Thinking Outside the Canadian Copyright Box

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.


  1. Chris Brand says:

    (the levy comprises as much as half of the retail price of CDs)

    Actually, I looked at this recently. Best Buy has 100 Maxell CD-Rs for $34.99, or 35 cents apiece.

    With the levy at 21 cents, it’s 60% of the retail price.

    If the Copyright Board accepts the proposal of 29 cents for 2007-8, the levy would be two-thirds of the retail price !

  2. Darryl Moore says:

    Get rid of Berne
    Your proposals are a good start Michael, but I’m afraid to say that you are still thinking inside the box. That box is the Berne copyright treaty. I realize it is a non starter for so many, but it is the box we have to get out of.

    With more people able to create content, we need new rules that put shorter limits on copyright to make source materials more accessible. We need new rules with even stronger limits on software which is not in a human readable form. The idea that DOS 3.1 is and will remain under copyright protection for the life of Bill Gates plus 50 years in ridiculous.

    We need to re-institute a copyright registry. With it so difficult to locate authors and having a presumed copyright, it becomes very difficult to use material with out paying Excess Copyright for the privilege. Perhaps a presumed copyright for 2 years, then require registration beyond that.

    We need to make all copyright terms to be either from the date of publication or the date of creation, and be completely disconnected from who the author is or when he died. When does copyright expire on movies for example? Good luck figuring that out.

    If we are going to think outside of the box, then please, lets actually do so.