Canadian Copyright

The national copyright consultation is down to the final five weeks and over the past week, there has been a growing number of op-eds and public commentary that provide Canadians with a good sense of what the traditional copyright lobby is pushing for as part of the consultation.  While some have expressed skepticism about the consultation process, the reality is that the risk of saying nothing is simply far too high.  Consider:

• CRIA and CMPDA lobbyist Barry Sookman, in a National Post op-ed written with Stephen Stohn, labels Canada a piracy heaven while calling for "graduated response" (the euphemism for three strikes and a user loses Internet access for a year), anti-circumvention legislation, ISP liability, notice and takedown, secondary liability for sites like the Pirate Bay, and limited fair dealing expansion rather than a more flexible approach.  The recommendations are very similar to those found in the Conference Board of Canada's plagiarized and withdrawn report.
• In a second piece, Sookman and Glen Bloom are quoted as saying the consultation isn't needed, claiming that "endless consultation is useless", that Canadian law is an embarrassment, and that we should just get on with WIPO ratification.
• ACTRA seeks an expansion of the private copying levy to other media such as iPods.
• Access Copyright warns its members that the "debate takes aim at your livelihood."

While there have been op-eds providing a counter-perspective (notably Olivier Charbonneau in Le Devoir), the picture that is emerging is precisely what CIRPA head Duncan McKie suggested on the eve of the consultation - "C-61 didn't go far enough."

There is only one way to counter this.  The roundtables have to-date been balanced and there are many submissions that express the need for a fair copyright approach.  Indeed, last week the Manitoba Music Industry Association distanced itself from CRIA in saying its members are not interested in anti-circumvention legislation.  However, the big lobbying efforts are clearly aimed at expanding C-61 by adding three-strikes and you're out as well as new levies to a Canadian DMCA. Canadians simply cannot afford to stay silent - Speak Out On Copyright today.

The Winnipeg copyright roundtable is a must-listen as it includes some notable comments from the Manitoba Music Industry Association.  After numerous presentations at the roundtable calling for expanded fair dealing (from education, researchers, and artists), the MMIA argued:

We find ourselves in the Manitoba music industry more aligned with some of the creators coalitions and independent music groups and less aligned with CRIA and the RIAA.  Our members are generally speaking are not interested in anti-circumvention laws, they are not interested in suing fans.  No one from our membership is going to go out and sue fans because they copied some of their music.  What they are interested in is finding ways of monetizing the creative content.

With the songwriters and many Canadian musicians already distancing themselves from CRIA, it is interesting to even find a provincial music industry association doing the same.

I last posted an update on the copyright consultation discussion forum on July 24, 2009.  Discussion has slowed since then, but the total number of comments is now well over 1,000.  Frances Munn provides a summary.

Discussions

Copyright and You

How do Canada’s copyright laws affect you? How should existing laws be modernized?

Tuesday August 4, 2009 (639 responses)

Over the last week, posters continued to voice their support for great consumer protection. In particular, many advocated for greater personal use protections to make copies and backups, ending the use of DRM, and expanding fair use. Further, one thread debated whether digital copying was theft while others debated whether it was fair to only prosecute those that shared files for commercial gain.

Some highlights:

• A poster argued that any new laws should comply with human rights legislation and the Constitution so as not to create a counterproductive law.
• Several writers argued that authors should be paid fairly and that creators needed a copyright law with “sharper teeth.”
• Several posters expressed frustration with the high cost of music/movies, pointing out that expensive media makes file sharing an attractive option.
• Several people argued that the Internet has given creators the means to connect directly with consumers and that the distributors and ‘middle-men’ are the ones pushing for stronger copyright laws.
• One poster proposed a fee on Internet use to compensate creators in the same way that levies were added to blank CDs.
• One person pointed out that the disabled are particularly susceptible to DRM and should be allowed circumvention exemptions.
• Another poster proposed re-writing the Copyright Act to eliminate references to specific technologies and ensure that it is up to the creator to track and investigate infringements.
• One person advocated modernizing the Copyright Act by implementing WIPO, arguing that creators needed copyright protections to earn a living. In response, one poster replied that they did not support Bill C-61 because its DRM protections would “chill” innovation. Another poster pointed out that the DMCA did not kill innovation in the United States.
• Another poster argued that consumers had no excuses for obtaining illegal copies of works. The poster said that depriving artists of their livelihood and their rights over how their creations are used “does not contribute to expanding the national culture.” In response, several people pointed out that it was too harsh to create laws that allowed corporations to bankrupt families and teenagers and that the old business model was outdated and should be changed.
• One poster argued that the term “copy” should be removed and that the focus should shift to the right to distribute and the right to profit.
• One person supported private copying rights, but argued that anyone who distributed or lent copies to another person should void their private copying exemption.
• A poster suggested shortening copyright protection to 20 years and using a “digital footprint” to tie content to the purchaser in order to trace pirated material back to the person who distributed it while also allowing the consumer to make copies for personal use.

Test of Time

Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

Tuesday August 04, 2009 (110 responses)

Over the last week, posters argued for a technologically neutral law and opposed another Bill C-61 approach.

Highlights:

• A recent poster worried about protecting him or herself from theft given the absence of laws dealing with the new economy.
• One poster argued that the old copyright model was designed during the Industrial Age to protect creators from being exploited by big distributors. The poster argued that we have now entered the Information Age where distributors are no longer needed, and that the government should not enact laws to protect big industries from individuals. The poster said that freely sharing ideas should not be illegal, and that copyright should be directed at those who aim to make a profit off another person’s work.
• Another poster argued that Bill C-61 was unfairly labelled as “too American,” pointing out that it was also similar to the European, Japanese and Australian approach to copyright. The poster promoted expanding private copying while also ensuring that creators were fairly remunerated.

Innovation and Creativity

What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

Tuesday August 04, 2009 (239 responses)

Along with some criticisms of Bill C-61 and preserving an outdated business model, new posts included:

• The most recent poster argued that “intellectual property” should be renamed “intellectual monopoly” since copyright does not deal with real items of property. The poster went on to question whether having a monopoly of intellectual products benefits society as a whole.
• Another poster argued that having a monopoly on a cancer drug is more harmful to society than a monopoly on a hit song.
• One person argued that publishers and distributers make far more money than creators and that there should be a fairer system of reimbursing creators for their work.
• A writer argued that authors needed more copyright protections in order to make a livelihood.
• Another poster proposed a system where users pay for file sharing, arguing that they would be willing to pay for the right to download.
• One poster argued that copyright should operate more like patent laws with copyrighted works entering into the public domain after a period of time.
• Another poster advocated for educational exemptions for teachers and students.

Competition and Investment

What sorts of copyright changes do you believe would best foster competition and investment in Canada?

Tuesday August 04, 2009 (32 responses)

There was little change in this discussion over the last week. One poster argued for an end to Crown Copyright, pointing out that Canadians pay for government documents through tax dollars and should have the right to them without government permission.

Digital Economy

What kinds of changes would best position Canada as a leader in the global, digital economy?

Tuesday August 04, 2009 (230 responses)

• One person proposed a ‘notice and notice’ strategy over ‘notice and takedown.’
• One poster argued that enforcing laws will be a problem and instead proposed “monetizing the networks” in a payment scheme similar to cable TV.
• One poster began a debate when they came out strongly against P2P networks like The Pirate Bay, arguing that downloading for ‘personal use’ is the same as stealing from the artist.
• Another thread debated whether or not P2P music downloads translate to lost revenue or whether P2P serves as a way to sample music before buying it.
• One poster argued that the new business model in the music industry has shifted towards giving away music for free over the Internet and making money off merchandise and concerts.

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.