Conference Board of Canada Releases New IP Report, Backs Away From Prior Recommendations

The Conference Board of Canada has released its long-promised report on intellectual property policy in Canada.  Readers will recall that last spring the Board withdrew three reports funded by copyright groups after admitting that the reports contained plagiarized passages.  In fact, the copyright report recommendations and text were taken directly from the IIPA, the leading copyright lobby in the United States.

The new report, which weighs in at 113 pages, was completed by Ruth Corbin, a Toronto-based IP expert.  Corbin started from scratch, reading a broad range of materials, conducting interviews, and leading a private roundtable on the issue (I participated in the roundtable and met separately with her).  While there is much to digest, the lead takeaway is to marvel at the difference between a report cribbed from lobby speaking points and one that attempts to dig into the issues in a more balanced fashion.  Three examples:

First, the report puts intellectual property policy into perspective as just one portion of the innovation agenda, noting that over-protection can be lead to diminishing returns:

Furthermore, protection rights are not the only policy option for the big-picture goal of improving Canada’s innovation track record. Indeed, statistical evidence demonstrates a non-linear relationship between strength of intellectual property rights and a country’s record of innovation. There are diminishing returns to rights after a certain point of “strengthening” (“the more the better” loses validity at some point), and countries have other policy means of encouraging innovation. Intellectual property rights should thus not become the whipping boy of debate. They are a necessary component, but not the sole guarantor of Canada’s innovation ranking and economic competitiveness. That conclusion should allow other considerations to enter the debate, such as compatibility with foreign policy, attraction of investment capital, consistency with privacy laws, business soundness, and common sense.

Following a literature review on the issue, the report concludes "a review of the literature reveals conflicting evidence and non-definitive conclusions regarding the impact of intellectual property rights on innovation."

Second, Chapter 5 of the report – The Digital Economy and Copyright in the 21st Century – is effectively the re-write of the withdrawn copyright report.  While the withdrawn report called specifically for DMCA-style anti-circumvention rules, notice-and-takedown requirements for ISPs, and blocked education-specific exemptions, the Conference Board has now backed away from all of those recommendations.  The ISP issues and fair dealing are simply described in a balanced fashion, pointing to the debate but avoiding a specific recommendation.

On anti-circumvention and WIPO, the report recommends ratification but notes the flexibility that exists in implementing the treaty.  After discussing the need to ratify, the report states:

legitimate concerns have been raised. Many of these concerns, it would appear, can be dealt with as tactical matters. For example, one concern is that the WIPO Internet Treaties could end up doubling our existing private copying levy in order to support royalty payments to foreign entities. Assuming such an analysis to have been accurately conducted and found to yield so perverse an outcome, a tactical repair could be readily undertaken by parliamentary direction to the Copyright Board of Canada.

With respect to anti-circumvention regulations, and assuming the WIPO Internet Treaties are brought into force, professors de Beer and Geist offer additional analysis of the cautionary measures that the Government of Canada should exercise to limit the scope of what should be considered a circumvention offence (i.e., circumventing for the purpose of committing copyright infringement). Their analysis provides yet another example of how to break the issues into manageable pieces. Indeed, there is some room for Canadian customization in how the WIPO provisions would be accommodated in our laws: the implementation models all differ for the U.S., the European Union, Japan, and Australia, although all have ratified the same WIPO treaty.

In other words, the Conference Board report now points to the flexibility in the WIPO Internet Treaties and the possibility of "Canadian customization."  This is precisely what many fair copyright supporters argued during the national copyright consultation and it is good to see the Conference Board now reach the same conclusion.

Third, the report recommends greater adoption of open access strategies.  In discussing the tabling of a new copyright bill, it notes:

Simultaneous support for "open-access" initiatives, where appropriate – such as facilitation of the use of government data with suitable safeguards, and readier access to publicly funded research – would help to unlock tremendous stores of knowledge and balance out the resources being expended on protection of rights.

While there is much to consider in this report, it certainly appears to be a good faith effort to examine the issues from a non-partisan perspective.  The Conference Board points to the need for copyright reform, but does so in a manner with far more context and balance than was found in the withdrawn, plagiarized reports.


  1. grunt
    intersting BUT..
    the broroadcast treaty?

    i see nothing on the drive-by provisions allowing data (and material from the web)
    to be privitized. and re-copywritten.

    It’s already an issue with on-line cartoonists and scrapers.

  2. Innovation
    “noting that over-protection can be lead to diminishing returns”

    As an innovator myself in media I can tell you over-protection is a major concern and I’ve seen several real world applications where innovators back off a great deal from projects that have the potential to move forward and create income for IP rights holders, but see the great big corporations in the room with horns on their heads, eye’s red, and green hair that smells of money (and what they have done collectively to new media sites globally) and a lot of them back off due to the fact they are so afraid right now of being sued out of existence. And then these corporations turn around and blame the consumer and the marketplace for the downfall in profits.

    A fair approach would be to focus on the innovation side of the market and how exactly do certain levels of IP protection effect innovation and investment. My guess is, the higher up the later on the protectionist scale you get, the less innovation occurs, and the less money available for creators. It’s innovation not copyright that drives industry forward.

    The lessons I’ve seen in real world applications over the past decade are starting to appear now in research. About time. Now what exactly is the CIPPIC doing on the ACTA file? Anyone? Are they still hiding behind their desks? Put that funding to good use, let’s get these ACTA docs released by court order if necessary.

  3. We shouldn’t have idiots at Warner or any other of the labels controlling innovation at all (they are not qualified):–Strands-Spotify–Last-fm–Napster/p1

  4. Re
    If people stuck with business term paper accomplishing, therefore I will offer to buy essays at some good essay writing service in such case.

  5. Jason: With all of this we should be aware of the pitfalls of the “one size fits all” approach. If the intent is to maximize “innovation” (a term which I believe is overused these days, as to me the term implies not incremental changes but rather a leap in technology or methodology), the lines may well vary by industry. For instance, where is the line between the use of a song in video game vs a collection CD (not the correct name, I am referring to one of those CDs which contain one or two songs from each of a number of artists, the type that the CRIA is currently under fire for not paying the royalties on). In the case of software, the line may in fact be different.

    Must of the debate has been driven by the publishers. Not necessarily the original producers. For them, the line is about protecting their profits. This makes sense; a corporation exists to generate profit for the shareholders, not to do public good, in particular if doing the public good reduces the profits. IP reform in Canada must balance the wants and needs of many different groups. This runs the gammut from people who want even tighter IP restrictions to those who advocate absolutely no IP rights for anyone. At the end of the day, pretty much no one will be entirely satisfied.

  6. Hendrik Boom says:

    non-compete clauses
    Some years back I read a study that figured out what drove innovation in California, Massachusetts, and, for a brief period, one other state (I think it was Illinois, but I’m not sure). It turned out to be the refusal of state law to honour non-compete clauses in employment contracts. So if you have an idea for a product improvement and your company isn’t interested, nothing stops you from taking it elsewhere.

  7. Ed R in Calgary says:

    A positive step forward
    While I am one who believe copyright reform should eliminate any IP claims at our schools and universities, reform as the report shows, needs to balance the need of innovation and Canadians, not that of corporations. Corporations act like sociopaths on a good days. Could their claims for stronger IP laws only go to show they do not care for countries or the people and only the shareholder? But how do we address the need for business to earn income on products they sell or is the model they’re trying to use (IP laws) going overboard? I.e. if you sell a product, and 5 years later, someone else figures out a better way to improve your product, shouldn’t the purist capitalistic ideology of ‘free markets’ allow you to sell that new product? And as the original product designer, isn’t it their job to ensure their product is innovative and continually improves to remain competitive?

  8. Anon-K: I completely agree with you with respects to the “one size fits all” approach. No matter which direction copyright policy takes, there will be some that are not going to be happy. Rather than trying to appease certain groups, the goal should be how to drive change within industry to allow more innovation to occur, and be balanced to where the current marketplace is located.

    Some argue that stronger IP reforms are needed, but from my experience, it’s those stronger IP reforms that’s setting president for industry to focus on compliance rather than innovation and what’s needed to drive change in each effected industry.

    A great example of the compliance vs change issue represented itself in the Toronto “Industry” town hall meeting in the copyright consultations. The Music execs were calling for reforms that don’t reflect the changes that have occurred in innovation. They were reacting to changes that have occurred in the marketplace due to innovation. If we bring in laws that try and inhibit the innovation that’s already occurred than it is my very strong belief that those laws will be ineffective. If we build a framework around that innovation (such as the SAC proposal) I think we’ll start to see a boom in innovative ideas, and thus the money in the pocket books of creators.

    We’re still in the cycle of “Creative Destruction” and renewal. Copyright reform will not save jobs in my industry. Those jobs that have already been lost are due to innovation making them obsolete. It would be quite silly if we were to start putting horse shoes on the wheels of our cars, because the Blacksmith lobby was worried about job security. Change has already occurred, and we need policy that’s forward thinking at the least, and not protectionist.

  9. Ed. Remember, corporations are a separate legal entity from the people that own/run them. As I understand it, they are even considered citizens of the country; they pay taxes, they are subject to the laws of the country and are subject to a form of conscription through the use of nationalization in times of crisis. Why then deny them the same rights as a “natural” person, if I understood you correctly, unless you are willing to deny those same rights to any natural person who seeks to profit from their IP.

    You do, however illustrate my earlier point about the current use of the term “innovation”. Incremental improvements in a product or methodology are often today termed as “innovation”, almost to the point of correcting a spelling mistake is considered innovation.

    Jason: don’t forget that the SAC proposal was related to the desires of a single sector. There are many other sectors in this country that are affected and should have a say in the final outcome. The SAC proposal should be viewed simply as that, a proposal from one group which reflects the views held by that group. It needs to be taken, along with input from many other sources, including the medical and software industries, to try to come up with a framework.

  10. Anon-K: The SAC proposal can be applied within all media sectors successfully. That fight is between the ISP’s and each effected industry not with consumers. Broadband consumer prices need to be regulated and capped. The ad market will be maturing online this year. Software is going inside the cloud, with respect to net apps. ISP’s should be considered broadcast signal carriers. IPTV is on its way.

  11. “ISP’s should be considered broadcast signal carriers.” meaning licensed and paying into a copyright pool, to either fund new media start ups, or to throw back into the hands of creators. The way I see it is something called a value chain disconnect within media, which needs to be reconnected. Proposals like SAC should be seriously looked at, and implemented at some level, and adapted to all media.

    The software industry is really a non issue. Everything will be run server side over the next few years and not on your hard drive (or at least very little will be run on your hard drive), so it’ll be very hard to pirate applications that run server side. There’s currently a huge amount of innovation right now on the security side of the app cloud, for those of you who are in Software development.

  12. Congrats
    I would like to say thanks to Mr Geist for getting the problems with the original report the attention that they so desperately needed. Because of that, instead of being on the fast road to an American style IP horror show, we may get a reasonable policy out of this yet. Nicely played sir.

  13. Smells Bad To Me.
    Anyone who’d put one iota of trust in this report will be starting on a path of lies, disinformation and manipulation in my opinion. Their credibility has been and is damaged. Intent was shown previously.

  14. The Conference Board of Canada is no longer credible.
    I just cant’ trust a word they say now. The CBoC is just another PR firm now. You slayed their credibility Dr. Geist. It was right and just. Thank you.

  15. Everyone is allowed a screw up once in a while.
    Think of your own school or work place. We’ve all made a mistake before, and we’ve all had that non-motivated colleague that always does the bare minimum. It’s true that the CBoC should of had an expert proof read the original recommendations, but it’s also true that to now assume that everything that comes from them is no good simply based on one incident is equally short sighted. Instead, read, digest, and critique everything you come into contact with based on their own right, not based on a logo or a name. Toyota is a good example….

  16. Smaells Bad To Me.
    To Joel, this was no simple school-yard mistake they’ve made. The report was so disgustingly word for word RIAA that there could be no fair distinction made. The CBoC disregarded they’re own report to curry business. As for having an expert proof the report, well, did or did they not know what the gist of the report was prior to proofing? It would seem so as they chose not to heed their own in house report. The CBoC is for business and about business, internet business, no ethics included. Pure greed. You could bottle the stuff but no stopper can stop the slime from escaping.

  17. My reading of the report
    First off, this is quite a change from the previous report. Less recommendations and more questions. And it seems that are asking some of the right questions.

    Their still have a bias. A bias towards business and a bias towards “increasing innovation”. On the whole, it is a much better document that the previous one. They aren’t “there” yet (and considering the bias I don’t expect that), but they are asking the right questions. As a report for business, it’s not bad. As a report for government representatives, it still has to be taken in context.

    Although they do separate the issues of trademark, patent, and copyright law, they don’t keep this distinction clear throughout the document. I found myself struggling with examples and data that was clearly meant to cover one area while they were purportedly discussing another.

    Mostly they didn’t discuss anything I hadn’t considered or observed previously. One thing that was new to me, was the idea that “balance” should be a balance between (my paraphrase) “an incentive to innovate and an incentive to disseminate” as being appropriate for “increasing innovation”.

    One other thing that I was surprised to see in this document, was the observation that if “Intellectual Property” isn’t actively being used or disseminated, it is no longer contributing to innovation. This concept is already embedded into trademark law, and it would be interesting to extend this idea into patent and copyright law.

    All in all, it is a marked change from the tone of the previous document. If I was a legislator planning for the future, I would be more impressed by the new direction it points when compared to the previous document, than I would be by the document in and of itself.

    It is a good step towards gaining back some credibility. As a business I would also compare the previous document to this one, and see where the arrow of the future points – and plan for it..

  18. Re: oldguy
    “As a business I would also compare the previous document to this one, and see where the arrow of the future points – and plan for it..”

    The arrow has been visible for quite sometime on the way forward. The copyright lobby isn’t interested in the future, they are interested in controlling the marketplace, especially within media. They had nice tight control over the market back prior to the tech boom, now it’s not there and they want it back.

    If more effected businesses were to be focused on moving forward and actually follow the marketplace, we wouldn’t have mass lawsuits, and lobbying for a 3 strikes policy, nor be in this debate. How long before our government actually figures this out is anyones guess, but yes this report is a step forward in actually looking at the problem rather than looking at bias lobby groups who want nothing to do with moving forward, rather fighting to keep that good old market-share they once had, through influencing the law books so they can get their way.

  19. Yeah.. First off please excuse the atrocious grammar of my posting. Loading myself up with cough syrup while suffering through a cold/flu can affect me that way..

    I have been reviewing the SAC proposal with this report in mind. In particular the point about the negligible value of a protected work/idea that isn’t being used or actively distributed. There is some synergy here that should be looked into. It could be a boon for both society and the artist if the details can be worked out.
    Combine this idea with a decent set of fair dealing/use rights and appropriate copyright terms, and we might have a framework that points the way out of the mess we have today.

    One of the things about the report is the emphasis on “Intellectual Property” as though it is a physical property. I still don’t agree with this evaluation. But having recently received my property tax assessment I realize there is an off the wall way they can have it their way, and still keep things fairly balanced. Implement an annual tax based on an assessed value of the “property”. These tax funds then go into outright purchases (appropriation?) of the lowest assessed works, which are then placed in the public domain. Let the copyright holder(s) assign a value of whatever they wish. If it is too low, it might be one of the ones “appropriated” by the tax fund. The “tax” can be offset by a quantity of free/gratis copies they make available into society, so if they wish they can make all copies “free” and still have a very high “tax assessment” value. I haven’t thought out all the ramifications of this idea yet, so I am open to criticism or fine tuning..