What Comes Next for Canadian Copyright Reform: Speculating on Three Scenarios

Scenario Two - Bill C-32 Back With Minor Modifications

If Bill C-32 is not reintroduced unchanged, the next most likely scenario are minor modifications to issues such as digital locks (an exception for DVDs like that now found under the U.S. DMCA), fair dealing (codification of the Supreme Court of Canada's fair dealing test), and the so-called enabling infringement provision (making violation subject to statutory damages). These modifications would allow the government to claim that it incorporated the testimony from the Bill C-32 hearing and therefore move the bill more expeditiously through the Parliamentary process.

It is possible that the government will hold off making these amendments so that it leaves some wiggle room for reform as the bill near its final stage. While it has the votes to get it passed without amendment, a conciliatory approach that generates broader support might be preferable. The political dynamics are now such that with the Bloc gone (with it the strongest opposition to C-32) and the most vocal Liberal critics defeated (particularly Pablo Rodriguez and Dan McTeague), the NDP is the key player. The NDP criticized Bill C-32 on both consumer and creator grounds. The new NDP caucus has many from the creator community (Charlie Angus, Andrew Cash, Kennedy Stewart, Tyrone Benskin) so will undoubtedly focus intently on the copyright bill. It will be looking for some wins, but given that its iPod levy proposals are going nowhere, it might ultimately promote modest consumer changes and emphasize maintaining culture funding in the face of the government-wide pressure for cuts that will affect all departments.

Scenario Three: A Reconsidered Approach to Copyright

The least likely of the three scenarios is the prospect that the government will make substantial changes to the bill. A change in ministers could trigger a broader review, but given the role of the Prime Minister on this issue (as evidenced by the Wikileaks cables), it seems very unlikely that new ministers would have the mandate to completely re-write the bill.

The more likely reason for a reconsideration is strategic, not political. Copyright policy is now driven primarily by trade policy, particularly trade relationships with the U.S., Europe, and to a lesser extent the BRIC countries (Brazil, Russia, India, and China). Copyright may be relatively unimportant politically, but trade agreements form a key part of the Conservative economic plan for the next four years. Consider that Harper devoted his morning press conference during the campaign (essentially the message of the day) to trade and border agreements on two occasions - once in Halifax to promote trade deals with Europe and India and once in Niagara Falls to discuss the border and trade relationship with the United States. Throw in the Conservative platform emphasis on trade with China and Russia and it becomes readily apparent that trade policy is far more important to this government than copyright policy.

Viewed in that light, linking copyright reform to Canada's trade ambitions is not only likely, it is essential. Copyright and other intellectual property matters form a big part of these agreements and it would be a major strategic blunder to simply cave on IP issues without at least using the leverage to extract some trade gains in other areas. There is every reason to believe that Harper recognizes this connection. For example, in one of the Wikileaks cables, the U.S. expresses frustration with a 2007 Harper letter in which he links copyright reform with progress on other border issues. The U.S. cable states:

the Prime Minister appears to link progress on IPR initiatives under the Security and Prosperity Partnership (SPP) to initiatives on regulatory cooperation - a major Canadian concern.  Given  the timing of the letter, the lack of progress on IPR issues, and the attempt to link IPR to an unrelated Canadian concern we view this as an attempt to justify their inactivity rather than make the changes which more and more Canadians are realizing are needed.

Assuming Canada is making these connections, addressing the intersection between trade and copyright reform is challenge because the interests and demands of our trading partners differ. Caving to foreign pressures - ie. selling out Canadian copyright - would be a disaster as Canada would end up with the worst of all worlds with copyright laws essentially drafted in Washington and Brussels. The better approach is to identify the key pressure points from each with the goal of reducing external pressures and adopting policies in the national interest. This could include:

United States: The U.S. is obviously the most persistent and vocal critic of Canada's copyright and intellectual property laws. It should be readily apparent to the government that the U.S. will never be fully satisfied with our approach as they complain about virtually every major trading partner. In the last few years, the Conservative government has passed anti-camcording rules (passed in a matter of months at the request of the U.S.), changed proceeds of crime rules for copyright infringement, and participated in the Anti-Counterfeiting Trade Agreement. All of these initiatives were quickly forgotten as the U.S. moved on to the next concern. This year's Special 301 Report points to issues that loom on the horizon after copyright, particularly patent and drug approvals that could add billions in costs to Canadians if we do what the U.S. wants.

For the moment, there are two key U.S. copyright demands - digital locks and IP border enforcement. On digital locks, the new copyright bill could easily be extended to jailbreaking devices such as iPhones and unlocking DVDs, since those exceptions are now found under U.S. law. Canada could certainly go further under international law and might have some political leeway to do so if we also address border enforcement concerns. On the issue of IP border enforcement, I suspect there will be another bill that addresses that issue introduced sometime soon. If the government were to introduce both simultaneously - the political risks that that approach brought under a minority government are now gone - it might reduce some of the digital lock pressure and allow for an approach that links circumvention to actual copyright infringement, as found in countries like New Zealand and Switzerland (as well as proposed in both India and Brazil).

European Union: The EU has already scaled back some of their copyright demands in CETA, which previously included an extension of the term of copyright protection. Given their desire to protect famous brand names, pharmaceuticals, and well known agricultural products, much of their attention has been focused on trademarks, patents, and geographical indications (there has been some focus on broadcaster copyright). If Canada is willing to move on these issues, the copyright pressures would be significantly reduced. This might include pursuing full fair use, which does not raise objections from the U.S., but does from the E.U. Of course, moving on those other issues will come at a significant cost, with the prospect of higher drug prices and restrictions on many Canadian food producers. The costs of CETA have not been fully explored as the IP provisions in particular are unprecedented in scope for a Canadian trade deal.

BRIC Countries: The copyright relationship with the BRIC countries is somewhat different, since none of those countries are actively pressuring Canada to reform its laws. In fact, given that all four BRIC countries are criticized in the U.S. Special 301 Report, Canada shares similar external trade pressures. The opportunity for Canada is to partner with the BRIC countries in pursuing more balanced approaches to intellectual property (together with countries such as New Zealand, Switzerland and the Nordic countries).  By working toward creating a coalition of countries that recognize that their national interest lies in striking an IP balance, Canada has the opportunity to meet its own needs and play a leadership role on the international stage. A trade deal with India offers a great place to put that approach into practice.