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In Search of A Compromise on Copyright

Appeared in the Hill Times on November 8, 2010 as In Search of a Compromise on Copyright

Last week marked the return of the copyright debate to the House of Commons as Bill C-32 entered second reading. Six months after its introduction, it became immediately apparent that all three opposition parties will be seeking changes to the bill in return for their support. Three issues stand out as the most contentious: digital locks, fair dealing reform, and the extension of the private copying levy.

Canadian Heritage Minister James Moore was quick to criticize opposition concerns, but garnering the requisite votes to pass the legislation will require compromise.  The good news is that there may be a path to finding common ground on each issue.

Digital Locks

The digital lock rules were easily the most discussed aspect of Bill C-32. The Liberals repeatedly emphasized the need for Canadians to have the right to circumvent for format shifting, making backup copies, and other consumer activities.  This would require changes to the consumer provisions in the bill and the general anti-circumvention provision, since both create barriers to these common consumer activities.

Meanwhile, the NDP placed the spotlight on the impact of locks on education and teaching, describing the exceptions that require destruction of teaching materials thirty days after the end of a course as a digital book burning.  The Bloc was no more supportive, characterizing a legislative approach based on digital locks as “completely ludicrous.”

The compromise position must retain legal protection for digital locks – these provisions are an essential component of complying with the World Intellectual Property Organization’s Internet treaties – but ensure that digital locks do not trump all other copyright rights by preserving fair dealing and consumer rights.

The most obvious solution would be to alter the Bill C-32 approach by clarifying that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright.  This approach – which has been adopted by countries such as New Zealand and Switzerland – would ensure that the law could be used to target clear cases of commercial piracy but that individual consumer and user rights are preserved.  

Fair Dealing

Bill C-32’s fair dealing reforms, which add education, parody, and satire to the list of fair dealing categories, represents the government’s attempt to strike a balance between those seeking a U.S.-style fair use provision and those opposed to new exception categories altogether.  That middle ground came in for considerable criticism from the opposition parties, who expressed concern that the inclusion of education would lead to rampant, uncompensated copying.

The reality is far less worrisome. Canadian fair dealing analysis involves a two-part test. First, does the use (or dealing) qualify for one of the fair dealing exceptions. Second, if it does qualify, is the use itself fair.  

The extension of fair dealing to education only affects the first part of the test.  In other words, while Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair. The Supreme Court of Canada has identified six non-exhaustive factors to assist a court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

While this means that the Canadian courts have already established limits on fair dealing, the road to compromise could involve codifying the six-part fairness text within the Copyright Act.  This would ensure that judges would be required to assess the fairness of any use – including education – before it was treated as fair dealing.  The codification should alleviate any lingering MP concerns that expanding the fair dealing categories necessarily means abandoning copyright fairness and balance.  

Extending the Private Copying Levy  

Both the NDP and Bloc remain strongly supportive of extending the private copying levy to cover iPods and other devices.  Those proposals have raised concerns about the potential for very broad coverage including cellphones and personal computers, the competitive impact on consumer pricing, and the interaction between private copying and digital locks.  With the Conservatives strongly opposed to a reform they describe as a tax, extending the levy appears to face an uphill climb.

Yet a compromise may lie in identifying alternative mechanisms for providing financial supportive to Canadian creators.  A recent study of Montreal musician attitudes toward copyright by McGill law professor Tina Piper found that artists were far more focused on grant programs that play a key role in developing and distributing new music, facilitating performance tours, and expanding the international reach of Canadian music.  

Rather than expanding the levy, the government could commit to continued full program funding for the next five years.  That would match the five year period before the next Copyright Act review and give Canadian artists the financial stability that even the levy does not provide.  

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He is the editor of From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, a book on Bill C-32. He can reached at or online at

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