What Comes Next for Canadian Copyright Reform: Speculating on Three Scenarios

Parliament is still several weeks away from resuming, but those focused on the longstanding battle over copyright reform are already looking ahead to how things may unfold (I appeared this week on BNN to discuss). This post offers what I see as the three most likely scenarios on the now-certain passage of a copyright reform bill sometime over the next year or so. Note that this is not necessarily what I want to see happen, but rather what I think is likely to occur.

Scenario One – Bill C-32 Is Reintroduced Unchanged

The reintroduction of Bill C-32 is by far the most likely scenario. The reason is simple – it’s what the Conservatives have said they plan to do. The Conservative election platform stated:

A Stephen Harper-led majority Government will also reintroduce and pass the Copyright Modernization Act, a key pillar in our commitment to make Canada a leader in the global digital economy. This balanced, commonsense legislation recognizes the practical priorities of teachers, students, artists, families, and technology companies, among others, while aligning Canada with international standards. It respects both the rights of creators and the interests of consumers. It will ensure that Canada’s copyright law will be responsive in a fast- changing digital world, while protecting and creating jobs, promoting innovation, and attracting investment to Canada.

Since Harper noted in his first post-election press conference that his plans are unlikely to surprise, there is every reason to take him at his word. In all likelihood, Bill C-32 will be back and it will be passed.

Scenario Two – Bill C-32 Back With Minor Modifications

If Bill C-32 is not reintroduced unchanged, the next most likely scenario are minor modifications to issues such as digital locks (an exception for DVDs like that now found under the U.S. DMCA), fair dealing (codification of the Supreme Court of Canada’s fair dealing test), and the so-called enabling infringement provision (making violation subject to statutory damages). These modifications would allow the government to claim that it incorporated the testimony from the Bill C-32 hearing and therefore move the bill more expeditiously through the Parliamentary process.

It is possible that the government will hold off making these amendments so that it leaves some wiggle room for reform as the bill near its final stage. While it has the votes to get it passed without amendment, a conciliatory approach that generates broader support might be preferable. The political dynamics are now such that with the Bloc gone (with it the strongest opposition to C-32) and the most vocal Liberal critics defeated (particularly Pablo Rodriguez and Dan McTeague), the NDP is the key player. The NDP criticized Bill C-32 on both consumer and creator grounds. The new NDP caucus has many from the creator community (Charlie Angus, Andrew Cash, Kennedy Stewart, Tyrone Benskin) so will undoubtedly focus intently on the copyright bill. It will be looking for some wins, but given that its iPod levy proposals are going nowhere, it might ultimately promote modest consumer changes and emphasize maintaining culture funding in the face of the government-wide pressure for cuts that will affect all departments.

Scenario Three: A Reconsidered Approach to Copyright

The least likely of the three scenarios is the prospect that the government will make substantial changes to the bill. A change in ministers could trigger a broader review, but given the role of the Prime Minister on this issue (as evidenced by the Wikileaks cables), it seems very unlikely that new ministers would have the mandate to completely re-write the bill.

The more likely reason for a reconsideration is strategic, not political. Copyright policy is now driven primarily by trade policy, particularly trade relationships with the U.S., Europe, and to a lesser extent the BRIC countries (Brazil, Russia, India, and China). Copyright may be relatively unimportant politically, but trade agreements form a key part of the Conservative economic plan for the next four years. Consider that Harper devoted his morning press conference during the campaign (essentially the message of the day) to trade and border agreements on two occasions – once in Halifax to promote trade deals with Europe and India and once in Niagara Falls to discuss the border and trade relationship with the United States. Throw in the Conservative platform emphasis on trade with China and Russia and it becomes readily apparent that trade policy is far more important to this government than copyright policy.

Viewed in that light, linking copyright reform to Canada’s trade ambitions is not only likely, it is essential. Copyright and other intellectual property matters form a big part of these agreements and it would be a major strategic blunder to simply cave on IP issues without at least using the leverage to extract some trade gains in other areas. There is every reason to believe that Harper recognizes this connection. For example, in one of the Wikileaks cables, the U.S. expresses frustration with a 2007 Harper letter in which he links copyright reform with progress on other border issues. The U.S. cable states:

the Prime Minister appears to link progress on IPR initiatives under the Security and Prosperity Partnership (SPP) to initiatives on regulatory cooperation – a major Canadian concern.  Given  the timing of the letter, the lack of progress on IPR issues, and the attempt to link IPR to an unrelated Canadian concern we view this as an attempt to justify their inactivity rather than make the changes which more and more Canadians are realizing are needed.

Assuming Canada is making these connections, addressing the intersection between trade and copyright reform is challenge because the interests and demands of our trading partners differ. Caving to foreign pressures – ie. selling out Canadian copyright – would be a disaster as Canada would end up with the worst of all worlds with copyright laws essentially drafted in Washington and Brussels. The better approach is to identify the key pressure points from each with the goal of reducing external pressures and adopting policies in the national interest. This could include:

United States:  The U.S. is obviously the most persistent and vocal critic of Canada’s copyright and intellectual property laws. It should be readily apparent to the government that the U.S. will never be fully satisfied with our approach as they complain about virtually every major trading partner. In the last few years, the Conservative government has passed anti-camcording rules (passed in a matter of months at the request of the U.S.), changed proceeds of crime rules for copyright infringement, and participated in the Anti-Counterfeiting Trade Agreement. All of these initiatives were quickly forgotten as the U.S. moved on to the next concern. This year’s Special 301 Report points to issues that loom on the horizon after copyright, particularly patent and drug approvals that could add billions in costs to Canadians if we do what the U.S. wants.

For the moment, there are two key U.S. copyright demands – digital locks and IP border enforcement. On digital locks, the new copyright bill could easily be extended to jailbreaking devices such as iPhones and unlocking DVDs, since those exceptions are now found under U.S. law. Canada could certainly go further under international law and might have some political leeway to do so if we also address border enforcement concerns. On the issue of IP border enforcement, I suspect there will be another bill that addresses that issue introduced sometime soon. If the government were to introduce both simultaneously – the political risks that that approach brought under a minority government are now gone – it might reduce some of the digital lock pressure and allow for an approach that links circumvention to actual copyright infringement, as found in countries like New Zealand and Switzerland (as well as proposed in both India and Brazil).

European Union: The EU has already scaled back some of their copyright demands in CETA, which previously included an extension of the term of copyright protection. Given their desire to protect famous brand names, pharmaceuticals, and well known agricultural products, much of their attention has been focused on trademarks, patents, and geographical indications (there has been some focus on broadcaster copyright). If Canada is willing to move on these issues, the copyright pressures would be significantly reduced. This might include pursuing full fair use, which does not raise objections from the U.S., but does from the E.U. Of course, moving on those other issues will come at a significant cost, with the prospect of higher drug prices and restrictions on many Canadian food producers. The costs of CETA have not been fully explored as the IP provisions in particular are unprecedented in scope for a Canadian trade deal.

BRIC Countries: The copyright relationship with the BRIC countries is somewhat different, since none of those countries are actively pressuring Canada to reform its laws. In fact, given that all four BRIC countries are criticized in the U.S. Special 301 Report, Canada shares similar external trade pressures. The opportunity for Canada is to partner with the BRIC countries in pursuing more balanced approaches to intellectual property (together with countries such as New Zealand, Switzerland and the Nordic countries).  By working toward creating a coalition of countries that recognize that their national interest lies in striking an IP balance, Canada has the opportunity to meet its own needs and play a leadership role on the international stage. A trade deal with India offers a great place to put that approach into practice.

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  1. democracy?
    What the hell kind of democracy do we live in where the people the government are supposedly representing are completely ignored and the government just does the bidding of the governments of other countries?

    Harper needs to get the hand of the US government out of his ass and stop being a puppet for them and being a representative of the people who once again gave him an office.

    Not that I will hold my breath.

    4 more years of this. ~sigh~

  2. Please sir, can I have some more …
    While it may be tempting to sacrifice Canadian sovereignty of copyright, and associated digital issues, on the altar of ‘free trade’ it may not be the best course in the long run. I understand trade negotiations are a give and take affair but on this issue the Americans will always be coming back asking for more (will they ever take us of that scary special 301 list)?

    I believe our trading position is stronger than ever, we have the the abundant, easily accessed resources the Americans need and as well as a more stable economy.

    So then, why cave to a partner on a issue that they will never be satisfied with and at our own expense?

  3. Crockett
    To answer your questions, see the posting before your’s. Harper is a US puppet and does what he’s told. Even if it means selling out the people of this country to US totalitarian-style rules.

    OK. Enough with the re-captcha already. I have already cycled through more than a dozen unreadable words.

  4. Bjorn Johensson says:

    You are providing a great service to Canadians
    Dear Michael, I am a Canadian now living in Italy. I used to study at Carleton. You website and the valiable information you provide to Canadians is great. Thank you for the work you are doing.


  5. The Next Hotbed of Cybercrime Activity is… Canada?!?
    Cybercriminals are on the move again. And, this time, Canada is the prime target. IP addresses in China and Eastern Europe are highly scrutinized and undergoing intense evaluation. So hackers are on a quest to move their networks to countries, like Canada, that have better cyber reputations.

    It’s a little surprising to me as well. Previously, Canada was a place of great beer and hockey (next year, Habs!). But Websense recently conducted an analysis of Canada’s cyber security risk profile, and all trends pointed to Canada as the new launchpad for cybercriminals.

  6. Devil's Advocate says:

    More “studies” from the Fruit Scientists
    “But Websense recently conducted an analysis of Canada’s cyber security risk profile, and all trends pointed to Canada as the new launchpad for cybercriminals.”

    Sounds so “official”.
    And, it’s amazing how many “factors” and “trends” can be conjured up and made to look as if they were really significant enough can be “analyzed”, in order to form these “profiles”.

    Profiles that are to be parroted all over the place by the corporates and their faux media, in order to obscure the real intent of their agenda, hoping nobody really notices.

  7. The only real question I have about C32 is why, specifically, do its supporters believe that there should be more restrictions on what a person is allowed to legally do with a work that has been locked by the distributor than there is with a work that did not have such protections?

    Creating a law to do this causes a significant shift in the bias towards publishers using digital locks, and is likely to result in a market where consumers effectively have no freedoms to engage in the very acts that this bill also expressly says are otherwise completely legal and allowed.

    The only viable reason for this contradiction is for the government to pander to a particular business model that certain very large and very powerful have expressed in pursuing.

    That the supporters of this bill do not see this, or, more probably… simply do not care, is nothing less than an atrocity, and I would advise them that the general public does not continue to obey laws that they do not agree with indefinitely. People will conclude for themselves that the new restrictions on what they are allowed to do with works are the result of bad laws, and will simply privately ignore them.

    And I’m talking about people who would otherwise *NOT* be guilty of copyright infringement here… people who are simply copying the work for their own private use, media shifting, or making personal backups.

    Defenders of such measures might counter with an inquiry on what I would suggest to deter rampant copyright infringement if it were legal to break digital locks… but bearing in mind that it would still be copyright infringement to copy it for purposes that aren’t given an explicit exemption (such as private copies for personal use, etc) anyways, I would counter that query with the question that is making something illegal that most people are going to want to do anyways, and would have otherwise been legal, an acceptable solution to combating a problem that isn’t even practiced by those people… but practiced by people who would remain wholly undeterred by the presence of such a law?

    Sure, smarter publishers and distributors are going to offer consumers certain types of freedoms for format shifting or personal use copying… but with the presence of digital locks, those permissions or so-called freedoms are inescapably bound to technologies that will likely be obsolete within only a few years, and consumers will have little choice within the framework of the law but to use only obsolete technologies or archaic works.


    It is absolutely vital, IMO, that C32 be amended… and that it be amended urgently, to ease up on its digital lock restrictions and not render the innocent activities of people who would otherwise be perfectly within the bounds of law to engage in practices that many people today take for granted as their rights.

  8. New Government, New Approach
    I think it is reasonable to assume that, whatever bill is pushed through, it is going to involve a lot more restriction on citizens, and hand over a lot more control of this market niche to the corporate media establishment. Given this, it may be prudent, by those offended by this alteration to Canadian society, to begin actively contributing to the Creative Commons body of work. My gut tells me that, for the next four years, direct confrontation on the issue will simply be met with more force, and will ultimately bear little fruit.

    To that end, I have been considering how a non-artist might counter this power shift. Off the top of my head (and maybe it’s already been done?):
    – Commission an artist to create a CC piece. There is much opportunity on the web already for music & video, but perhaps patronizing a local painter for a work, adding it to the body of collected works, that kinda thing.
    – I think the CC movie/video industry could be infused with written material. In order to avoid copyright issues with Big Media, a conversion, to screen/stage-play, of works already completed by Project Gutenberg, would probably yield dividends in the long run. A generic action flick, generic drama, etc, would be good too – something that a CC director could take, alter, and release, without having to worry about American-style legal ramifications undermining their effort.
    – Still-cam of stage plays from local acting troupes. A half-decent camera, a good mic, and a tripod positioning the equipment to cover the whole stage, would go a long way in promoting the live, local experience, I think.
    – Contribute to a project in in-obvious ways. Grunt work, amateur editing, promotion, whatever you think you’re up to.
    – Start a bunch if indie media companies that segregate from the establishment, affiliate with each other, work as Big Media works, but in a freer, less restrictive direction. I don’t know if there would be much draw for talent to come on board with a business like that, it seems the pitch of easy fame and fortune goes a long way in the artistic circles, but if our new representatives in Ottawa are enforcing a corporate approach to media production & distribution, then a strong-willed Canadian corporate counter-collective might be a necessary component in the defensive tool kit.

    I guess I’m thinking that the most constructive approach, with our shiny new majority, is to increase the body of unrestricted art available, rather than try to keep the primary media producers from leveraging their legislated influence. A huge surge of (desirable) CC work would make a bill, such as C-32, considerably less relevant, I think.

    Maybe an artist can weigh in, here: Any apprehension/reservations of a patron hiring you to create something which is destined to be shared with everyone, freely?