Oh Canada! True Patriot Love (for Thy Copyright Act Review)
Readers in Europe and around the sector may additionally have heard a few refreshingly contented murmurings lately approximately a new—and, “miraculously, an eminently sensible”—copyright policy record coming out of Canada. The file of the Standing Committee on Industry, Science & Technology, released in advance this month, becomes the result of a statutorily mandated parliamentary evaluation of Canada’s Copyright Act, started five years after the getting into the pressure of the Copyright Modernization Act 2012.
The 2012 Act changed into, itself, the result of an extended and consultative reform method aimed toward ratifying the 1996 WIPO Internet Treaties and bringing Canadian copyright law “up to date” with modern-day digital technology. It enacted, for the primary time in Canada, anti-circumvention measures to guard virtual locks (similar to the ones of the 1998 US DMCA); a Notice & Notice machine for Internet Service Providers (ISPs) (in lieu of Notice & Takedown); and a new cause of movement for “permitting” infringement online (crafted to seize the type of peer-to-peer services that had attracted legal responsibility somewhere else: see here and here). On the other facet of the copyright policy ledger, the 2012 Act additionally extended the honest dealing defence to encompass new permitted purposes (parody, satire and training); created new exceptions for not unusual purchaser practices (e.G. Making returned-ups, time- and layout-transferring); and set up the sector’s first express “non-business person-generated content exception” (colloquially, the “YouTube exception”).
The 5-year window, of direction, furnished little opportunity both for proof-accumulating or for the practical implications of those coverage innovations to happen. Nevertheless, it afforded a possibility for lobbyists, interest agencies and stakeholders to mobilize once again, hoping to extend the good, rewind the awful, and reform something they observed ugly approximately the 2012 amendments.
As part of the review method, the Industry committee asked an advisory record from the Canadian Heritage committee (Heritage being the other federal department tasked with copyright policy) on ‘Remuneration Models for Artists and Creative Industries.’ Released with a bit of a thud a few weeks before the very last Industry file, the Heritage document was the kind of coverage document that many copyright experts have come to both worry and count on—an utter and seemingly uncritical embrace, through ostensibly goal democratic representatives, of the transparently self-involved and income-prompted urgings of the same old personal actors and industry lobbyists (see nicely-based criticism right here, right here and here). Its 22 pointers, virtually each one presenting a selection of owners’ rights and expanded enforcement powers, protected: extending Canada’s copyright term to lifestyles of the author plus 70 years (regarding which, it turned into disingenuously claimed, “no witnesses expressed outright competition”); clarifying or disposing of existing exceptions to conform with the Berne Convention’s three-step test; “clarifying” that the fair dealing defense must no longer practice to educational establishments in respect of commercially to be had works; promoting a return to collective licensing; growing efforts to combat piracy; and reviewing safe harbors to make sure that ISPs “are accountable for their function inside the distribution of content.” The record included more than one mentions of the so-called “value hole” that creators are suffering, decried “the decline of the creative middle elegance” and “the poor impact of generation on innovative industries,” even as noting that ISPs “experience and significantly benefit from access to the song they supply their customers.” This line of reasoning will be acquainted with readers in Europe because it reproduces the intent typically proffered for the maximum arguable elements of the EU Digital Single Market Directive.
All in all, the Heritage file changed into a disheartening reminder of ways and why copyright policy-making can pass awry while powerful marketplace incumbents and copyright collectives succeed in putting the agenda to preserve (or restore) their role within the cultural enterprise surroundings. Also on the full show become the benefit with which the rhetoric round fairness and artists’ rights can obscure the gulf between those personal business interests and copyright’s public coverage targets (see here).
Against this backdrop, it does indeed appear pretty amazing that the Canadian overview procedure, in the long run, produced a properly-balanced record from the Industry committee that paves the manner for measured, public-interest oriented copyright reform. The history affords a good-exceeded review of the submissions of stakeholders and specialists on every subject matter, followed by way of committee observations that make specific the reasoning behind the ensuing recommendations. Of these, possibly the most first-rate include: making Canada’s honest dealing defence open and bendy with the aid of turning the enumerated functions into an illustrative list; facilitating the lawful circumvention of virtual locks for positive non-infringing features; minimizing the effect of any term extension via requiring formalities for safety past existence-plus-fifty; permitting authors’ termination rights to cause 25 years put up-assignment (with word) as opposed to 25 years after demise; increasing the transparency of the collective administration of copyright; and adopting open licensing practices for works underneath Crown copyright.
As for pointers made to the committee that Canada observes the EU’s lead, adopting something akin to the arguable Article 17 of the EU DSM Directive as “an effective way to deal with [Online Service Providers (OSPs)],” the committee notes that we’re “but to look…how EU individuals will put in force the Directive and what outcomes distinct strategies will yield. The Government should take the time to study from the successes and screw-ups of those tasks to determine whether or not they serve the long-term pursuits of all Canadians.” (On the challenges of Article 17 implementation, see here.) The report further recommends ensuring that any content material management device employed using OSPs situation to secure harbors “should replicate the rights of rights-holders and users alike.” Interestingly, the committee observes that any additional regulation of OSPs “ought to also mirror a balanced method,” and have to not, for instance, require the takedown of content material “earlier than giving its uploader the opportunity to reply to allegations of…infringement.” (Contrast this with, e.G., Article 17(four)(b) and (c) EU DSM Directive). Acknowledging an elaborate imbalance of power between creators and massive intermediaries, the record notably points not only to OSPs (inclusive of the large consumer generated content structures that bore the brunt of critique in Europe), “however additionally [to] large record labels and publishers.”
Perhaps maximum clean of all is the committee’s recognition that among the problems recognized by means of creators and creative industries for the duration of the evaluate cannot be efficaciously addressed by using the “limited tools” of copyright law: the Copyright Act on my own “can not suffice to ensure that Canadian creators and creative industries acquire honest repayment.” If this appears obvious, it’s miles well worth emphasizing how hardly ever it is mentioned, at the same time as the effective implications of expanding copyright manipulate are commonly assumed. One of my greatest frustrations in copyright debates is the staying power of the fallacy that copyright law is either accountable for—or remotely capable of fixing—the inequities and unfairness experienced via artists, or the dismal underfunding of subculture and the arts, within the context of our financial gadget.
Overall, the Industry committee’s report famous a critical engagement by its members with the pleas and provocations of stakeholders, and a nuanced understanding of the tensions inherent within the assignment of copyright law: rewarding authors while encouraging both the introduction and dissemination of works, balancing the rights of proprietors and customers, and ensuring the protection of a colourful public area. In this feel, it displays the copyright stability articulated by Canada’s Supreme Court (see right here). It is that this principle of stability, I might observe, that has brought about the judicial recognition of “person rights” in Canada, in addition to carefully circumscribed rights in appreciate of middleman liability and communication to the general public, and an overarching commitment to technological neutrality (see right here and right here). The file additionally demonstrates a robust choice for evidence-based policy-making, recommending measures to improve goal and dependable data-collecting on the economic influences of copyright law in Canada. No wonder, in these days’ copyright climate, and the shadow of debatable developments inside the EU in particular, this document elicited exhilaration and accolades from copyright professionals and activists across the world.
There are virtually features of the “residing and level-headed” Canadian parliamentary assessment process that accepted this result, and from which other jurisdictions may learn. The Industry committee’s report is the “fruits of hundreds of oral and written memories,” having consulted with a vast variety of stakeholders, starting with witnesses representing particular industries and sectors, transferring on to interest companies and Indigenous witnesses worried in multiple areas, and concluding with lecturers and criminal specialists “who should communicate widely approximately the Act and remark [on] preceding testimony.” [Disclosure: I am one of the academics.] As the record notes, any stakeholder can have a desired route of motion, and of course “matters get more complex” when a couple of viewpoints are taken into account; however “also they come towards fact.” The reality is that copyright regulation is a complex undertaking that calls for an “ongoing and dynamic” communication. It is actual that “a parliamentary report of this nature have to find a compromise among one-of-a-kind views”—however as the file demonstrates, this needn’t entail a compromise of democratic values or the general public interest. Instead, any understanding should reflect the sensitive balance between defensive authors, users, and the public domain this is critical to advancing the functions of the copyright system amidst shifting cultural, technological, and financial realities.