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Navigating Canada's Copyright Conflicts

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In a sure sign of an impending throne speech, copyright lobby groups are out in full force calling on the government to prioritize intellectual property protection in its fall legislative agenda.  Despite efforts to put forward a united front, however, what is readily apparent to those close to the process is that copyright reform is rife with conflicts that create a significant political risk and require the expenditure of enormous political capital.

The recent revelations about a potential conflict of interest within the Canadian Heritage Copyright Policy Branch are certainly the most obvious manifestation of conflict concerns. Although perceived conflict issues in this area are nothing new, the existence of a personal relationship between the government’s head of copyright policy and Hollywood's top Canadian lobbyist at a time when the government is pursuing a copyright reform bill raises uncomfortable questions about who knew what and when within Canadian Heritage.

Yet focusing exclusively on this form of conflict would be a mistake, since conflicted agendas, policies, and stakeholders present a more treacherous minefield.

For example, notwithstanding last week's Hill Times opinion piece from several music industry groups, the field has become very crowded in recent years. There are certainly divisions within the record label community, as some leading Canadian companies were opposed to the inclusion of the Canadian Independent Record Production Association as a signatory to the piece.

Moreover, last month the Canadian Recording Industry Association split with Canada's copyright collectives, seeking Federal Court of Canada permission to formally oppose the collectives' support for the expansion of the private copying levy. Add in the emergence of the Canadian Music Creators Coalition, comprised of Canada's best-known musicians, and the claims of industry unity fall flat.

Similar conflicts are evident in the education sector as new licensing systems and court decisions raise questions about the necessity spending millions of tax dollars on certain copyright licenses. Moreover, the education community is itself conflicted with students and university teachers increasingly opposed to the copyright reform proposals promoted by provincial education ministers.

If that is not sufficiently complicated, an assortment of other divided stakeholders wait in the wings.  These include the powerful telecommunications companies (seeking support for ISP immunity and the expansion of fair dealing), broadcasters (seeking the elimination of some copyright payments), photographers (seeking expansion of their rights), and visual artists (campaigning for greater certainty of access).

Beyond all of these stakeholders, there are two elephants in the room that also face significant conflict.  One is the United States, which has made intellectual property protection a top trade policy priority.  Canada has already succumbed to demands for anti-camcording legislation, but conflict over anti-counterfeiting and copyright measures remains.

The other major stakeholder was scarcely present during past copyright reform efforts - Canadian consumers and individual creators. In recent months, controversies over the security and privacy threats from digital rights management technologies, the lack of interoperability for online entertainment services, and the use of technology to interfere with basic consumer property rights make it clear that no government seeking popular support can put forward a copyright package that does not prioritize consumers.

Reconciling these conflicts presents an enormous challenge, yet there are some solutions.  U.S. pressure can likely be addressed by focusing on anti-counterfeiting measures such as stronger border enforcement, an issue that appeals to the security imperative and faces no significant opposition on the domestic front.

Addressing consumer concerns necessitates a legislative package that focuses on restoring balance to Canadian copyright law, thereby emboldening a new generation of Canadian creators, preserving consumer property rights, and capturing the public's attention.  These include provisions that formally legalize recording television shows (time shifting), permit personal backup copies of CDs and DVDs (format shifting), expand fair dealing to allow for innovative new business models, and establish a close link between legal protection for copy-control technologies and actual copyright infringement.

Copyright policy is typically a divisive and challenging issue for any government.  For a minority government seeking a broader mandate, navigating copyrights' conflicts is guaranteed to lead to choppy waters.

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