LibertyVoice

Howard Knopf provides his take on why SOCAN wanted to keep its copyright submission secret.  The key issue - retroactive legislative reform.

The government has now completed posting all the submissions it received during the copyright consultation (I'll be posting a final summary shortly).  Interestingly, the final submission to be posted was from SOCAN, but it came with some controversy.  Sources say that SOCAN requested that its submission not be posted online.  The terms of the consultation clearly indicated that all submissions would be posted, so it is difficult to identify the grounds for non-disclosure.  Ultimately, the government posted access to the submission, though not the submission itself.  This means that anyone can obtain a PDF copy of the submission via email, but it will not be searchable like every other submission.  Note that this also raises privacy concerns as interested Canadians are required to provide personal information in order to obtain a copy of the SOCAN document, creating a list of everyone who has requested a copy.

As for the substance of the submission, it is the usual laundry list of demands including anti-circumvention legislation, copyright term extension, making available right, notice-and-takedown, broadening of the private copying levy, and no further exceptions.  The submission includes some indirect criticism of Industry Canada and an industry-focused approach to copyright reform.  SOCAN criticizes Bill C-61, expressing a preference for the C-60 approach to the making available right.  It also argues that the Standing Committee on Canadian Heritage should have sole responsibility for considering a copyright reform bill.  This recommendation suggests that it is less than comfortable with Industry Minister Tony Clement and the Industry Committee, despite the fact that the Copyright Act clearly grants the Minister of Industry responsibility for copyright.

Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) I wrote for the Hill Times on the lessons that can be drawn from this summer's copyright consultation. The piece appears as part of a special section on copyright that included an interview with Industry Minister Tony Clement, Charlie Angus, Howard Knopf, Pina D'Agostino, and Simon Doyle (amont others). I note the government is still in the midst of posting all the submissions, but with thousands now online, it is not too early to begin drawing some lessons. 

What does the consultation teach us?  There are at least eight conclusions of note:

1.    Copyright policy has gone mainstream.  A Canadian government last consulted the public on copyright in 2001. That consultation generated approximately 700 responses, which at the time was regarded as a significant participation rate.  The 2009 consultation - with over 8,000 submissions, two packed townhalls, nearly a dozen roundtables, thousands of comments in an online discussion forum, and hundreds of news articles, blog postings, and tweets - demonstrated that Canadians care deeply about copyright and are determined to have their views reflected in government policy.  When a copyright bill is unveiled, Canadians will be paying close attention.

2.    There is support for implementing the World Intellectual Property Organization's Internet Treaties, but on Canadian terms.  Canada signed the WIPO treaties over a decade ago and many Canadians believe that we should implement them.  However, a consistent theme throughout the consultation was the need for Canada to take full advantage of the flexibility within the treaties by granting new protections to the copyright industries while also preserving consumer rights.  This was most commonly articulated with the recommendation that new legal protections for digital locks be linked to cases of actual infringement.

3.    Groups from across the spectrum support fair dealing reform.  Fair dealing emerged as one of the most discussed issues with near universal agreement that it is in need of reform.  The divide is really over which approach to take.  Many groups called for a flexible approach that builds on current Canadian law by opening door to additional categories of fair dealing (the "such as" approach).  Other recommended adopting narrow, specific reforms including new exceptions for parody and satire.

4.    Canadians want to modernize copyright law to reflect common consumer uses.  Thousands of Canadians agreed with the notion of updating copyright law by ensuring that the law legalizes common activities such as recording television shows, format shifting content between devices, interacting with electronic books, or engaging in remixing of content.  Canadians are comfortable with technology and expect that the law should keep pace with reasonable uses.  Indeed, even the Canadian Radio-television and Telecommunications Commission posted a submission calling for the formal legalization of some of these activities.

5.    Ensuring creators get paid is essential.  The most consistent theme from Canadian creator groups was also the simplest - creators want to be paid for their work.  That led to the articulation of two visions.  One possibility is the expansion of collective licencing, such as broadening the private copying levy to more devices and content.  Alternatively, some creators focused on market-based solutions with new business models that offer potentially lucrative opportunities.

6.    Government should lead by example.  Clement and Moore both seemed surprised by the frequent requests for the abolition of crown copyright, which grants the government exclusive rights over its own publications.  Librarians, archivists, and citizens groups all noted the importance of unfettered access to public documents, criticizing outdated notions of requiring permission to copy laws, court decisions, or other government documents.  

7.    Copyright reform is directly linked to broader digital policy issues.  Many Canadians pointed to the need for a holistic, forward-looking approach to copyright reform that acknowledges the links between copyright policy and Canada's broader digital policy.  Hundreds invoked the need for net neutrality and appropriate conduct by Internet providers.  Moreover, submissions frequently cited the need to establish appropriate intermediary liability and Internet provider safe harbour rules that provide effective, proportional remedies and recognize the critical importance of Internet access for all.

8.    Preserve Canadian choices by pursuing a Made-in-Canada solution.  Canadians are acutely aware of the copyright reform experiences in other countries and regularly pointed to other countries as examples both for what to do and what to avoid.  Further, many expressed concern that the current negotiations on an Anti-Counterfeiting Trade Agreement could undermine the government's ability to craft a much-desired Canadian-specific solution.

The Osgoode Hall Review of Law and Policy has published a compilation of copyright consultation submissions in its November 2009 issue.

The Hill Times runs a special section on copyright in its upcoming issue.  I've contributed a piece on the lessons we can draw from the copyright consultation that I'll post shortly, but in the meantime there is an important interview with Industry Minister Tony Clement.  Of particular note is his perspective on the current state of copyright law in Canada. Notwithstanding the persistent fear mongering, Clement gets it absolutely right:

"Canada and its international trading partners each have distinct copyright policies, laws and approaches for addressing the challenges and opportunities of the internet. Canada's current framework provides strong intellectual property protections and our copyright laws apply in the digital context, including on the internet. Moreover, Canada's regime for the protection and enforcement of intellectual property rights is fully consistent with its international obligations."

This statement is correct and should be repeated again and again, particularly when the U.S. ambassador to Canada and copyright lobby groups try to persuade the Canadian public otherwise.

The government continues to play catch-up with the copyright consultation submissions (my submission appeared on Friday).  It has just posted two interesting contrasting submissions: the Canadian Music Creators Coalition, actual Canadian musicians who warn against DMCA-style reforms and Don Hogarth, CRIA's communication person, who warns against people who warn against DMCA-style reforms.

Last night's 22 Minutes on CBC had a must-see segment parodying some of the arguments for Canadian copyright reform.

Last night's 22 Minutes on CBC had a must-see segment parodying some of the arguments for Canadian copyright reform.

The Canadian Film and Television Production Association's copyright consultation submission includes the following comment that warns against targeting P2P as part of copyright reform:

The CFTPA submits that it is almost a truism to state that the success of new business models for audiovisual content on the Internet depends on it remaining an open-access platform that is an effective vehicle for the distribution of authorized content. Typically, Peer to Peer (P2P) file sharing has been, and remains, one of the primary vehicles for the distribution of unauthorized audiovisual content. It therefore could be argued that content providers, including Canadian independent producers, would benefit from measures that would have the effect of targeting P2P applications.

The CFTPA notes, however, that P2P file sharing is also being used for the distribution of authorized content on the Internet. Likely the most well-known such example is the CBC's attempted distribution of its Next Great Prime Minister program using Bit Torrent. In addition, a number of independent producers are also using Bit Torrent and similar P2P applications as the primary means for distributing original digital content to their audiences…

The Association therefore considers that amendments to the Copyright Act aimed at reducing the proliferation of unauthorized copyrighted material on the Internet must be fashioned in a manner that deters infringing behaviour without either choking off legitimate forms of content distribution and/or targeting specific applications or protocols.

The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.