In addition to my Hill Times op-ed this week on the transformation of Canadian Heritage Minister James Moore from iPod minister to iPadlock minister, the paper includes a second article with some predictions for copyright reform. The opening of the article includes a quote from Canadian Heritage Parliamentary Secretary Dean Del Mastro on the reform process:
"It would be naïve of me to say that we could introduce a bill on copyright that would be loved on all sides."
Del Mastro's comment is consistent with the conventional wisdom on copyright reform, namely that it is a contentious issue pitting users against creators that is difficult to reconcile. Yet the conventional wisdom here may be wrong. It is true that a copyright bill is unlikely to be loved by all sides. In fact, a bill loved by any side is probably a bill that does not strike the right balance (that is one of the reasons Moore's shift to strong support for C-61 digital lock rules is so problematic – one group loves it, some tolerate it, many hate it). Far better, is a bill that is acceptable to all sides. That means there will be compromises for all with the goal of crafting a bill that meets the most stakeholder needs and maintains the copyright balance.
Is that possible? I think so. The key elements in such a bill would include:
1. Anti-Circumvention Rules
The rules on digital locks are easily the most controversial aspect of the forthcoming bill. Yet there is more agreement here than disagreement. At this stage, the majority of stakeholders accept that Canada should implement the WIPO Internet treaties and with it introduce anti-circumvention rules into Canadian copyright law. The fact that we move forward on WIPO should please the U.S. and many copyright lobby groups.
I – along with many others – have argued that it should only be a violation of the law to circumvent a technological protection measure if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing, private copying, or any other legal purposes. This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the WIPO Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the DMCA. It is also the approach that was recently adopted in India and bears some similarity to both New Zealand and Japan. While some would not love this – some would want more, others less – it is likely an acceptable compromise to most.
2. Fair Dealing
The other highly controversial issue is fair dealing. We should start by noting that everyone agrees that some reform is needed. The minimum additions that enjoy fairly broad support include parody, satire, time shifting, format shifting, and device shifting. These additions were either found in C-61 or have strong support from creator groups. In other words, the government could add all of these without much, if any, opposition.
The bigger question is whether to adopt a more flexible approach by making the fair dealing list illustrative rather than exhaustive. There are benefits to this approach (greater flexibility, technology neutral, reduces future lobbying and reforms) and – opponents argue – some downsides (uncertainty). I side strongly with the flexible approach as I believe the concerns are vastly overstated, similar provisions are found in other countries (including the United States), and any changes would be built upon years of Canadian jurisprudence.
However, it is important to recognize that the issue is even more complicated than an either/or choice. Bill C-61 included exceptions for education along with provisions targeting libraries and teachers. The value of flexible fair dealing is that addresses all of these exceptions as well, ensuring that many stakeholders don't get everything they want, but may get enough to find the compromise acceptable.
3 . Intermediary Liability
This should be easy. Both Bill C-60 and C-61 implemented notice-and-notice and the system has been used informally in Canada for years. Sticking with a provision that is generally viewed as acceptable by all stakeholders makes sense.
4. Other Provisions
Bill C-61 was a complicated piece of legislation with many other provisions addressing performers rights, photographers rights, statutory damages, and more. Many of these are not particularly controversial. It is not that everyone loves these provisions, but most seemingly can live with them in order to strike a deal on copyright.
5. Private Copying
Private copying has been in the spotlight with the Angus private members bill and the Canadian Heritage motion that passed in the House of Commons. The Conservatives have been vocal opponents of extending the levy and there is no hope that it will appear in the forthcoming bill. However, with support from opposition parties and artists groups, a middle ground is needed. There are multiple proposals on the table for extending the levy (ACTRA, Songwriters Association of Canada) and multiple concerns voiced about how the levy currently functions and the implications of applying it to other media. A commitment to study the levy – what works, what doesn't, and what alternate compensation systems are possible – offers some forward progress in a manner that may again be acceptable to many stakeholders.