Michael Geist
March 2005

Appeared in the Toronto Star, March 28, 2005

CANADA REJECTS ONE-SIDED APPROACH TO COPYRIGHT REFORM

Last spring the Canadian Heritage Standing Committee, a parliamentary committee chaired by Toronto MP Sarmite Bulte, conducted a series of hearings on copyright reform.  Listening to a steady stream of rights holder groups, the committee virtually ignored the interests of users, researchers, educators, and the broader public interest as it proceeded to issue an embarrassing report featuring a series of recommendations devoid of any sense of balance.

The report was obviously applauded by rights holders groups – the Canadian Recording Industry Association quickly issued a press release praising the report and calling for its immediate adoption -- however, in the months that followed the committee and its recommendations faced an increasing barrage of criticism.

The education community, led by provincial ministers of education, loudly protested the recommendations, while Canada’s security IT community issued a public letter warning of its danger to that budding economic sector. 

The June federal election also altered the long-term impact of the report. The committee lost many of its original members, with at least one, former Liberal MP Paul Bonwick, wasting little time in signing up as a paid lobbyist for Access Copyright, a leading copyright collective and a prime beneficiary of the report.

The new committee adopted a decidedly different tone.  Although it re-tabled the recommendations to obtain a governmental response, Marlene Catterall, the new committee chair, publicly expressed a desire to learn more from both sides about the issues.  NDP committee member Charlie Angus was even more direct, warning that “the recommendations could herald the end of the Internet as a digital intellectual commons.”

The policy reversal came full circle last week as the government released its official response to the committee report.  Setting out the immediate path for Canadian copyright reform, the government rejected virtually every recommendation and instead unveiled a plan that attempts to balance both the interests of creators and users.

While CRIA was again quick to praise the government, a closer examination of the proposals reveals a much different story:

• The committee recommended the immediate ratification of the World Intellectual Property Organization’s Internet treaties.  The government, however, announced that it plans to implement provisions found in the treaties, but will delay ratification for the moment.
• The committee recommended the establishment of a “notice and takedown” system for Internet service providers that would encourage ISPs to remove content upon receipt of an allegation of copyright infringement. The government announced that it plans to establish a more balanced “notice and notice” system that requires a court order prior to the removal of content.
• The committee recommended the creation of an extended license that would force the education community to pay millions of dollars for publicly-available Internet materials.  The government shelved this entire proposal, calling for broader consultation on the issue.
• The committee recommended reforms to photographers’ copyright, without protections for the privacy and economic interests of the general public. The government indicated that it plans to include an important exception for commissioned photographs for personal or domestic use.
• The committee cautioned against electronic delivery of interlibrary loans, suggesting that a new license might be warranted.  The government committed to an amendment to allow libraries to directly deliver certain copyrighted materials electronically.

Moreover, the government outlined its plans for anti-circumvention legislation, which establishes legal protection for the digital locks known as technical protection measures (TPMs) that are increasingly used to control digital content.  Although it is arguable that no anti-circumvention provisions are needed, the government at least demonstrated that it is determined to avoid the dangerous approach taken in the United States.

Unlike the U.S. anti-circumvention provisions found in the Digital Millennium Copyright Act, the government plans to link anti-circumvention to actual copyright infringement, pledging that “the circumvention of a TPM applied to copyright material will only be illegal if it is carried out with the objective of infringing copyright. Legitimate access, as authorized by the Copyright Act, will not be altered.”

Notwithstanding the encouraging emphasis on balance, there remains reason for concern, some disappointment, and continued caution.  There is concern that the government has committed to a new “making available” right, which, if enacted, might pave the way for a slew of new lawsuits against individual file sharers. 

Contrary to some reports, the proposed changes do not touch peer-to-peer downloading, but the government will act to ensure that unauthorized postings of copyrighted work will constitute an infringement.  Given the likelihood of new lawsuits, the government should limit the use of the provision to instances where there is evidence of intention to infringe copyright.

There is also some disappointment since although the government restored balance to the Heritage Committee’s report, it failed to outline a vision that will truly benefit individual creators and users.  For example, the government could have undertaken to eliminate the Copyright Act’s statutory damages provisions, which create an unfair benchmark of potential liability when applied to individual users.  Similarly, it could have introduced new licensing rules for Internet radio, eliminated crown copyright, expanded fair dealing, or pledged to maintain the term of copyright at the current life of the author plus fifty years.  Despite the government’s opportunity to present a bold vision of Canadian copyright, no such changes were announced.

Most importantly, there is reason for continued caution.  Last week’s government announcement was not legislation but rather merely a statement of intent.  The devil will be in the details as the copyright community awaits the actual legislation that emerges from last week’s general outline. 

With Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla sharing copyright policy responsibility, the Canadian framework encourages the development of compromise positions.  Once the legislation is introduced, however, compromise and balance will be forced to withstand the voracious array of well-funded lobby interests who will undoubtedly seek the return to a one-sided slate of reforms.  Ottawa may have presented its plan, but the copyright battle is far from over.


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.

Full Column Archive
RECENT COLUMNS	RELATED COLUMNS
New Accountability Needed For Internet Providers Toronto Star (21 March 2005)	TPMs: A Perfect Storm for Consumers Toronto Star (31 January 2005)
Keeping An Eye on a Canadian Prize Toronto Star (14 March 2005)	Time Music Industry Focused on Product Toronto Star (6 December 2004)
What Do You Want the Internet To Be? Toronto Star (7 March 2005)	Who Should Own Your Wedding Pictures Toronto Star (1 November 2004)
Let Towns, Cities Provide Cheap, Everywhere Broadband  Toronto Star (28th February 2005)	A Blueprint for a Better, and Fairer, Copyright Law Toronto Star (9 August 2004)
Music Industry Doesn't Need More Government Protection Toronto Star (21st February	Copyright Reform Needs Balanced Approach Toronto Star (14 June 2004)
Revise Privacy Law To Protect Public, Not Offenders  Toronto Star (14th February 2005)	Will Copyright Reform Chill Use of the Web Toronto Star (31 May 2004)