Copyright did not figure prominently in either the government’s election platform or the Speech from the Throne, but the two departments responsible for copyright policy – Innovation, Science and Industry led by Francois-Philippe Champagne and Canadian Heritage led by Pablo Rodriguez – have both been actively consulting on a myriad of issues this year. The departments just released the submissions they received to one of three consultations on copyright, this one on intermediary liability issues. There was a prior consultation on copyright term extension (expected in some form in 2022 given the obligations under the USMCA) and another on innovation policies such as an exception for text and data mining to support the development of artificial intelligence. I submitted responses to all three consultations (term extension here, AI will be posted shortly).
My submission in the intermediary liability consultation focuses on two main points. First, website blocking is a disproportionate, ineffective and undesirable response to copyright infringement. Recent Canadian court decisions that have approved of the practice raise significant concerns for freedom of expression and net neutrality. If adopted, it must be a measure of last resort featuring robust safeguards to ensure full due process and to prevent over-blocking.
Second, lowering the knowledge standard for inputting intermediary liability is undesirable. Current safe harbour provisions help to preserve net neutrality and promote freedom of expression by eliminating any incentive for platforms to pre-emptively remove content in the interest of avoiding liability. Were reforms made such that intermediaries, such as ISPs, attract liability upon receiving notice of alleged infringement, copyright owners would be incentivized to make even weak or frivolous allegations in order to have questionable content removed.
While it will take some time to fully review all the submissions, a quick glance reveals few surprises. Bell is still leading the charge for website blocking, Music Canada still wants more aggressive takedown rules, copyright collectives still want to roll-back user rights, and the education, library and consumer groups are still defending user rights. This process bears commenting as it has all the hallmarks of a copyright policy version of the movie Groundhog Day, in which the same day repeats itself over and over again. The same is sadly true for copyright policy, where copyright lobby groups seeking to limit fair dealing or mandate website blocking use the same tactics again and again in the hope of getting a different outcome.
The reality is that these issues have been canvassed repeatedly by politicians, courts, and regulators over the past decade. Successive Canadian governments conducted extensive copyright consultations in 2010 (leading to the 2012 reforms to the law) and again in 2018. The Supreme Court of Canada has heard multiple cases involving fair dealing (most recently in the decisive Access Copyright v. York University case) and left no doubt that it is a users’ right that should be interpreted in a broad and liberal manner. The CRTC conducted a process on website blocking and rejected the application on jurisdictional grounds. The 2018 copyright act review provided a clear roadmap if there is an appetite for reform: the expansion of fair dealing for innovative purposes such as text and data mining, new exceptions to the anti-circumvention provisions, and the elimination of crown copyright.
Instead, the departments – pressured by lobby groups – launch new consultations seemingly designed to wear down the thousands of Canadians that have actively participated in past consultations and processes, only to find the government asking the same questions yet again. The failure to act on past reviews alongside these new consultations suggests a marked departure from the government’s prior commitment to a balanced copyright policy approach, jeopardizing the confidence of Canadians in copyright policy development. Indeed, if that weren’t enough cause for concern, another consultation may be just around the corner as the next statutorily mandated review of the Copyright Act is presumably set to start next year.
It’s not deja vu, no matter how often we’re burned/kicked/shocked… It keeps happening because wealthy multinational corporations see technology disrupting their business models. So they hire American lobbyists who write legislation for Canadian subsidiaries/unions and organizations to provide to parliament which will hobble the technology. MPs then introduce the legislation nearly word-for-word as the Rainbows And The Children Saving Act, and if the public backlash kills RATCSA, they’ll reintroduce it when you’re not looking as the Save the Children Anti-Terrorism Puppies Act SCATPA. And if you voted out Harper’s Conservatives because of his “copyright modernization” bill, the lobbyists target Trudeau’s Liberals who introduce basically the same bill. They failed, but don’t worry, they’ll reintroduce it, repeatedly until it passes. What are you going to do, vote Conservative?
I admire Mr. Geist greatly working within the system to reform it, but when the government legislates against its citizens, I argue every citizen has a civic responsibility to disobey. Copyright at confederation was 28 years (renewable for an extra 14). Now it is the author’s life (avg. 83 years in Canada) plus 75 years. This 158 years is unfairly short and needs extension and extreme measures to protect it, apparently. I think that’s a great idea. Make it draconian so everyone disregards it entirely, as we generally do already. Let them destroy any technology under their thumb, so everyone will use technologies they can’t. It’s the only thing that will stop the flow of money to companies interfering with governance.
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wnd lubbying for copyright that gains any foreign money.
how does 75 year copyright benefit society……it doesnt
50 years didnt
end lobbying….ugh cheap chinese keyboard …all i can afford cause i cant afford better(darn keys rubbed off)
copyright is one reason
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Money in pockets. It will continue to flow into the pockets of the puppets until one is finally successful. The whole Guilbeault debacle is a good demonstration of how corrupt this system is. He was called out over and over again for having no actual clue about what he was puppeting for. He spouted the words of his puppet master without even understanding what they meant. He may as well have been speaking in a language that he had no understanding of given how much of the crap he was spewing that he completely misunderstood.
That was a very clear cut picture of money in the pockets of the puppets.
And it will continue to happen over and over and over again, until we are actually too worn down to fight it.
I’ve admittedly been fearing another redux of the copyright fight of 2005. There’s been so many rehashes of that fight that I’m beginning to lose track at this point. There’s Bill C-60 and Lawful Access, Bill C-61 and Lawful Access (again), Harper’s multiple copyright reform attempts, the attempted three strikes law, the site blocking attempt of 2018, the outright War on the Open Internet, and now there is the possibility of the War on the Open Internet 2 along with Site Blocking attempt 2. I’m sure I’m missing a lot in that list too. The fact that we’ll very easily find ourselves fighting these same battles yet again in (possibly) 2022 is just asinine at this point.
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