaired by Toronto-area MP Sarmite Bulte, touched off many reactions — both supportive and critical.


On the critical side, Fred Wardle of Access Copyright, a leading Canadian copyright collective, argued in a published letter to the editor that the committee's recommended reforms provide for a balanced licensing solution that would "effectively and fairly address the needs of creators and users of copyright materials on the Internet."


That perspective came as little surprise and was consistent with the views of several copyright groups that welcomed the Bulte committee's recommendations calling for increased protection. At the hearings, for example, Access Copyright argued that, on the Internet, "what appears to be publicly available is truly not publicly available, and certainly not publicly available for educational purposes."


At the other end of the spectrum, Diane Allen, the founder of the Infertility Network, wrote to express her support for the views expressed in my column. Allen relayed her concern about increased protections, noting that the reforms would hurt smaller health charities that rely on publicly available information on the Internet.


Further, Allen commented that previous copyright reform had already harmed her organization as attempts to record educational seminars on blank CDs were hampered by the levy imposed on blank media — a levy designed to compensate for private copying of music.


The conflicting responses reflect two very different visions of the Internet. Those calling for stronger copyright protections, including the Bulte committee, view the Internet primarily as a new distribution channel and method to copy. In their view, new copyright laws are therefore needed to control unsanctioned copying and to restore appropriate levels of compensation.


Those concerned about the effects of greater protections view the Internet primarily as a technology for creating, not a technology for copying. For this group, represented by the millions of Internet users that post messages to newsgroups, maintain blogs, or actively share their work online, the Internet is not a spectator sport. From their perspective, copyright law should support innovative and creative work, not obstruct it.


The challenge facing Canada's parliamentarians and copyright policy makers is they must find a way to reconcile these opposing visions. The Supreme Court of Canada has indicated that a balanced approach is to be the guiding objective in that regard, noting in one recent case that "excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization."


An appropriate balance that fairly addresses the concerns of creators, users and the public interest — the three key stakeholder groups identified by Supreme Court Justice Ian Binnie in a recent speech — is the over-all objective. In order to achieve this goal, I believe the process should be governed by five key balance principles.


First, the procedural aspects of copyright reform must be balanced. This requires that all three stakeholders be "at the table" during consultations and policy-making meetings. Unfortunately, the Bulte committee failed in this regard as the few user and public interest groups that participated were badly outnumbered by creator groups. For example, at the hearing on educational copyright issues, a representative from the Association of Universities and Colleges of Canada lamented that five rights holder groups were invited to appear before the committee, compared with only one education association.


Further, copyright reform proceedings must also be perceived to be balanced. According to Elections Canada, Bulte and her riding association have accepted thousands of dollars in campaign contributions from rights holder groups and broadcasters. Parliamentarians involved in the copyright reform process should refuse all such contributions to ensure that the perception of absolute impartiality is preserved.


Second, the balance objective must help shape every policy decision. This path means rejecting the Bulte committee's approach of weighing opposing policy approaches and simply siding with one or the other. Instead, policy makers must seek to reconcile opposing approaches by identifying an appropriate middle ground that best addresses the needs of all three stakeholder groups.


For example, rather than working toward a balanced and limited Internet exception for education, the Bulte committee simply considered the competing proposals presented by educational groups and rights holder groups and recommended the latter proposal.


Third, copyright reform analysis should incorporate empirical evidence and economic analysis. Too often during the Bulte committee hearings, witnesses voiced conclusions without supporting documentation. For example, the Bulte committee recommended the adoption of the much criticized notice-and-takedown system in which Internet service providers would qualify for a safe harbour from liability when they remove content from their systems that is allegedly infringing copyright.


In doing so, the committee all but ignored a recent economic study commissioned by Industry Canada that found that the more balanced notice-and-notice system, in which an ISP notifies its customer of the infringement allegation and removes content only under court order, would likely prove just as effective.


Fourth, Canadian policy makers should not be afraid to be creative in formulating uniquely Canadian solutions. While the Bulte committee made no effort in this regard, Canadian creativity could include support for Creative Commons-type initiatives that are working to enhance the size and scope of the public domain. (In the interests of full disclosure, I am associated with a project that is establishing a Canadianized version of the Creative Commons licences.)


Moreover, we should not hesitate to develop made-in-Canada legal solutions. For example, Canada should follow Australia's lead by identifying appropriate exceptions to technical protection measure protections when implementing the World Intellectual Property Organization's Internet treaties. Given the Supreme Court of Canada's emphasis on user rights, such exceptions might include protection of user rights such as copying for research, private study, criticism and news reporting.


Fifth, Canada's policy makers should continue to exhibit patience by prioritizing a balanced approach ahead of a copyright reform quick-fix. While some in the copyright community, including the Bulte committee, have expressed frustration over the slow pace of Canadian copyright reform, we have benefited from our slower approach by identifying the unexpected and detrimental consequences experienced elsewhere.


By moving too quickly on issues such as educational licensing, we should expect the unexpected.


Copyright reform has long been one of the most contentious and polarizing legislative issues. With the Supreme Court of Canada's balance objective now established beyond doubt, we must move past the old-style reform approaches typified by the Bulte committee toward a new era of reform that accounts for the interests of all Canadians.

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