Michael Geist
June 2005

Appeared in the Toronto Star, June 27, 2005

CANADIAN COPYRIGHT BILL A MISSED OPPORTUNITY 

Last week the federal government unveiled Bill C-60, its long awaited digital copyright reform bill. Ottawa kept its promises – the recording industry and Canada’s Internet service providers emerged as the big winners with each securing a lengthy list of new rights, power, and protections.

While some of those provisions strike an admirable balance (most notably the approach to ISP liability which should serve as a model for other countries), the biggest disappointment is found in the tepid provisions on digitizing access to knowledge in Canadian schools and libraries.

The bill contains provisions that are ostensibly designed to facilitate technology-based education and the digital delivery of library materials.  Unfortunately, they fall far short of their goal by hobbling any new rights with suffocating restrictions that render the provisions practically useless.

For example, Bill C-60 purports to promote Internet-based learning by permitting schools to communicate lessons featuring copyrighted materials via telecommunication.  The bill quickly restricts that new right, however, by forcing schools to destroy the lesson within 30 days of the conclusion of the course.  Moreover, schools are required to retain, for three years, records that identify the lesson as well as the dates it was placed on a tangible medium and ultimately destroyed.

The library provisions are even more onerous, turning librarians in digital locksmiths, who are ironically compelled to restrict access to knowledge in order to provide it.  The bill allows libraries and archives to provide digital copies of materials, however, in order to do so they must limit further communication or copying of the digital files and ensure that the files cannot be used for more than seven days.

We can do better.  Led by Industry Ministers from Manley to Emerson, Canada has built a world class Internet infrastructure.  We were the first country to bring Internet access to every school from coast to coast to coast, and we consistently rank in the top five of countries in terms of broadband access (though many countries, particularly in Europe, are on the verge on leaping past us).

Having spent billions constructing the infrastructure, the federal government would now do well to establish policies that leverage these new technological capabilities to foster economic growth, innovation, new research opportunities, and the dissemination of Canadian culture.

In the short term, the provisions in Bill C-60 that seek to facilitate knowledge distribution through digital networks should be amended by removing the restrictions that have been placed on educational institutions and libraries.   Such an approach would better ensure that all Canadians benefit from greater access to educational materials and life learning opportunities.

Even with those amendments, Canada will still need to institute additional reforms to fully leverage the Internet’s potential.  Indeed, other countries are already moving in that direction.  Spurred by Google’s plans to work with the world’s leading research libraries to digitize millions of books, the European Union has pledged nearly C$150 million to digitize all books from Europe’s 20 leading libraries.

As I suggested earlier this year, Canada could set an even more ambitious yet attainable goal – the digitization of every Canadian book, government document, and court case ever published. The public would benefit from unrestricted access to works in the public domain along with more limited access to other work, all without the need to seek any prior permission.  Authors would still enjoy copyright protection in their work and would frequently find that greater access leads to increased commercial success.

Canada would also do well to move away from the confining “fair dealing” approach that limits uses to prescribed categories such as research or private study, and instead adopt the more flexible fair use model found in the United States that is not so limited.  While the Canadian Supreme Court has emphasized the importance of a broad and liberal interpretation to fair dealing, the approach still suffers from a relatively rigid categorization of exceptions.  The United States does not feature such limitations in its copyright law, thereby encouraging innovative, fair uses of existing work. 

Canada recognized the benefits of a fair use system in a landmark policy paper in the 1980s, yet failed to introduce legislation to implement the recommendation.  That failure may leave Canada behind once again, since countries such as Australia are currently contemplating reforms to their fair dealing provisions.

Ottawa could also actively support the public domain, recognizing that Canadian authors have a long history of building on prior work through what Margaret Atwood once referred to as acts of literary “reclamation.” A robust public domain does more than just provide creators with source material for future work -- it also has the potential to support Canada’s commercial publishing interests. 

For example, consider that the 2005 winner of CBC’s Canada Reads contest was Rockbound, a book published in 1928 by its author Frank Parker Day, who died in 1950.  Rockbound is now in the public domain, yet the University of Toronto Press stands to generate substantial new income that can be used to support other authors from publishing and selling the surprise best seller. 

Indeed, while copyright is frequently characterized as a battle between creator and user interests, policies such as these that seize technology and Internet opportunities generate benefits for all constituencies including greater exposure and income for creators, increased access to knowledge for users, and economic growth for the broader Canadian economy.

The most disheartening aspect of Bill C-60 is that there is so little in it that unifies technology with culture and education to the benefit of all.  Rather, the potential of the Internet is viewed as a threat, leading to legislative provisions that will leave Canada looking on enviously at other countries that courageously put the public interest first.

After introducing Bill C-60 in the House of Commons last week, Canadian Heritage Minister Liza Frulla proceeded to conduct an interview at the venue she undoubtedly thought best reflected the priorities of the legislation -- a nearby HMV music store.  While music is important, it is only when government leaders conduct such interviews at schools, libraries, and research labs that we will know that Canadian copyright policy is headed in the right direction.


Michael Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist@uottawa.ca and is on-line at www.michaelgeist.ca.

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