A balanced approach to reforming copyright law
Copyright reform is contentious and polarizing, but that doesn't mean Canadian legislators can't find a balanced solution
by Michael Geist
Few legal issues have proven as divisive in recent years as copyright reform.
Proponents of stronger protections, fearing that the Internet and digital technologies will eviscerate traditional copyright protections, have actively lobbied for new powers to block unauthorized access to copyrighted material and new compensation schemes to pay for new technological uses of old work.
Opponents of stronger protection argue that Canadian copyright law must adopt a balanced approach in which the interests of creators are addressed in parallel with the needs of users and the larger public interest. The unexpected consequences of copyright reform in other jurisdictions - jailed software developers, a chilling of scientific research and copyright litigation over technologies such as garage-door openers - have led opponents to argue that Canada must navigate a balanced approach that avoids the mistakes made elsewhere. They point to the recent Supreme Court of Canada decision involving legal publications (the Law Society of Upper Canada v. CCH Canadian), which ranks as one of the world's strongest high-court decisions to come down on the side of the rights of users.
While the notion of balance in copyright law has proven contentious in some quarters, it is in fact a well-established principle under Canadian intellectual property law. For example, under Canadian patent law, inventors receive a limited monopoly over their invention that grants them exclusive authority over how that invention is used. In return, the patent expires after a prescribed period, at which time anyone may use the invention without prior authorization. Moreover, obtaining patent protection also requires inventors to fully disclose and describe their invention so that the public obtains the immediate benefit of that knowledge.
The Canadian Supreme Court has affirmed a similar balance in copyright. Creators enjoy a basket of exclusive rights such as the sole right to reproduce or perform the work. In return, the term of copyright protection is limited so that expired work becomes part of the public domain and may be used by anyone without permission or payment.
Furthermore, the Copyright Act establishes a series of "user rights," known as exceptions, that allow users to freely use portions of copyrighted work for such things as research, private study, news reporting and criticism. While some parliamentarians have expressed concern that these exceptions lead to "freebies," in fact it is these exceptions that ensure that the Copyright Act retains the balance needed to give creators their exclusive rights.
Dangerous vision
With that balance in mind, it is deeply troubling that last spring a Canadian Heritage parliamentary committee presented a vision of copyright that would dramatically tilt the balance and transform the Internet from the incredible open source of information that it is into a predominantly commercial medium available primarily to those willing to open their chequebooks.
The danger inherent in the committee's proposed approach is particularly evident in its recommendations on educational uses of the Internet. Most in the education community are well aware that Canada's Copyright Act already provides educators and students with a user right in copyrighted work for research and study purposes. The Supreme Court has ruled that this right is to be interpreted in a liberal fashion such that copying full articles may be lawful in certain circumstances. The use of those works in the classroom is not covered, however, forcing teachers to sort through the rights attached to online materials before using them in course materials.
The Canadian educational community has proposed a balanced solution by establishing a limited educational user right to publicly available work on the Internet. In keeping with longstanding and widely accepted practices on the Internet, a publicly available work would include materials that are not technologically or password protected - that is, information that the author would appear to want to make widely available.
Access Copyright, the primary Canadian collective for printed works, takes another view. It has lobbied for an extended licensing approach, claiming that on the Internet "what appears to be publicly available is truly not publicly available, and certainly not publicly available for educational purposes."
Despite the crucial role played by the education community as both users and creators of new works, the parliamentary committee surprisingly rejected its proposal, opting instead for a new licence to cover Internet-based works. This new licence would require schools to pay yet another fee (the education community already hands over millions in licence fees each year for content) for works found on the Internet.
Although the committee acknowledged that some work on the Internet is intended to be freely available, it recommended the adoption of the narrowest possible definition of "publicly available." Its definition included only those works that are not technologically or password protected and that contain an explicit notice that the material can be used without prior payment or permission.
In other words, rather than adopting an approach that facilitates the use of the Internet, the committee called for the creation of a restrictive regime in which nothing is allowed unless expressly permitted. The result would be an Internet that requires schools to pay to use Internet materials, contrary to the expectations of many creators.
A far more balanced approach, and one more in line with Canadian values, would be to permit all uses unless they were specifically prohibited by the copyright holder. This could easily be achieved in a way that respects copyright by establishing a publicly available definition of works available for public use. The definition would encompass works that are not technologically or password protected and for which the copyright holder has not expressly asserted limitations on the use of the work.
The treatment of educational copyright highlights the need for a policy process that fairly addresses the concerns of creators, users and the public interest - the three key stakeholder groups. To achieve this goal, I believe the process should be governed by five key principles of balance.
First, the procedural aspects of copyright reform must be balanced. This requires that all three stakeholders be at the table during consultations and policymaking meetings. Unfortunately, the parliamentary committee failed in this regard as the few user and public interest groups that participated were strongly outnumbered by creator groups.
Further, copyright proceedings must also be perceived to be balanced. That wasn't the case when the chair of the Canadian Heritage committee, Toronto MP Sarmite Bulte, accepted thousands of dollars in campaign contributions from copyright groups and broadcasters. Parliamentarians involved in the copyright reform process should refuse all such contributions to ensure that the perception of absolute impartiality is preserved.
Second, the balance objective must help shape every policy decision. This path means rejecting the parliamentary committee's approach of weighing opposing policy approaches and then simply siding with one or the other. For example, rather than working towards a balanced and limited Internet exception for education, the parliamentary committee simply considered the competing proposals presented by educational groups and rights-holder groups and recommended the latter. Instead, policy makers must seek to reconcile opposing approaches by identifying an appropriate middle ground that best addresses the needs of all three stakeholder groups.
Third, copyright reform analysis should incorporate empirical evidence and economic analysis. Too often during the parliamentary committee hearings, witnesses voiced conclusions without providing any supporting documentation. For example, the parliamentary committee recommended the adoption of the "notice-and-takedown" system, in which Internet service providers would qualify for a safe harbour from liability if they remove content from their systems that is allegedly infringing copyright. In doing so, the committee all but ignored a recent economic study commissioned by Industry Canada that found that the more balanced "notice-and-notice" system, in which an Internet Service Provider notifies its customer of the infringement allegation and removes content only under court order, would likely prove just as effective.
Fourth, Canadian policy makers should not be afraid to be creative in formulating uniquely Canadian solutions. While the parliamentary committee made no effort in this regard, Canadian creativity could include support for initiatives like the Creative Commons. The Creative Commons, a project launched at Stanford University by Professor Lawrence Lessig, is working to enhance the size and scope of the public domain and should be adopted as widely as possible by the education community after the Canadianized version debuts this fall.
Moreover, we should not hesitate to develop made-in-Canada legal solutions. For example, Canadian implementation of the World Intellectual Property Organization's Internet treaties could help preserve copyright balance if we include explicit exceptions to technical protection measures - exceptions that would protect user rights such as copying for research, private study, criticism and news reporting. (Technical protection measures are technological access controls that limit the ability to access digital content.)
Fifth, Canada's policy makers should continue to exhibit patience by making it a priority to find a balanced approach to copyright reform, rather than a quick fix. While some in the copyright community, including the parliamentary committee, have expressed frustration over the slow pace of Canadian copyright reform, we have benefited from our slower approach by being able to identify the unexpected and detrimental consequences experienced elsewhere.
Copyright reform has long been one of the most contentious and polarizing legislative issues. With the Supreme Court of Canada's balance objective now established beyond doubt, we must move past the old-style reform approaches typified by the Canadian Heritage committee toward a new era of reform that accounts for the interests of all Canadians.
Michael Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He is on-line at www.michaelgeist.ca
