As the Standing Committee on Industry, Science and Technology (INDU) prepares for its first copyright review hearing next week featuring various representatives from the education community, MPs will regularly hear witnesses talk about the “copyright balance.” For Canadian copyright policy, balance has long been a foundational goal, regularly reflected in the views of both government and the courts. Yet according to a document obtained under the Access to Information Act, last fall officials at the Ministry of Canadian Heritage advised Minister Melanie Joly to abandon the emphasis on a copyright balance.

The document, an early draft of the ministerial letter to the INDU committee on the copyright review, includes the following passage:

Let’s use this opportunity to move beyond the notion of balance. A lot, probably too much, has been said in the name of balance. It usually leads to polarized positions, leaving no room for finding common ground. In an era of reconciliation, we should aim to try to change this conversation too.

It should be noted that this passage was not included in the final version of letter. In fact, the word “balance” does not appear in the final letter, presumably reflecting the common ground between two departments that bring different perspectives to a challenging policy issue.

While the rejection of balance ended up on the cutting room floor, assuming the Canadian Heritage language reflects views within the department, it represents a significant departure from the current state of Canadian copyright law. In Theberge, the Supreme Court stated:

The Copyright Act  is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator…The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.

That vision has been repeatedly affirmed by Canada’s highest court. In CCH, it stated:

As mentioned, in Théberge, supra, this Court stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. 

In SOCAN v. Bell Canada, the court linked the balance discussion to fair dealing:

CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act .  One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement.  In order to maintain the proper balance between these interests, the fair dealing provision “must not be interpreted restrictively”

The current government has also referenced balance in copyright. As part of its Copyright Board reform consultation, it noted “the Board regulates the balance of market power between rights holders and users to ensure that the value of the use of copyrighted content is fair to all parties and end-users.”

During the last copyright reform process, balance played a key role. In the Speech from the Throne, the government committed to legislative reform by stating “our Government will introduce and seek swift passage of copyright legislation that balances the needs of creators and users.” Upon introduction, the government emphasized a balanced approach:

One of the bill’s main objectives is to balance the interests of all stakeholders in the copyright regime. Achieving this balance has become increasingly complex given the exponential growth of the Internet. Canadians can obtain protected works online, sometimes through revenue-generating platforms or services, but also through free services, both legitimate and illegitimate. Our capacity to use high-quality Web services to obtain, protect and create copyrighted works is essential to our economic success and our cultural presence in the world.”

Given the focus on a copyright balance, Canadian Heritage copyright officials were effectively advising Minister Joly to shift away from the law and longstanding government policy. The position sends a warning signal, as even with its deletion from the final letter, Heritage officials may be shifting toward prioritizing the interests of a select group of stakeholders with more of a “winners and losers” approach to copyright. That could create significant political risks for Joly and suggests that Minister Navdeep Bains, the minister statutorily responsible for the Copyright Act, must stand firm to ensure that the views of all stakeholders is reflected in any reforms to Canadian law.