Copyright consultation provides blueprint for reform

Geist-48X68.jpgPosted by Michael Geist
Forgotten amidst the focus on ACTA over the past two weeks, was a recent column 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 (among 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.

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