The Gatineau Copyright Roundtable: My Opening Remarks

As I posted earlier, I was fortunate to receive an invitation to the copyright consultation roundtable in Gatineau this evening.  Given the large group, each participant was limited to between three and five minutes.  My opening remarks were as follows:

Prepared Remarks
Copyright Consultation Roundtable, Gatineau, QC
July 29, 2009

Let me start by thanking both Ministers for the invitation and for conducting this consultation.  Last summer, I wrote a 61 part series on fixing Bill C-61 and the very first entry focused on the lack of consultation, so I think this is a great first step.

There is so much to say - preserving the public domain, modernizing the backup copy provision, removing crown copyright, sticking with notice-and-notice for ISPs, reforming the statutory damages provision by distinguishing between commercial and non-commercial infringement, to name just a few.

But I instead want to pick up on Minister Clement’s opening challenge: how do we establish reforms that last?

I think there are three keys: technological neutrality, clarity and simplification of the Act, and flexibility.  You’ve already heard from others in prior roundtables about the value of technological neutrality and the need for greater clarity so that Canadians can respect copyright by first understanding it.

Flexibility deserves some attention, however.  I’m thinking about flexibility in three respects.  First, recognize that it is flexibility that has allowed many copyright provisions to last for decades and to adapt to continually changing economic and technology environments.  We’ve always had a certain amount of flexibility in the law - it leads to a bit of back and forth in the courts most recently in the CCH case - and there is a need to preserve that with the next round of reforms.

Second, recognize that flexibility in the law works for stakeholders across the spectrum.  It is flexibility that allows the documentary film maker to complete their work, the artist or author to incorporate or build on the works of others, the student to complete their assignment, the teacher to engage lifelong learners, the researcher to explore new possibilities, and the business to launch new innovative new models.

Third, flexibility applies not only domestically but at the international level as well.  The same challenges we face on the domestic front are only magnified at the international level in treaties.  That means that those treaties - particularly the WIPO Internet treaties - are more flexible that is often appreciated.  Compliance with those treaties can be achieved in many ways and following a single model - say the U.S. DMCA - is not needed to meet the standard.

So very quickly how does these principles for long-term reforms apply to the two toughest issues of the moment? 

Fair dealing. We all recognize there is a problem with fair dealing - everyday activities like recording television shows or format shifting are not covered, artistic endeavours like parody are not covered, teaching activities not covered, and innovative businesses often can’t rely on the provision.  C-61 went in the opposite direction of what I just proposed - it was technologically specific (VHS tapes, network PVRs), very complex (12 steps to record a television show, Internet exception for education) and very specific and lacking in flexibility.  The solution - a much cleaner, simpler approach would be to add two words - “such as”- so that the current list of fair dealing would become illustrative rather than exhaustive and we would build in flexibility but not lose fairness.  That would open the door to dealing with creator issues like parody, consumer issues like time shifting and format shifting, education issues like teaching, and business innovation concerns.

Anti-circumvention. This issue is unavoidable given the WIPO treaties. I think that recent experience - whether the Amazon deletion of books from the Kindle or Bell closing its online video store show the problems with DRM and the need to guard against DRM misuse.  That said, I recognize the political reality and pressures.  But in trying to address those pressures, C-61 went in the opposite direction of what I just proposed - it was technologically specific (banning distribution of devices), very complex (long, ineffective exceptions), and lacking in flexibility (beyond WIPO requirements, all circumventions - even for fair dealing, to protect privacy, research, etc prohibited).   The solution - a cleaner, simpler, more balanced approach that links circumvention to copyright infringement as Canada did in C-60.  With that approach, we would comply with WIPO, no need for specific references to technology, no long list of exceptions, and we would still target clear cases of infringement.