The Hill Times this week features my special opinion piece on copyright issues (Hill Times version (sub req), homepage version). The column calls attention to Bruce Lehman's recent acknowledgement that "our Clinton administration policies didn't work out very well." Lehman followed the criticism of U.S. policy by issuing a challenge to Canada, urging policy makers and political leaders to think outside the box on future reform. Lehman argued that Canada was well-positioned to experiment with new approaches consistent with international copyright law and I add that there are some obvious differences between Canada and the U.S. including our trade differences (copyright exporter vs. importer) and the success of the Canadian music market (faster digital download sales growth, more online music sellers on a per capita basis).
Given the Canadian marketplace realities and the Lehman recommendation to chart our own course on copyright, how might Industry Minister Maxime Bernier and Canadian Heritage Minister Bev Oda respond? I point to three possibilities.
First, Canada should follow the U.S. example by expanding the current fair dealing provision. This issue has the support of stakeholders from across the copyright spectrum – artists groups, including the Canadian Music Creators Coalition, Appropriation Art, and the Documentary Organization of Canada, have all focused on the need for a U.S.-style fair use provision; consumers groups have called for a fair use provision to legalize common activities such as the recording of television programs; and industry, including telecommunications giants such as Telus, have echoed the call for fair use, fearful that the current law is a barrier to innovation that places Canadians at a disadvantage in comparison to their U.S. competitors.
Second, Canada should consider formalizing a system to monetize peer-to-peer file sharing. The current private copying system arguably already legalizes personal, non-commercial downloading of music, yet the levy on blank CDs has proven very controversial given concerns about market distortions (the levy comprises as much as half of the retail price of CDs) and unfair cross-subsidization.
Third, Canada should recognize that strategies premised on legal protection for DRM are both ineffective and unnecessary. With the Canadian digital market already experiencing rapid growth, government intervention is not needed. Instead, Canadian competition regulators should carefully monitor the competitive and consumer implications of DRM implementation to ensure that new technologies are not used to stifle innovation and consumer rights.