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What Canadian Heritage Officials Didn’t Tell Minister Mélanie Joly About Copyright

Last week, Canadian Heritage posted the Ministerial briefing book that officials used to bring new minister Mélanie Joly up-to-speed on the issues in her portfolio. The proactive release is a great step toward further transparency. While the mandate letter from the Prime Minister provides insight into government policy priorities, the briefing book sheds light on what department officials view as priorities and how they frame key issues.

The copyright presentation is particularly revealing since it presents Minister Joly with a version of Canadian copyright lacking in balance in which “exceptions are always subject to certain conditions” but references to similar limitations on rights themselves are hard to find.  Department officials present a frightening vision of emerging copyright issues, pointing to mandated Internet provider blocking, targeting copyright infringement that occurs on virtual private networks, and “hybrid” legal/illegal services that may be a reference to Canadians accessing U.S. Netflix. The suggestion that Canadian Heritage officials have identified site blocking or legal prohibitions on VPN or U.S. Netflix usage as emerging copyright issues should set off alarm bells well in advance of the 2017 copyright reform process.

So what didn’t officials tell Minister Joly? The reality is that the Minister would benefit from a second presentation that discusses issues such as:

  • the emergence of technological neutrality as a principle of copyright law
  • how Canada may be at a disadvantage relative to the U.S. given the absence of a full fair use provision
  • the growth of alternate licensing systems such as Creative Commons
  • how term extension for sound recordings was passed even though the issue was scarcely raised during the 2012 reform process
  • why extending the term of copyright (as proposed by the TPP) would do enormous harm to Canadian heritage.

Yet none of these issues are discussed in the briefing. As for these briefing materials, the following seven issues stand out:

1.     Copyright Limitations and Balance

Last week, the Supreme Court of Canada stated:

It is well established that copyright law maintains “a balance between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creators” of those works. This balance “lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them”.

Minister Joly could be forgiven if she was unaware of the emphasis on balance in copyright. Her departmental officials devote a slide to using copyright content and do not mention the word “balance” in it. The slide notes that exceptions (not user rights) are always subject to conditions. The limitations on copyright – the need for a substantial part of the work, the expiry of copyright, etc. – do not merit a mention. If the Minister is to truly understand the copyright policy debate in Canada, digging into the balancing issues that have been at the heart of policy, political, and court debates is essential.

2.    They are user rights, not “user rights”

Successive Supreme Court of Canada decisions have removed any doubt that user’s rights are an integral part of Canadian copyright law. Yet Canadian Heritage officials seem unconvinced. There is no reference to the Supreme Court jurisprudence and while the court has stated that fair dealing is a user’s right, officials insist on calling it an exception (there is actually no reference to fair dealing either). In fact, the only reference to user’s rights warns that there may be “more calls for limits to be placed on copyright or to recognize ‘user rights’ to increased access to copyrighted material.” To be clear, there is no need for quotation marks around user rights as they are very real. Further, user’s rights are not about more limits on copyright, but rather about the balance that forms of the foundation of copyright.

3.    Emerging copyright issues and pressures

As noted above, department officials identify three issues they claim are emerging:

  • Copyright infringement using Virtual Private Networks (VPNs)
  • Hybrid legal/illegal offer of online content
  • ISP blocking of illegal sites hosted outside Canada

I would be curious to see what evidence supports the claim that these are emerging issues in Canada. In a slide that follows, there is no reference to any of these issues as having been raised by stakeholders. Raising the possibility of targeting usage of virtual private networks, mandated ISP blocking of foreign websites, or so-called hybrid legal/illegal offer of online content – presumably a reference to users who access U.S. Netflix – would be incredibly controversial and opposed by numerous stakeholders. Indeed, given that the TPP includes the latest U.S. demands for reform and there is no requirement on any of these issues, where exactly are these pressures coming from?

4.    Notice-and-Notice Is About More Than Just Effectiveness

Department officials state that the effectiveness of the Internet provider notice-and-notice system has been raised by stakeholders. According to CEG-TEK, one of the largest source of notices, the system has provenextremely effective in reducing piracy rates. The far bigger issue, which departmental officials do not raise, is that the system is being used to send thousands of settlement demands to Canadians. While Canadian Heritage officials neglect to mention the issue, this was never the intent of the system and there have been discussions about addressing the issue with clearer requirements on notice content.

5.    Digital Lock Exceptions

An ongoing concern with the Canadian copyright system are the restrictive digital lock rules. In fact, given the restrictiveness of the language, the Conservative government proposed expanding the current exception for the blind. The same restrictive language appears in the exception for privacy protection. Moreover, Canada still does not have a general exception to protect fair dealing. Rather than identifying digital lock regulations as an issue, Canadian Heritage officials make no reference to it in the briefing materials.

6.    Educational Copyright

There are several references to educational copyright, with officials claiming that legislative reforms have “disrupted” former business models of authors, publishers, and their collective societies. Yet legislative reforms are a tiny part of a much bigger story. Driven primarily by technology and the Internet, the landscape for copying and distributing educational materials has changed dramatically over the past 15 years. New technologies have enabled the creation of massive databases of electronic materials, with institutions gradually shifting much of their budgets to electronic subscriptions to enable access to a far larger collection of materials than many libraries could purchase on an individual basis. The emergence of open access publishing, which allows researchers to make their research openly and freely available on the Internet, has become the standard in many disciplines. As for the law, the Supreme Court of Canada’s approach to fair dealing is a far bigger factor for changing approaches than anything the government did in 2012.

7.    The TPP

There are many other concerns with the presentation from departmental officials. Remarkably, another presentation on culture and trade negotiations even gets the status of the TPP wrong, stating that it is in the process of ratification/implementation when it has not even been signed yet. This is a very sensitive issue with the government insisting that no decision has been taken, yet Canadian Heritage officials are now advising the minister that the agreement is at the ratification and implementation stage. Moreover, this marks the second time in recent weeks that government officials have provided a questionable summary of copyright law. The TPP copyright summary released in October was inaccurate, indicating that Canadian law was consistent with the agreement despite the need for copyright term extension that will have an enormous economic and cultural impact on the country.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at www.michaelgeist.ca.