GOVERNMENT'S NEW COPYRIGHT PLAN MORE BALANCED Michael Geist – Toronto Star Last spring the Canadian Heritage Standing Committee conducted a series of hearings on copyright reform. Listening to a steady stream of rights holder groups, the committee virtually ignored the public interest as it issued an embarrassing report featuring recommendations devoid of any sense of balance.
That report was applauded by rights holders groups — the Canadian Recording Industry Association issued a press release praising the report and calling for its immediate adoption —however, in the months that followed the recommendations faced a barrage of criticism.
The education community, led by provincial ministers of education, loudly protested the recommendations, while Canada's security IT community issued a public letter warning of danger to that economic sector.
The June federal election also altered the long-term impact of the report. The committee lost members; one, former MP Paul Bonwick, signed up as a paid lobbyist for Access Copyright, a copyright collective.
The new committee adopted a decidedly different tone. Although it re-tabled the report, Marlene Catterall, the new committee chair, publicly expressed a desire to learn more about the issues. NDP committee member Charlie Angus was even more direct, warning that "the recommendations could herald the end of the Internet as a digital intellectual commons."
The policy reversal came full circle last week as the government released its official response to the committee report. Setting out the immediate path for Canadian copyright reform, the government rejected virtually every recommendation and instead unveiled a plan that attempts to balance both the interests of creators and users.
The committee had earlier recommended the immediate ratification of the World Intellectual Property Organization's Internet treaties. But on Thursday the government announced it plans to implement provisions found in the treaties, but will delay ratification.
The committee had recommended establishment of a "notice and takedown" system for Internet service providers that would encourage ISPs to remove content upon receipt of an allegation of copyright infringement. The government announced plans to establish a more balanced "notice and notice" system that requires a court order prior to the removal of content.
The committee had recommended creation of an extended license that would force the education community to pay millions of dollars for Internet materials. The government shelved this entire proposal, calling for broader consultation.
The committee had recommended reforms to photographers' copyright, without protections for the public. Now the government plans an exception for commissioned photos for personal or domestic use.
The committee earlier cautioned against electronic delivery of interlibrary loans, suggesting that a new license might be warranted. The government committed to allow libraries to directly deliver certain copyrighted materials electronically.
Moreover, the government outlined its plans for anti-circumvention legislation, which establishes legal protection for the digital locks known as technical protection measures (TPMs) that are used to control digital content. Although it is arguable that no anti-circumvention provisions are needed, the government at least demonstrated it is determined to avoid the approach taken in the U.S.
Unlike the U.S. anti-circumvention provisions, the government plans to link anti-circumvention to actual copyright infringement, pledging that "the circumvention of a TPM applied to copyright material will only be illegal if it is carried out with the objective of infringing copyright. Legitimate access, as authorized by the Copyright Act, will not be altered."
Notwithstanding the encouraging emphasis on balance, there remains reason for concern and caution. There is concern the government has committed to a "making available" right, which, if enacted, might pave the way for new lawsuits against individual file sharers.
Contrary to some reports, the proposed changes do not touch peer-to-peer downloading, but instead ensure unauthorized postings of copyrighted work will constitute an infringement. The government should limit use of the provision to instances where there is evidence of intention to infringe copyright.
There is also some disappointment since the report fails to outline a vision that will truly benefit individual creators and users. The government could have undertaken to eliminate statutory damages, which create an unfair benchmark of potential liability when applied to individual users. Similarly, it could have introduced new licensing rules for Internet radio, eliminated crown copyright, expanded fair dealing, or pledged to maintain the term of copyright at the current life of the author plus fifty years.
Most importantly, there is reason for continued caution. Last week's government announcement was not legislation but a statement of intent. The devil will be in the details as the copyright community awaits the actual legislation that emerges.
With Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla sharing copyright policy responsibility, the Canadian framework encourages the development of compromise positions. Once the legislation is introduced, however, compromise and balance will be forced to withstand the voracious array of well-funded lobby interests who will undoubtedly seek the return to a one-sided slate of reforms. Ottawa may have presented its plan, but the copyright battle is far from over. |