With the House of Commons back in session this week, I have an op-ed in this week's Hill Times that focuses on how a Conservative government intent on adopting a market-oriented policy approach might treat copyright reform. The column notes that there is the potential that history may repeat itself since in the 1980s years of Liberal copyright proposals were shelved when Brian Mulroney's Progressive Conservatives took office. In the current environment, I point to at least three potential issues that may face a similar shift.
First, the government could halt the longstanding practice of adopting a piecemeal approach focused on industry-specific reforms and exceptions. Several of the most contentious current copyright issues, including private copying and educational use of the internet, illustrate its dangers to the broader market. The market-oriented solution to these issues for Canada would be to follow the United States' model by incorporating a fair use provision into the law. If Canadian law were changed to make the list of uses illustrative rather than exhaustive, CD purchasers could lawfully copy their store-bought music without the need for an additional levy (as Australia is currently considering), while the education community and collectives would find a middle-ground that would allow for fair uses of internet materials in the classroom without compensation, but require licenses for more comprehensive uses.
Second, a conservative approach to copyright would also likely mean that the government would get out of the copyright ownership business. Crown copyright, a centuries-old concept that grants the government copyright in all work created under its direction, regularly forces Canadians to seek permission to use the very works that their tax dollars have funded. Dropping Crown copyright would help commercialize government data and enable the cultural community to creatively use government works.
Third, Conservative copyright would also approach legal protection for digital locks, known as technological protection measures, with considerable trepidation. The experience in many jurisdictions has demonstrated that TPMs are frequently used to limit interoperability of new technologies, impede new market entrants, and foreclose competition.