[Editor’s note: Whenever governments review their copyright, one of two things happens: either they only listen to industry reps and then come to the “conclusion” that more copyright is always better; or they listen to stakeholders and experts and conclude that a little goes a long way. Normally, when the latter happens, the government that commissioned the report buries it out of terror of powerful Big Content lobbyists. This time, miraculously, an eminently sensible Canadian report has seen the light of day. I was delighted to invite the legendary Canadian copyright scholar Michael Geist to present a short analysis of some of the important conclusions. -Cory]
The Canadian government launched an extensive review of its copyright law last year that led to months of study and attracted hundreds of witnesses and briefs. While some groups hoped the review would lead to new website blocking measures and restrictions on fair dealing (Canada’s version of fair use), the Industry committee report released this week actually recommends expanding fair dealing, rejects site blocking without a court order, and rejects proposals to exclude education from fair dealing where a licence is otherwise available. The study covers a wide range of copyright issues, but its conclusions on fair dealing, digital locks, site blocking, and term extension are particularly noteworthy.
Based solely on the number and length of the footnotes, it is readily apparent that fair dealing, particularly educational fair dealing was a dominant issue at committee. The committee concluded that much of the change over the past five years is due to Canadian publishers struggling to adjust to market disruptions that are unrelated to the 2012 copyright reforms. Indeed, the committee notes that “the decline of collective licensing in education has arguably more to do with technological change than it does with fair dealing.” The committee was concerned with developments in the area but ultimately rejected the recommendation of the publishers and copyright collectives:
The Committee cannot endorse the proposal to limit educational fair dealing to cases where access to a work is not “commercially available,” as defined under the Act. While licensing should be encouraged, this proposal risks reducing flexibility in the educational market by favouring blanket over transactional licensing.
Instead, it calls for the Canadian government to facilitate efforts to achieve consensus on fair dealing and to review the issue again within three years.
Having dismissed the proposal to limit educational fair dealing, the committee then addresses the restrictive nature of an exhaustive list of fair dealing purposes. At long last, it recommends adopting the “such as” approach to make the current list illustrative rather than exhaustive:
Parliament should make the list of purposes enumerated under section 29 of the Act an illustrative list rather than an exhaustive one. Doing so would increase the flexibility of the Act by allowing a broader range of admissible purposes to emerge from existing ones under the guidance and the supervision of the courts—for example, from criticism to quotation, from parody to pastiche, and from research to informational analysis. Such an amendment could allow new practices to fall under fair dealing, such as “reaction videos” and video game streaming. The Committee emphasizes that the purpose of a dealing is only one of many factors taken into account when determining whether this dealing is indeed fair under section 29 of the Act.
The increased flexibility would make the Canadian fair dealing provision closer to the U.S. fair use model, but retain the certainty that comes with decades of jurisprudence on the issue.
The committee also called for the introduction of at least one new exception: informational analysis, the Canadian equivalent of a text-and-data mining exception to facilitate artificial intelligence and machine learning activities.
Internet Safe Harbours and Site Blocking
The committee report provides an extensive review of safe harbours for Internet platforms and ISPs.The committee rejected proposals to limit the safe harbour provisions in the Copyright Act. In fact, the committee even expresses concern with bringing notice-and-takedown to Canada:
The Committee finds it questionable, for example, that an OSP’s content management policies would require taking down or de-monetizing content uploaded on a platform before giving its uploader the opportunity to respond to allegations of copyright infringement.
Instead, it simply calls for ongoing monitoring of developments around the world.
With respect to site blocking, the committee rejects the creation of an Internet piracy system such as the FairPlay proposal, concluding that the courts must be involved:
The Committee does not, however, support the development of an administrative regime to these ends. It is for the courts to adjudicate whether a given use constitutes copyright infringement and to issue orders in consequence. The courts already have the expertise necessary to protect the interests of all involved parties.
It therefore recommends changes to facilitate court orders, subject to “paramount importance be given to net neutrality in dealing with impacts on the form and function of Internet in the application of copyright law.”
The committee review provided a valuable opportunity to re-examine Canada’s DMCA-style digital lock rules, which are among the most restrictive in the world. The committee would like to change that, recommending adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:
However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.
This change – which was widely recommended when the law was first established – would ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.
The committee noted that it heard arguments both in favour and against copyright term extension. The committee recognized there may no alternative but to extend copyright given the USMCA, but it recommended limiting the harm by only doing so if the agreement is ratified. Moreover, it recommended establishing a registration requirement for the additional 20 years:
The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.
The use of registration system would provide a model for other countries and ensure that many works still enter the public domain after life of the author plus 50 years.
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