Skip to Content

copycon

Tuesday November 17, 2009
Copyright Consultation Provides Blueprint for Reform
Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) 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 (amont 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.
Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) 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 (amont 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:

Wednesday October 14, 2009
Access Copyright: Reduce Fair Dealing, No Taping TV Shows or Format Shifting
The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states: Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers. The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.
The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.
The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.
Friday October 9, 2009
CRTC Calls For Expanded Copying For Private Use
The Government is still in the midst of posting copyright consultation submissions. Yesterday it posted a notable response from the CRTC yesterday.  While it was somewhat surprising for the Commission to participate in the consultation, it used the opportunity to focus on three issues - tariff setting for radio, streamlining Copyright Board proceedings, and expanding the Copyright Act to legalize copying for private use. The CRTC argues that using fair dealing to legalize issues such as time shifting and format shifting would not provide sufficient certainty.  Instead, it favours several new rights for consumers distinct from fair dealing.  These include: time-shift radio and television programs; format-shift copyright material they own from one device to another for private use; and, make copies of copyright material they own for private use. The CRTC did not recommend any compensation systems for these new copying rights.
The Government is still in the midst of posting copyright consultation submissions. Yesterday it posted a notable response from the CRTC yesterday.  While it was somewhat surprising for the Commission to participate in the consultation, it used the opportunity to focus on three issues - tariff setting for radio, streamlining Copyright Board proceedings, and expanding the Copyright Act to legalize copying for private use. The CRTC argues that using fair dealing to legalize issues such as time shifting and format shifting would not provide sufficient certainty.  Instead, it favours several new rights for consumers distinct from fair dealing.  These include:
  • time-shift radio and television programs;
  • format-shift copyright material they own from one device to another for private use; and,
  • make copies of copyright material they own for private use.
The CRTC did not recommend any compensation systems for these new copying rights.
The Government is still in the midst of posting copyright consultation submissions. Yesterday it posted a notable response from the CRTC yesterday.  While it was somewhat surprising for the Commission to participate in the consultation, it used the opportunity to focus on three issues - tariff setting for radio, streamlining Copyright Board proceedings, and expanding the Copyright Act to legalize copying for private use. The CRTC argues that using fair dealing to legalize issues such as time shifting and format shifting would not provide sufficient certainty.  Instead, it favours several new rights for consumers distinct from fair dealing.  These include:
  • time-shift radio and television programs;
  • format-shift copyright material they own from one device to another for private use; and,
  • make copies of copyright material they own for private use.
The CRTC did not recommend any compensation systems for these new copying rights.
Friday September 25, 2009
Industry Canada Responds: Copyright Consultation Submissions Are Coming
I spoke earlier today with an official at Industry Canada regarding the thousands of missing copyright consultation submissions. I was advised that there was a huge spike of submissions toward the very end of the consultation period.
I spoke earlier today with an official at Industry Canada regarding the thousands of missing copyright consultation submissions. I was advised that there was a huge spike of submissions toward the very end of the consultation period. There were slightly over 8,100 submissions, a huge number in comparison with virtually any other government consultation in recent memory (consultations typically draw 50 to 100 responses). The government is committed to posting all submissions in HTML format due to access concerns. Since many submissions arrived in PDF form, there is considerable coding work underway. Their current plan is to continue to post submissions with the hope of completing the job over the next few weeks. For those seeking to search the posted submissions, CCER has just launched a search engine of consultation submissions.
2009 Copyright Consultation
I spoke earlier today with an official at Industry Canada regarding the thousands of missing copyright consultation submissions. I was advised that there was a huge spike of submissions toward the very end of the consultation period.
Thursday September 24, 2009
Where Are The Copyight Consultation Submissions?
For the past week, I've been receiving daily emails from Canadians asking if I know why their copyight consultation submission has not been posted. The website currently includes some submissions for every day the consultation was open (September 15th), yet there are thousands of submissions that are still not up. My last update accounted for just over 4,000 submissions and there are rumours that the final number topped 7,000 (10 times the number of submissions in the 2001 consultation). While some delay in processing and posting all of those submissions is reasonable, the lack of information about the situation is not. The government opened the consultation with a strong commitment to openness and transparency. That should continue to the end of the consultation with a full update on status of the missing submissions, the reasons for the delays, and the anticipated date for the posting of all submissions.
2009 Copyright Consultation
Tuesday September 15, 2009
(New) Last Day To Submit to Copyright Consultation: More Opinions Posted

Today is the new last day to submit to the copyright consultation with the grace period expiring at midnight.  It only takes a single email to register your views.  Whether you use a form letter or craft your own submission, every submission counts.  More posted views and submissions include:

2009 Copyright Consultation
Tuesday September 15, 2009
Tracking the Copyright Consultation Discussion Forum: Final Results

Throughout the copyright consultation, I've been assisted by University of Ottawa student Frances Munn, who has been tracking the discussion in the online forum (earlier updates here, here, and here).  While submissions will still be accepted until midnight tonight, the discussion forum is now closed.   The forum attracted over 2,000 comments with a summary posted below.

2009 Copyright Consultation
Monday September 14, 2009
Still Time To Speak Out: Government Grants 48 Hour Extension For Submissions

The government has just announced that there is a 48 hour extension on submissions to the copyright consultation.  While the discussion forum has closed, Canadians now have until Tuesday night to submit their views on copyright.  If you missed last night's deadline, there is still time to craft your own submission, use a form letter, or send out a quick email.  There were many new submissions of note posted online over the weekend.  They include:

An op-ed in The Mark from Queen's University Principal and Vice-Chancellor Daniel Woolf is also a must-read. Woolf focuses on four key issues:

1.      Digital locks, though they may be used to stop piracy, must not impede users’ rights.
2.     Fair dealing ought to be clarified and amplified.
3.     Specialized exceptions ought to be used sparingly because they likely wouldn’t be able to keep up with technological change or accommodate a range of reasonable educational practices.
4.     Licensing mechanisms must not be seen as a substitute for users’ rights.

The absence of an educational exemption for the Internet - as advocated by the AUCC - suggests that more of the educational community is (rightly) shifting toward fair dealing and DRM as the critical issues.

2009 Copyright Consultation
Sunday September 13, 2009
Canadian Copyright Law: Charting the Change

On this last day of the copyright consulation, I have been amazed by the number of people who have written recently with news of their submission posted on a blog or other site (examples here, here, here, here, here, here, and here).  The government reports that they have received over 5,000 submissions, but it is clear that number is going be higher by the end of the day. 

One of my favourite submissions comes from Wallace McLean, who focuses on public domain, archival, and photography issues.  While the submission is not yet online, he was kind enough to grant permission to post the charts below.  The first tracks the cumulative number sections of the Copyright Act that have been amended, added or repealed.  The second shows the cumulative number of copyright bills that have been introduced in Canada.  I think both charts speak for themselves - far from being an archaic law that never changes, copyright law in Canada has undergone considerable change, with the most dramatic reforms occurring over the past two decades.  The end of the consultation signals that these charts will continue to grow in the coming months, making it more important than ever to ensure that you speak out on copyright today (literally today).

Canadian copyright act ss. amendments Canadian copyright-related bills

2009 Copyright Consultation
Saturday September 12, 2009
New Copyright Consultation Submissions of Note

With two days left, many organizations are posting their final submissions to the copyright consultation online.  Recent postings include:

2009 Copyright Consultation
Syndicate content