LibertyVoice

With a copyright bill only weeks away, thousands of Canadians are again speaking out for a fair, balanced approach.  The public interest in copyright has predictably led to mischaracterizations of fair copyright as some claim that it is really about wanting everything for free or about opposing copyright reform.  This increasingly leads to a blame the user mentality – the award-winning Vancouver Film School video on DRM and the Amazon Kindle incident from last summer discussed in yesterday's post is labeled as "ridiculous fear-mongering" (yet for years rights holders opened every movie with this film) or users are said to ignore creator concerns with a "gimme" attitude (yet the Writers Union recently urged its members to lobby MPs by claiming that flexible fair dealing would legalize theft). 

The reality is that inflammatory and inaccurate rhetoric can be found on both creator and consumer-focused sites. There are undoubtedly some who use fair copyright to justify obvious cases of infringement, just as there are those that use copyright reform to preserve outdated business models or to guard against uses that the Supreme Court of Canada would surely view as fair dealing. Even a cursory search for online discussion demonstrates that claims that "sensationalist campaigning" on Canadian copyright is primarily found on sites such as mine are simply wrong. 

So yet again in an effort to separate fact from fiction, here is my submission to the copyright consultation from last summer.  It doesn't call for everything to be free, it calls for WIPO implementation, and it emphasizes that updating the law means accounting for both creator and consumer needs.  As I've discussed over the past ten days, sources say Canadian Heritage Minister James Moore has largely rejected this submission – along with thousands of other submissions calling for a fair copyright approach – but it can't hurt to reiterate what those reforms could look like.  For the many Canadians whose views may also be ignored, now is a good time to remind their MPs and the Ministers what they think the copyright bill should contain.

Copyright Consultation Submission

My name is Michael Geist.  I am a law professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Internet and E-commerce Law.  I am also a syndicated weekly columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. 

I have been actively engaged on copyright reform issues for many years.  In 2005, I edited In the Public Interest: The Future of Canadian Copyright Law, an 18-essay collection that assessed Bill C-60.  I provided extensive commentary on Bill C-61 on my blog with dozens of postings examining virtually every major provision in the bill.  I have appeared before several Parliamentary committees on copyright issues and I founded the Fair Copyright for Canada Facebook group, which grew to more than 92,000 members in the weeks following the introduction of the bill.  In the fall of 2008, I released Why Copyright?, a documentary film co-produced with Daniel Albahary that featured interviews with a wide range of Canadians on the issue of copyright reform.

I was grateful for the opportunity to participate at the copyright roundtable held in Gatineau, Quebec this past July.  This submission supplements those comments with additional specifics on recommended reforms.  My comments are provided in my personal capacity as a Canadian with a keen interest in the future of Canadian copyright.

Copyright Reform Process

Before addressing the consultation questions, I have two comments about process.  First, thank you to Industry Minister Clement and Canadian Heritage Minister Moore for launching this consultation.  As promised, it has been fair, transparent, and accessible to all Canadians. 

Second, this consultation should be viewed as the start of an ongoing process to craft Canadian copyright law.  Once a bill is tabled, it is essential that Canadians again have the opportunity to register their views through an open, comprehensive committee process.  Moreover, Canadians should determine the shape and scope of Canadian copyright law.  International treaty negotiations, particularly the ongoing Anti-Counterfeiting Trade Agreement discussions, should not effectively pre-determine domestic reforms.  The ACTA negotiations have generated considerable concern among many Canadians and the government should demand that those negotiations be conducted in an open manner with the release of draft text for public comment.

Why does copyright matter?

The consultation’s first question is also the most personal since the answer will be different for almost everyone. 

For me, copyright matters because I am a professor and my students need access to copyrighted materials and the freedom to use those materials.  It matters because I am a researcher who needs assurance that as materials are archived they will not be locked down under digital rights management.  It matters because I am deeply concerned about privacy and fear that DRM could be harmful to my personal privacy.  It matters because I have created videos and need flexibility in the law to allow for remix and transformed works and do not want my content taken down from the Internet based on unproven claims.  It matters because I am a writer and I need certainty of access to speak freely.  It matters because I am a consumer of digital entertainment and I want the law to reasonably reflect the right to view the content on the device of my choice.  It matters because I am a parent whose children have only known life with the Internet and I want to ensure that they experience all the digital world has to offer.  It matters because I live in a city with a strong connection to the digital economy and we need forward-looking laws to allow the next generation of companies to thrive.  It matters because I am a proud Canadian who wants laws based not on external political pressure, but rather on the best interest of millions of Canadians.

How to remain relevant?

Developing copyright law principles that remain relevant years from now is unquestionably a difficult challenge.  With references to VHS tapes and the decision to block network-based PVR services, Bill C-61 was outdated the moment it was introduced. In order to introduce legislation that will stand the test of time, the government needs a principle-based, forward-looking approach.  I would argue that there are four essential ingredients.

First, copyright law should strive for balance between creator rights and users’ rights.  If the law tilts too far in one direction, the other side is virtually guaranteed to put the issue of reform back on the table and the changes do not last. 

Second, the law must be technologically neutral.  Copyright has proven remarkably resilient over the decades in large measure because it states broad principles about the scope and limits of protection.  If copyright veers too far toward specific technologies by mandating new protection for specific business models or technological innovations, those rules risk being overtaken as the technologies and marketplace evolve.

Third, the law should strive for simplification and clarity.  Copyright may once have been a niche issue understood by a small number of experts, yet today it affects the daily lives of millions of Canadians.  If Canadians are to respect the law, they must first understand it.  When Bill C-61 proposed a 12-part test to determine whether recording a television program was legal, it rendered the law far too complex for the average person.

Fourth, the law should embrace flexibility, which has allowed many copyright provisions to adapt to continually changing economic and technology environments. Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary film makers, musicians, teachers, researchers, businesses, or consumers.

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 – such as the U.S. DMCA – is not needed to meet the standard.

What to do?

The final three consultation questions really ask the same thing with slightly altered perspectives – what should we do to foster innovation and creativity, competition and investment, and to position the country as a leader in the digital world.  At its heart, each of these questions is asking for comments on proposed reforms that are forward-looking and ensure that the goals of innovation, creativity, and marketplace success are met.  While it is possible to answer each individually, there is considerable overlap.  For example, a more flexible fair dealing provision has benefits for innovation, for creativity, for competition, and for the digital economy. The same is true for anti-circumvention provisions that retain the copyright balance.

In an ideal world, we might start from scratch to create a law that truly makes sense in the current environment.  We are not starting from scratch, however.  The reality is that there is an international context with treaties we have ratified (Berne Convention) and treaties we have signed but not yet implemented ((WIPO Internet treaties). Moreover, there is a domestic context, with Bill C-61 surely used as reference point. 

My response focuses on seven areas of copyright reform.

1.    Flexible Fair Dealing

Expand the fair dealing provision by adding flexibility through the addition of “such as” to the current wording. 

Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent).  Fair use does not mean free use – rather, it means that there is a balance that allows certain uses of works without permission so long as the use is fair.  The Supreme Court of Canada has already ruled that Canada’s fair dealing provision must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting, and review) that renders many everyday activities illegal.  The ideal remedy to address other categories such as parody, time shifting, and device shifting is to make the current list of categories illustrative rather than exhaustive.  This can be best achieved by adding the words “such as” to the current provision.  This would be a clean, technology-neutral approach.

In the event that specific new fair dealing exceptions are required (either directly within the statute or to provide guidance on the new flexible provision), key exceptions to address include:

1. Parody and Satire
2. Time Shifting
3. Format Shifting
4. Music Shifting
5. Teaching

2.    The Anti-Circumvention Provisions

Anti-circumvention provisions must be directly linked to copyright infringement. 

The anti-circumvention provisions have been by far the most controversial element of recent attempts at Canadian copyright reform.  The experience in the United States, where anti-circumvention provisions effectively trump fair use rights, provides the paradigm example of what not do to.  It should only be a violation of the law to circumvent a technological protection measure (TPM) if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing, private copying, or any other legal purposes.  This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the World Intellectual Property Organization’s Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the DMCA.

The need for the link between anti-circumvention for the purpose of copyright infringement is crucial since to do otherwise goes far beyond what is needed to comply with the WIPO Internet treaties and ultimately has the effect of eviscerating fair dealing in the digital environment. 

Indeed, using a C-61 style approach to anti-circumvention necessitates a myriad of exceptions.  These include exceptions for:

• Circumvention of cell phone locks
• Fair Dealing
• Court cases, laws, and government documents
• Personal uses
• Digital archiving
• Teaching
• Protection of Minors
• Software filtering programs
• Obsolete or broken digital locks
• Non-infringing access
• Research
• Interoperability
• Privacy
• Perceptual disabilities

Many of these exceptions were missing from C-61.  Should the government decide to re-introduce the C-61, exception-based approach to anti-circumvention, these additional exceptions should be included.

No ban on devices that can be used to circumvent a TPM, provided that it has non-infringing uses. 

Canada should not ban devices that can be used to circumvent a TPM.  The reason is obvious – if Canadians cannot access the tools necessary to exercise their user rights under the Copyright Act, those rights are effectively extinguished.  If organizations are permitted to use TPMs to lock down content that threatens fair dealing, Canadians should have the right to access and use technologies that restores the copyright balance.

From a WIPO ratification perspective, there is no requirement for this provision.  Indeed, Bill C-60 provided a model that did not touch devices themselves, choosing instead to target conduct involving circumvention for the purposes of copyright infringement.  By removing the unnecessary ban on devices that can be used to circumvent, there is a greater likelihood that Canadians would have access to programs that could be used to retain their existing rights and protect their privacy.

Create authorized circumventers

The removal of the provisions that target the legality of circumvention devices is one way to help ensure that the law does not eliminate basic copyright user rights.  There are other approaches, however, that can be introduced in tandem with that change. New Zealand's recent copyright law reforms introduced the concept of "qualified circumventers." The law grants special rights to trusted third parties who are permitted to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.  The current list of qualified circumventers includes librarians, archivists, and educational institutions. This approach rightly recognizes that many people will be unable to effectively use the exceptions inserted into the law.  By creating a class of trusted circumventers, the law creates at least one mechanism to ensure that users retain their existing copyright rights.

Establish a Positive Requirement to Unlock for Exceptions/Right of Access

Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights come responsibilities."  In this case, if companies obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world, which often identify courts, tribunals or mediators as the source to ensure that rights holders do not use DRM to eliminate user rights.

3.    The Intermediary Provisions

Establish a legal safe harbour for Internet intermediaries supported by a “notice and notice” takedown system

The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world.  Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats.  Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners.  The ideal Canadian model would be a “notice and notice” system that has been used successfully for many years on an informal basis.

Establish a Useful Provision for ILTs

The inclusion of "Information Location Tool Providers" (ie. search engines) provisions in Bill C-61 was a bit of a surprise. By far the most problematic aspect of the ILT provisions was the creation of a notice-and-takedown system for search engines.  Unlike ISPs – who were subject to the more-balanced notice-and-notice approach – ILTs were effectively subject to a notice-and-takedown system without any of the counter-notification or balancing provisions contained in the U.S. DMCA. Bill C-61 created a parallel notice and takedown system for ILTs since section 41.27(2)(f) limited the availability of the safe harbour to instances where no notification of copyright infringement has been received.  This would have effectively forced ILTs to remove content upon notification since failure to do so risked potential liability. 
While a notice-and-takedown approach for ILTs was bad enough, it was made worse by the absence of any balancing provisions.  For example, the U.S. DMCA includes a "counter-notification" provision that allows for the re-posting of content that has been taken down.  There was no such provision in C-61, meaning that the ILT provisions were ripe for abuse. There are benefits to creating an ILT safe harbour, but they should not incorporate a notice-and-takedown requirement.

Reject A Three-Strikes and You’re Out System

Several countries have begun to consider establishing a “three-strikes and you’re out system” that removes Internet access based on unproven allegations of infringement. Attempts at three-strikes systems have struck out in virtually every country where they have been raised. Internet access is far too important to establish a system that would cut off access based on unproven allegations of infringement.  The proposals raise a host of due process and constitutional concerns and should be rejected as a possible alternative for Canada.

4.    Modernize the Law

Modernize the backup copy provision

As part of a major set of copyright reforms in 1988, Canadian copyright law was amended to allow for the making of backup copies of computer programs. In 1988, backing up digital data meant backing up software programs.  Today, digital data includes CDs, DVDs, and video games.  All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional.  From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment. "Modernizing" copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

Rationalize the Statutory Damages Provision

Canada is one of the only countries in the world to have a statutory damages provision.  It creates the prospect of massive liability – up to $20,000 per infringement – without any evidence of actual loss.  This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for several peer-to-peer file sharing defendants and leaves many with little option but onerous settlement.  Before Canada faces similar developments, we should amend the statutory damages provision by clarifying that it only applies in cases of commercial gain. Moreover, the provision should not apply where the infringer had a good faith belief that the alleged infringement was fair dealing.

5.    Enhance the Public Domain

Do not harm the public domain with copyright term extension

While some countries have extended the term of copyright beyond the Berne Convention requirement of life of the author plus 50 years, there is no compelling reason – either from an economic, creativity, or innovation perspective – to extend the term.  Indeed, there are strong arguments that harming the public domain would have the opposite effect. The government should make a clear commitment not to extend any further.  Moreover, it should identify a presumed public domain date (based on birth date and reasonable life expectancy) to facilitate digitization of Canadian heritage.

Abolish Crown Copyright

Dating back to the 1700s, crown copyright reflects a centuries-old perspective that the government ought to control the public's ability to use official documents.  Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission.  While permission is often granted, it is not automatic. The Canadian approach stands in sharp contrast to the situation in the U.S. where the federal government does not hold copyright over work created by an officer or employee as part of that person's official duties.  Government reports, court cases, and Congressional transcripts can therefore be freely used and published.

The existence of crown copyright affects both the print and audio-visual worlds and is increasingly viewed as a barrier to Canadian film making, political advocacy, and educational publishing. Beyond the policy reasons for abandoning crown copyright, there are financial reasons for reforms.  The federal crown copyright system costs taxpayers hundreds of thousands of dollars.  Documents from Public Works and Government Services Canada, which administers the crown copyright system, reveal that in the 2006-7 fiscal year, crown copyright licensing generated less than $7,000 in revenue, yet the system cost over $200,000 to administer. In most instances, Canadians obtain little return for this investment.  Ninety-five percent of crown copyright requests are approved, with requests ranging from archival photos to copies of the Copyright Act.

Given the significant costs associated with a program that does more harm than good, any new copyright reform should eliminate crown copyright and adopt in its place a presumption that government materials belong to the public domain to be freely used without prior permission or compensation.

6.    Effective Library and Education Provisions

Do Not Implement An Internet Exception for Education

One of the most controversial aspects of Bill C-61 was the inclusion of special educational Internet exception.  The provision split the education community, generating support from some education groups and opposition from others. I do not believe that the exception is either necessary or equitable.  The law already permits many educational uses of Internet materials without compensation. The educational Internet exception should be dropped in favour of a more flexible fair dealing provision discussed above that treats educators, creators, and all Canadians in an equitable manner.

In fact, the Internet exception was more than just unnecessary – it was harmful.  First, rather than improving access, the exception would have encouraged people to take content offline or to erect barriers that limit access (including DRM).  Many website owners who may be entirely comfortable with non-commercial or limited educational use of their materials, may object to a new law that grants the education community unfettered (and uncompensated) usage rights.  Accordingly, many sites may opt out of the exception by making their work unavailable to everyone.  This is obviously a lose-lose scenario that arises directly out of the exception.

Second, the implication of the exception was that using publicly-available Internet materials is not permitted unless one has prior authorization or qualifies for the exception.  This suggests that millions of Canadians outside the education system who use Internet-based materials are somehow violating the law.  This is simply wrong – an enormous amount of online content is intended for public use or qualifies as fair dealing – and to imply otherwise sends the wrong message.  Indeed, many of the concerns expressed by the education community apply equally to other groups who do not qualify for the exception. Third, the exception may have violated international law.  There are doubts that the provision complied with Canada’s existing obligations under the Berne Convention, the world's foremost international copyright treaty.  Given that the exception raised these real harms, it should scrapped by moving toward a flexible fair dealing provision.

Library Provisions Should Rely on Fair Dealing

E-reserves are the electronic equivalent of the traditional library book reserves – books or materials that a professor places on reserve in the library so that it is accessible to the entire class. In the aftermath of the LSUC v. CCH Supreme Court of Canada decision, a growing number of universities began to establish (or consider establishing) e-reserve policies based on fair dealing. Most libraries had traditionally sought licenses for the use of electronic copies of these additional research and reading materials, yet the frustration of lengthy delays and the CCH case spurred many to think about a fair dealing based approach.  For example, the University of Calgary has established an e-reserve policy that links to accessible online content and scans print material that qualifies as fair dealing. The move toward fair dealing based e-reserve policies have been gaining momentum in Canada, yet Bill C-61 tried to steer libraries in a different direction as the bill includes a specific provision that promotes a license-based approach.  New legislation should reverse that course by emphasizing the benefits of a fair dealing model.

7.    Contract and Copyright

The use of contractual terms to effectively void privacy protection or basic copyright user rights has become all too common with cases such as the Sony rootkit providing a classic example of how contractual terms that quash important legal rights are buried beneath the "I agree" button.

Governments are understandably loath to intervene in privately negotiated contracts.  However, not every contract or contractual term is enforceable – there are certain terms (and certain contracts) which run counter to important public policy goals that will often be rendered unenforceable by a sympathetic court.  On this particular issue, we should not wait for the courts to intervene.  Rather, Canada should identify the core protections and policies that underlie the copyright balance and establish rules that prohibit attempts to "contract out" of such terms.

Months of public debate over the future of Canadian copyright law were quietly decided earlier this week, when sources say the Prime Minister's Office reached a verdict over the direction of the next copyright bill.  The PMO was forced to make the call after Canadian Heritage Minister James Moore and Industry Minister Tony Clement were unable to reach consensus on the broad framework of a new bill.  As I reported last week, Moore has argued for a virtual repeat of Bill C-61, with strong digital locks provisions similar to those found in the U.S. Digital Millennium Copyright Act and a rejection of a flexible fair dealing approach. Consistent with earlier comments on the need for a forward-looking, flexible approach, Clement argued for changes from C-61.

With mounting pressure from the U.S. – there have repeated meetings with senior U.S. officials in recent weeks – the PMO sided squarely with Moore's vision of a U.S.-style copyright law.  The detailed provisions will be negotiated over the coming weeks by the respective departments, but they now have their marching orders of completing a bill that will satisfy the U.S. that comes complete with tough anti-circumvention rules and no flexible fair dealing provision. 

The bill is not expected until June, but it will have dramatic repercussions once introduced.  First, the bill represents a stunning reversal from the government's seeming shift away from C-61 and its commitment to a bill based on the national copyright consultation.  Instead, the consultation appears to have been little more than theatre, with the PMO and Moore choosing to dismiss public opinion. Second, after adopting distinctly pro-consumer positions on other issues, Moore has abandoned that approach with support for what may become the most anti-consumer copyright bill in Canadian history.  Third, the bill will immediately impact the Canadian position at the ACTA and CETA negotiations, where the bill's provisions on anti-circumvention and ISP liability will effectively become the Canadian delegation position.

For those wondering what can be done, my only answer is to speak out now. Write a paper letter to your Member of Parliament and send copies to the Prime Minister, Moore, Clement and Liberal leader Michael Ignatieff.  No stamp is required – be sure to include your home address and send it to the House of Commons, Ottawa, ON, K1A 0A6.  Once that is done, join the Facebook group and the Facebook page and be sure to ask others do the same. You may spoken out before, but your voice is needed yet again.

The Wire Report reports on the government's reaction to last summer's copyright consultation.  An Industry Canada spokesperson says: "given the unprecedented level of participation, and the many important views and opinions received, the copyright consultations are considered a tremendous success. As Industry Canada considers future consultation processes, we will draw on the success and lessons we learned during the copyright consultations."

Since his appointment as Canadian Heritage minister in 2008, James Moore has carefully crafted an image as "Canada's iPod Minister." Young, bilingual, and tech-savvy, Moore has expressed regular support for the benefits of the Internet and is always ready with a quick "tweet" for his many followers.  Yet as my op-ed in the Hill Times notes (HT version (sub required), homepage version), according to the scuttlebutt throughout the copyright community, Moore may be less iPod and more iPadlock. As the government readies its much-anticipated copyright package, Moore is said to be pressing for a virtual repeat of Bill C-61, the most anti-consumer copyright proposal in Canadian history.

Moore's about-face on copyright will come as a surprise to those who have heard his enthusiasm for new technology and the Internet.  In June 2009, Moore told Industry Minister Tony Clement's Digital Economy conference that "the old way of doing things is over.  These things are all now one. And it's great. And it's never been better. And we need to be enthusiastic and embrace this things."

Those comments were quickly followed by the national copyright consultation that generated thousands of responses, the majority of which called on the government to abandon the C-61 approach in favour of copyright rules that struck a better balance between the interests of creators and consumers.

In recent months, Moore seemed to support a more consumer friendly approach.  When NDP MP Charlie Angus introduced a private member's bill last month to extend the private copying levy to devices such as iPods, Moore was quick to lambaste the proposal as the iTax.  Heralded as an "iPod Freedom Fighter," Moore proclaimed the bill a serious threat to consumers.

Days later, Moore reserved judgment on the Canadian Radio-television and Telecommunications broadcast policy decision that opened the door to a new fee-for-carriage system for local broadcast signals.  Once again, Moore adopted a pro-consumer position, indicating that his view on the decision would depend upon its consumer impact.

Moore's posturing won him few friends in the Canadian cultural community, with some suggesting that the Canadian Heritage minister should spend less time focusing on his iPod and more on Canadian artists.

The copyright bill may still be several weeks away, but reintroducing Bill C-61 with only minor tweaks – a bit more flexibility for recording television shows or transferring content from one format to another – would leave in place the core provisions of the bill that generated widespread discontent.  These include U.S.-style legal protection for digital locks known as anti-circumvention legislation and a rejection of the flexible fair dealing approach that attracted considerable support during the copyright consultation as a balanced, technology-neutral solution.

What is most surprising with this path is that there are solutions that would toughen Canadian copyright law and provide the flexibility that business, consumers, and creators say they need.

For example, virtually everyone agrees that Canada should implement the World Intellectual Property Organization's Internet treaties. Yet there is considerable flexibility in how those treaties are implemented. Indeed, just last week India, home to a thriving movie and technology market, tabled legislation designed to bring it into conformity with those treaties. The Indian approach – much like the earlier Canadian Bill C-60 – sought to maintain the copyright balance that exists offline in the online world.

Similarly, a growing number of countries – led by the United States – have adopted flexible fair dealing or fair use provisions that benefit creators, business, and consumers.  Flexible fair dealing based on existing Canadian jurisprudence would ensure a fair-for-all, not a free-for-all.

Last week, the Standing Committee on Canadian Heritage heard about the need to target bad actors.  Canadian law has many tools to do so, with major record labels having pressured some peer-to-peer sites offline (such as QuebecTorrent) and gearing up to challenge others in Canadian courts (isoHunt).

Recent experience indicates that the copyright bill isn't final until tabled, but after spending the summer of 2008 fighting Bill C-61 and the summer of 2009 revisiting copyright reform as part of the national consultation, copyright is unquestionably on the public radar screen.  Canadians had been promised a forward-looking, technology neutral approach, but they may soon find that someone has hit the delete button on those promises.  I'll be posting more in the coming days about what people can do – in the short term, I've launched a new Fair Copyright for Canada Facebook page (distinct from the group) that can be used to keep current and learn more about what can be done as events unfold.

Toronto IP lawyer Richard Owens has posted an analysis of last summer's national copyright consultation in which he concludes that "if the aim of the Consultation was to canvass public opinion and discern trends, it failed." Given that the copyright consultation attracted greater participation than virtually any government consultation effort in recent memory, it is hard to see how it can be deemed a failure from a participation and public opinion perspective.  In fact, the government itself clearly recognizes the exceptional participation last summer.  Last week in the House of Commons, Conservative MP Cheryl Gallant noted:

The participation was unprecedented and we welcomed the comments of rights holders, users, intermediaries and everyday Canadians. We know that Canadians are concerned with copyright and its implications in our increasingly digital environment. This was demonstrated by the thousands of Canadians who took the time to participate in one way or another.

Owens arguments centre on the following four issues:

1. The majority of the responses were form letters and those should be discounted.
2. The majority of form letters were generated from a single website – CCER – that had the potential to "game" the system.
3. Many of the submissions were not well-informed.
4. The demographics of the consultation participants was not sufficiently representative of the Canadian public.

Form Letters

It is true that the majority of the 8,300 submissions were form letters.  While a form letter requires less effort than a detailed original submission (though not much less than some of the two sentence Access Copyright inspired submissions that simply say creators deserve to be paid), they still represent a canvassing of the public and the desire of someone to ensure that their voice is heard on the issue.  In fact, groups on both sides of the copyright debate offered form letters to their members or people they thought might be willing to participate.  The recording industry had a form letter (only 8 people took the time to submit it), the publishing industry had a form letter (17 submitted it), and supporters of the private copying levy had a form letter (22 submitted it).  Meanwhile, Access Copyright warned its members that "there is a danger your voices as Canadian creators and publishers will be drowned out by the chatter."  It urged members to post their comments that creators deserve to paid.  By far the most popular form letter came through the CCER site – by my count 5,025 submissions. 

We could group all the form letters as their own category (the government essentially did that by giving each letter a single post followed by the names of the signatories).  In that case, the "battle of forms" has a pretty clear outcome.  Thousands took the time to express their concern with C-61-style reforms, while a surprisingly small number of people employed or working in the music and publishing industries did so.  Contrary to Owens' contention, form letters provide a solid gauge of the public mood on an issue, particularly those with familiarity but not expertise.

CCER

Owens is also troubled by the fact that the single largest source of submissions came from a site operated by the Canadian Coalition of Electronic Rights, a group that represents modchip makers, as well as the involvement of the Torrent Freak site, which featured several posts on the consultation (including one of mine).  The concern with Torrent Freak is certainly misplaced as it is widely used as a source of original reporting on digital issues.  Indeed, Barry Sookman regularly references their articles in his Twitter postings (recent examples here and here).

As for CCER, Owens suggests that the site may have helped "game" the results by allowing anyone – including non-Canadians – to submit.  Yet according to site operators, forms were only submitted by those who included a valid Canadian address.  While it is certainly possible that a few people might submit using a fake Canadian address, it seems very unlikely that this would be a large number.  In fact, there is little reason for non-Canadians to take an active interest in Canadian copyright reform and suggestions that they hope to benefit from the ongoing existence of Canadian-based torrent trackers ignores the reality that Europe is home to far more torrent tracker sites than Canada.

Lack of Expertise

Owens raises concerns about the lack of expertise of many of the submissions, arguing that many are "poorly informed." As examples, he points to submissions that express concern about lawsuits or U.S. pressure.  While he might have pointed instead to submissions or articles claiming Canada is a piracy haven (such as this week's Canadian Business article), the claim that the broader public just does not understand copyright has been made before, chiefly by IP lawyers from large law firms.  It formed the gist of Barry Sookman's critique of the Fair Copyright for Canada Facebook group and lies at the heart of claims that "endless consultation is useless."

It is true that there are varying degrees of legal expertise within the Canadian public.  Yet surely someone should not require a law degree in order to participate in public policy.  The responses from those only passively familiar with the specifics of copyright yet concerned enough to participate in the consultation, speaks volumes about the interest the issue has generated among Canadians.  Not everyone may be an expert on the issue, but many know enough to know that they are troubled by the implications previous bills or the pressures for certain reforms.

With respect to the value of online activism, we will have to agree to disagree.  Evgeny Morozov (who is a he, not a she) is a colleague of mine on the Open Society Institute Information Program Sub-Board and I respect his views.  However, the Canadian experience – whether on copyright or protests against prorogation – is that the Internet can be a critically important tool in ensuring that more voices are heard in the policy or political process.

Demographics

Owens final concern involves the lack of women and francophones participating in the consultation.  The gender imbalance within the copyright reform issue has been considered in greater detail by Laura Murray and is a real issue.  As for the lack of francophones, perhaps it reflects the fact that francophones are not nearly as concerned with creator-focused copyright as some suggest (or perhaps many decided they wanted to do something else with their summer). 

Regardless, there is no reason to suggest that these demographics somehow invalidate the voices of those who did participate.  As Woody Allen says, "eighty percent of success is showing up."  Thousands of Canadians did show up this past summer to speak out on copyright and attempts to paint that participation as an abuse of the system or invalid are not only disrespectful to the many people who actively and in good faith engaged in a government-sponsored policy process, they are simply wrong.

The copyright consultation concluded last fall and it seems worth reminding Canadian Heritage Minister James Moore and Industry Minister Tony Clement what Canadians had to say when they asked for their opinion on copyright reform.  It has taken some time to calculate the final numbers as the government conducted a review to ensure that all were properly posted. There were ultimately more than 8,300 submissions – more than any government consultation in recent memory – with the overwhelming majority rejecting Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.

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.