Copyright Wordle by Chrissie H (CC BY-NC-SA 2.0)

Copyright Wordle by Chrissie H (CC BY-NC-SA 2.0)


The Fight for Fair Copyright Returns: Canadian Government Launches Major Copyright Review

The Canadian government kicked off its review of the Copyright Act this afternoon with a motion to ask the Standing Committee on Industry, Science and Technology to conduct a study on the issue. The formal launch had been expected for months since the 2012 reforms included a mandatory review of the law every five years. Lobby groups have been steadily gearing up for the review, with some hoping to undo some of the balancing provisions of the last reform process or demanding new restrictions. Indeed, restrictions on fair dealing, takedown rules, website blocking, and copyright term extension will undoubtedly figure prominently in the lobby playbook. Yet for millions of Canadians, the copyright review offers an opportunity to ensure that the law meets the needs of education, innovation, consumer rights, and creators with more flexibility in the form of fair use and restoring neutrality on Canada’s restrictive digital lock rules.

The decision to send the copyright review to the Industry Committee may surprise some, but it is consistent with the Copyright Act, which makes it clear that the Minister of Industry is the minister responsible for the legislation. In an effort to dampen concerns that Canadian Heritage will play a diminished role in the review (the Canadian government has long treated copyright as a shared responsibility), the rumours are that the Standing Committee on Canadian Heritage may be asked to assist on certain issues. Unless carefully crafted, that approach seems likely to lead to unnecessary duplication with the same witnesses seeking opportunities to appear before both committees since copyright issues cannot be easily separated as “industry” or “heritage”. Further, the cumbersome administrative approach seemingly guarantees a lengthy process with the review likely to run for much of 2018.

The lobby group wish list will start with new restrictions on fair dealing. The fair dealing provision (Canada’s version of fair use) has been the subject of multiple Supreme Court of Canada decisions that have conclusively ruled that it is a user’s right that should be interpreted in a broad and liberal manner. The Canadian approach is arguably still more limited than provisions found in fair use countries such as the U.S., Singapore, South Korea, and Israel. Despite considerable evidence to the contrary, groups have seized on changes in industry licensing practices to claim that the Canadian law has harmed authors and publishers. While educational groups have veered away from a licence offered by Access Copyright, the reality is that licensing expenditures have increased since 2012. In fact, some Canadian authors and publishers have expressed concern that their works are being copied in education using fair dealing, despite the fact that their books have been licensed in perpetuity by dozens of educational institutions with the sector spending millions of dollars to acquire the rights to use hundreds of thousands of e-books. These demands for double payment on the backs of students, who already spend hundreds of dollars on books every semester, should stop and be called out at the committee.

Meanwhile the music industry, fresh off convincing the government to move Copyright Board reform to the front of the line, can be expected to continue its campaign on the so-called “value gap”, a misleading term for targeting notice-and-takedown rules that are not even part of Canadian law. The industry has enjoyed remarkable success since 2012, growing far faster the world average and passing Australia as the world’s 6th largest music market. The growth has come largely through Internet streaming revenues, which now generate tens of millions of dollars every year for creators, publishers, and the broader industry. The industry is also likely to continue to lobby for copyright term extension, as foreshadowed by a lobbying blitz just last month in Ottawa.

If that were not enough, Bell and other allies are likely to call for new rules on website blocking in Canada. Bell admits that copyright reform is not needed for site blocking, but the link to the Copyright Act ensures that the issue will be a prominent part of its lobbying campaign. The reality is that Canada is already home to some of the toughest anti-piracy laws in the world with many legislative tools readily available for rights holders and some of the largest damages provisions found anywhere in the world. Further, these only represent a portion of the lobby demands, which are likely to range from a massive expansion of potential damage awards (from Access Copyright) to a revival of the iPod tax/private copying levy (music) to the creation of a new fee for linking to newspaper articles.

While these represent potentially radical distortions of a balanced copyright system, the review offers important opportunities to fix some of the ongoing problems in the law. The notice-and-notice system was enacted with good intentions, but internal government documents acknowledge that the system has been used to pressure thousands of Canadians into paying settlements even in situations where they have not violated the law. There is a long-overdue need to restore the system to its original intent.

Canada’s fair dealing provision has proven critical in recent months for creators, who have used it to ensure that their creativity is not shut down or blocked (examples include cases involving the film Roomful of Spoons and a documentary film on the Vancouver Aquarium). Yet Canadian law would benefit from a full fair use provision, consistent with that found in many other innovative countries. Moreover, with the government betting heavily on Canada becoming a leader on artificial intelligence, the prospect of copyright slowing AI development is a real possibility. This points to the need for a specific exception for text and data mining, similar to provisions used in other countries around the world.

Canada’s digital lock rules were the most controversial aspect of the 2012 reforms, with Canada caving to U.S. demands for some of the most restrictive rules anywhere in the world. In fact, even as the U.S. has established new exceptions for digital locks, Canada’s rules have remained largely unchanged (the exception involved access for the blind and visually impaired). The solution has been obvious for years as Liberal MP Geoff Regan (now Speaker of the House) warned in 2012 that “what the government seems to want to do is preserve old models and ignore the fact that we have moved into a digital world.”  The law needs a clear exception for circumvention for legal purposes such as fair dealing, a reform that would simply bring neutrality to the digital and analog worlds.

There are no shortage of other positive reform issues including the elimination of crown copyright and addressing copyright associated with indigenous communities. The good news is that there are signals that the government gets the need for balance and Canadian-oriented policies as evidenced by its rejection of term extension and restrictive digital locks in the TPP negotiations and the recent International Trade committee report that warned against unbalanced U.S. IP demands in NAFTA. Most Canadians do not follow the day-to-day policy battles over copyright, but the law has a significant impact on many aspects of their daily lives. The copyright review of 2018 will help shape future reforms creating a critical need for individual Canadians to ensure their voices are heard.