Copyright Policy Reform in Canada

Copyright Policy Reform in Canada

PART I: Narrative Chronology of the Policy Process

Canada’s first copyright act was passed in 1921 but did not come into affect until 1924 and was very closely modeled on Britain’s 1911 copyright act. Bill C-60 in 1988 amended the original Copyright Act of 1924 to address “computer programs, anti-piracy remedies, the relationship of the copyright and industrial design legislation, the Copyright Board, the collective management of copyright, moral rights, the protection of choreographic works, the abolition of compulsory licenses for the making of sound recordings, and the right to exhibit artistic works in public” (Digital Copyright Canada). While Bill C-60 in 1988 addressed issues relating to copyright holders, it did not address user-rights, which the Government assured Canadians would be part of phase two.

Between 1985 and 1997, minor changes were made to the Canadian Copyright Act: the 1989 Canada-US Free Trade Agreement; Bill C-88 regarding musical work in 1993; North American Free Trade Agreement (NAFTA) conditions in 1994; and in 1996 the World Trade Organization (WTO) Agreement Implementation Act extended copyright to all WTO countries.

In 1997, phase two of the copyright reform was completed with Bill C-32. Bill C-32 overhauled the Canadian Copyright Act with amendments for the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, clarification of Fair Dealing, and much more. Bill C-32 included a section “Section 92” which required a “report on the provisions and operation of the Act within five years” which would be the year 2003 (Interim Report, 2004).

In June 2001, the Government published two documents, A Framework for Copyright Reform and Consultation Paper on Digital Copyright Issues. The Framework was intended to outline “the copyright reform process that the Departments of Industry and Canadian Heritage are undertaking over this government’s mandate”. They stated the mandate was “to inform Canadians about the objectives of the reform, the process and the underlying principles”. Public consultations began as well, resulting in more than 700 documents from Canadian citizens, hundreds of Stakeholder Submissions, and a citizen-launched mailing list which later became the Digital Copyright Canada forum. In March and April of 2002 there were cross-Canada consultations held by the Intellectual Property Policy Directorate (a part of Industry Canada) and the Department of Canadian Heritage “to solicit opinions from stakeholders on digital copyright.” The main topics were: creation of a “making available” copyright privilege; legal protection of “technological measures”; legal protection of “rights management information”; and liability of network intermediaries (Skala, 2003).

The five-year report for Section 92—Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act—was tabled in Parliament on October 3, 2002 and “identifying the issues that have remained outstanding since Bill C-32, as well as new issues that have since emerged” for a total of more than 40 issues from short-term, medium-term, and long-term. The report was a joint effort between David L. Emerson, then-Minister of Industry Canada and Liza Frulla, Minister of Canadian Heritage at the time.

A year later in October 2003, the Standing Committee on Canadian Heritage began a statutory review of the Copyright Act as per instructions from an Order of Reference dated November 5, 2002 as well as Section 92 of Bill-C32. The review had two phases, one to focus on the general issues of copyright reform and the other dedicated to sector-specific issues. The first hearings on the review began October 7, 2003, beginning with an overview of the current Copyright Act and then recommendations on the proposed reform agenda from Section 92, the proposed timeline, and guiding principles for reform decisions. One major short-term issue was identified: the Government needed to implement two 1996 World Intellectual Property Organization (WIPO) treaties that were signed by Canada in 1997—the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). This was considered the duty of the ministers of Canadian Heritage and Industry to “prepare draft WIPO treaty implementing legislation by February 10, 2004 for review”. They were tasked with this on October 23, 2003.

On November 12, 2003, Parliament was prorogued. The committee was just concluding its first round of hearings on the copyright reform.

Another act failed to pass by December 2003. The Act to establish the Library and Archives of Canada and amend certain portions of the Copyright Act was also called the “LM Montgomery Copyright Term Extension Act”. As Digital Copyright Canada states, “The controversial copyright amendments were eventually dropped as there was a December 2003 deadline for unpublished posthumous works entering into the public domain. The bill didn’t pass the Senate by the end of 2003 [but] passed as Bill C-8 in the following session of parliament” receiving Royal Assent on April 22, 2004.

Once Parliament resumed after being prorogued, the new ministers of Canadian Heritage and Industry “jointly submitted a Status Report on Copyright Reform”. This was presented during sessions on March 25 and 30, 2004.  The Status Report was intended to address immediate short-term issues, which needed to be resolved within one to two years. The Status Report, identified six short-term issues: Private Copying and WIPO Ratification; Photographic Works; Internet Service Providers Liability; Use of Internet Material for Educational Purposes; Technology-Enhanced Learning; and Interlibrary Loans.

From April 21-29, 2004, several meetings were then held by the Standing Committee on Canadian Heritage. Inviting a mix of witnesses including “creators, users, collective societies and intermediaries” to provide “the broadest possible range of perspectives and recommendations” (3). The result of these hearings is the document in analysis. On May 11, 2004, the Standing Committee on Canadian Heritage met and agreed that the draft Report on the Status on Copyright Reform be adopted and entitled Interim Report on Copyright Reform.

Following this, nearly a year later, on March 24, 2005, the Government of Canada announced amendments to the Copyright Act, tabling Bill C-60 on June 20, 2005 under the Liberal government of Prime Minister Paul Martin. However, Bill C-60 died on the order paper in November 2005 when Parliament was dissolved after a motion of non-confidence was passed.

The Conservatives under Prime Minister Stephen Harper took up the modernization of the Copyright Act again, but waited until 2008. It is speculated that public outcry about the expectations of the bill’s contents is what delayed the first reading. After months on the order paper in 2007 and 2008, the Minister of Industry Jim Prentice introduced Bill C-61 on June 12, 2008. The criticism was about its similarities to Bill C-60 and the United States of America’s Digital Millenium Copyright Act (DMCA). Bill-C61 died on the order paper with a general election was called on September 7, 2008.

April 24, 2009, the Minister of Industry, Tony Clement, tabled Bill C-27, the Electronic Commerce Protection Act. This was called the “Anti-Spam Bill” by critics and died when parliament was prorogued on December 30, 2009.

Between July and September of 2009, the ministers of Industry and Canadian Heritage, Tony Clement and James Moore respectively, “held a national copyright consultation that generated considerable praise for its openness and broad participa­tion. … The consultation was lauded as the most successful public policy consultation in Canada in recent memory” (Geist, 2010).

Before a new copyright modernization act was tabled, several other small bills were tabled: Charlie Angus tabled Bill C-499 on March 16, 2010; Bill C-28 was tabled on May 25, 2010 and was very similar to C-27, the Anti-Spam Bill. Bill C-28, tabled by Minister of Industry, Tony Clement, received Royal Assent and was passed into law. (Open Parliament)

On June 2, 2010, Clement tabled Bill C-32 for the modernization of the Copyright Act. It died less than a year later on March 26, 2011 when a general election was called. Later that year, the Industry Minister Christian Paradis tabled Bill C-11 which was identical to Bill C-32. Bill C-11, which was titled Copyright Modernization Act, aims to complete the modernization in the digital age including incorporating the World Intellectual Property Organization (WIPO) Internet treaties that were signed in 1997. In October 2011, there were two days of debate on Bill C-11 addressing concerns of digital locks, hyperlinking, and fair dealing. The Supreme Court made several rulings affecting the legislation, and the process was fast tracked with ministers limiting the time spent on comments in the House of Commons until the bill was passed on June 29, 2012 (Geist).

PART II: Stakeholder Profiles

During the government’s consultation period on copyright reform, they released a Summary of Written Stakeholder Submissions. These were replies to the Consultation Paper on Digital Copyright Issues from June 2001. They received approximately 670 submissions, not counting reply comments, or group submissions “from organizations, coalitions, collectives and corporations.” The types of interests represented were “the various creator and producer groups in art, drama, film, literature, music, and photography; the neighbouring rights groups, and the “user” groups such as educators, libraries and broadcasters. These traditional stakeholders, as well as the information technology sector, were well represented.”

In 2009 there were more public consultations held, but these documents have not been released yet. As Laura Russwurm summarizes, “Government chose to conduct a public Copyright Consultation before reintroducing new copyright reform legislation. More than eight thousand Canadians responded to the call for public input.”

Please note there is a lot of overlap between Industry and NGOs in the creative sector. To clarify, I have included them in the industry category if they are specifically representing the rights or values of a certain group of interests.

Category: Government

The Copyright Act’s modernization is a joint effort between the Department of Canadian Heritage and Industry Canada, and includes consultations with the Copyright Board of Canada, The Canadian Intellectual Property Office (CIPO), which is part of Industry Canada, and additional governmental bodies. The government recognized the immediate need to ratify the WIPO treaties from 1996, which set international standards for the digital environment.

As Fraser Milner Casgrain LLC summarizes, the Copyright Modernization Act’s introduction “states that the amendments are intended to: a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards; b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright; c) permit businesses, educators and libraries to make greater use of copyright  material in digital form; d) allow educators and students to make greater use of copyright material; e) permit certain uses of copyright material by consumers; f) give photographers the same rights as other creators; g) ensure that it remains technologically neutral; and h) mandate its review by Parliament every five years” (2012, pp.2).

The government has stated in the Summary of Written Stakeholder Submissions that “the Canadian copyright regime is based on a fundamental consideration that copyright applies across different media and platforms” and that the WIPO treaties are the starting point for clarifying those rights (section 3.1). The government’s view in the Framework and Consultation papers from 2001 was reiterated in this summary regarding rights holders’ “right of communication to the public for creators as embodied in Canadian law was sufficient to address the corresponding WCT provision”. A number of criticisms of the Framework and proposals were the fact that words like “effective technological measures” or “adequate level of protection” for definitions in the WIPO treaties. However, the reasoning may be that it is often better not to qualify these statements lest it lead to exclusions, as well as becoming technologically outdated quickly.

Bill C-60 was met with a lot of backlash from citizens who believed that industry forces were lobbyingtrying to strengthen all Intellectual Property laws, often, to the detriment of individual Canadians, and Canadian society as a whole” as Digital Copyright Canada, the group behind “Kill Bill C-60”, explains. Since the failure of Bill C-61, “the government had worked to craft legislation that might satisfy external pressures while garnering favourable reviews at home,” writes Michael Geist in the introduction to the 2010 book, From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda. There were two days of debate on Bill C-11 in October 2011 addressing concerns of digital locks, hyperlinking, and fair dealing. Geist writes that the Canadian government is dedicated to finding a copyright reform that is suitable for a variety of stakeholders and should be recognized as “a genuine attempt to strike a balance”.

Category: Industry

The interests of this group are diverse as copyright spans across a number of sectors and professions, not to mention both corporate and non-profit associations and societies. Industry stakeholders include many different sectors such as cinema, television, radio, newspapers, magazines, writers, publishers, playwrights, authors, artists, photographers, cable and internet providers, record producers, musicians, composers, archives and archivists, libraries and librarians, distributors, educators, universities, colleges, teachers, and many more. Two large players are Access Copyright (CANCOPY) and the Society of Composers, Authors and Music Publishers of Canada (SOCAN).

Due to the diversity of these groups and sectors, any consensus is nigh impossible. The Canadian Association of Broadcasters (CAB), which represents multiple groups—including the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), Canadian Recording Industry Association (CRIA), and SOCAN to name a few—submitted a report which basically said on all counts there was no agreement between the constituents.

When it comes to education, the Association for Media and Technology in Education in Canada (AMTEC) supported the proposed reform of treating students equally regardless of how the course was delivered. Today, technology-enhanced learning is an expected part of curriculum content and delivery, even for physical bum-in-seats students. Other educational concerns were with fair dealing and licensing rights. The former “fair dealing” defense in the Copyright Act did not specifically include teaching. In the Interim Report, educators wanted an amendment “exempting education institutions from additional copyright liability for use of information and communications technologies … as a medium for delivering curriculum content, provided there are appropriate safeguard to protect access and distribution.

There did seem to be a consensus across a number of responses to have the Copyright Act remain technologically neutral. This was particularly pertinent to the Canadian Cable Television Association’s (CCTA) submission who stressed the need that “public policy should not favour certain technologies … it should not be selecting the technologies to be used for future service deliver of the Information Highway”. The CCTA does not want its members to encounter additional restraints on broadcast whether it is via the Internet or traditional cable methods.

Rights holders across the board expressed concern over digital locks. Creators want to be remunerated for their work, but there are concerns that technological protection measures have not proven to be effective.

From the corporate side, in TELUS’ response submission, they expressed concern for the corporate side that technological rights management may go too far, “distorting the balance … between the interests of rights holders and the interests of users.” TELUS expressed further concern that Canada may adopt a model similar to the USA which “reached beyond the traditional purposes of copyright law to prohibit even devices and methods, including software and hardware, that may have the unintended capability of circumventing copyright protection … which may lead to the development of devices and/or methods that are able to overcome other protective technologies and methods”. TELUS’ ‘balanced’ statement is quite different from IBM Canada, who “has been actively seeking the implementation of the anti-circumvention measures of the WIPO Treaties” and feels that “measures to prohibit tampering with copyright management information will facilitate online commerce and the digital distribution of copyrighted works.” IBM states that “any legislation providing such safeguards should not impose an obligation on third parties (such as manufacturers)”.

The response from the Canadian Library Association (CLA) on digital locks summarizes many groups position: “Introducing sanctions that would make it illegal to manufacture or import devices that could be used to circumvent technological measures used by copyright owners to control access to their works would effectively give the copyright owner unrestricted authority to determine the extent of protection provided to a work, irrespective of any limitations that might otherwise be provided for by statute. In effect, the power of the technology available to the copyright owner would supersede the authority of the Copyright Act. From a public policy perspective, an outcome of that kind has to be considered unacceptable.” To put it another way, the copyright owner of the work “would be in a privileged position of being able to deny the user the possibility of making use of the work in a manner that by statute would be deemed a non-infringing use.” Most of the user-end groups and collectives, particularly educators, librarians, computer scientists, researchers, are in alliance with this view. The digital lock statutes in the Bill appear to supersede the rights of fair dealing.

The Internet Service Providers (ISPs) had some recommendations about notice-and-notice versus notice-and-takedown. Most groups who advocate for the user-end prefer a softer approach. Electronic Frontier Canada (EFC) echoed the government’s conclusion that “a limitation of liability for ISPs should not be conditions on an affirmative obligation to monitor the activities of its users”. The ISPs were concerned with additional cost and time that would be required to monitor infringement, and how this cost would be absorbed with the already high rates users face. The Canadian Association of Internet Providers (CAIP) also put its support behind the government’s framework of common carrier exemption for ISPs as “it is likely not feasible for ISPs to attempt to monitor content. Moreover, in the copyright context, the copyright status of a work or the legal relationship between the right holder and the user or the work will often be unknowable to the ISP.”

Category: Non-Government Organizations

As already mentioned, many of the Industry-specific membership organizations are registered non-profits or NGOs. Most NGOs stress the need for balance between rights of the creators and rights of the users. This echoes many other statements to that affect.

The Canadian Conference of the Arts (CCA) has a membership of more than 200,000 people “composed of artists and cultural workers, arts organizations, labour groups and collectives, arts educators, cultural industry organizations, and concerned citizens from all across Canada.” In their submission feedback dated October 10, 2001, they mentioned that some CCA members urged “providing moral rights for performers and providing a term of life plus fifty years for photographs taken by corporate owners.”

Electronic Frontier Canada (EFC), a subset of the global Electronic Frontier Foundation (EFF) had created a form letter which the government received hundreds of. Of particular interest is the circumvention liabilities—EFF/EFC want an exception of circumvention for “legitimate purpose” similar to Fair Dealing, and protection for “innocent circumventors”. The Public Interest Advocacy Centre (PIAC) agrees with these concerns.

Category: Other

It is important to note the involvement of citizens and the rights of users when it comes to copyright. Copyright law must protect the creators obviously, but the rights of citizens are also important.

One issue of large concern in bills C-60, C-61, and C-11 was the policy around digital locks (also called digital rights management, or DRM). Users want to be able to transfer material they have paid for onto whatever devices they have and DRM essentially locks the work in question to a certain device or brand. A good example is the use of Amazon Kindle and their ebook format. This format is not supported by any other eReaders because Amazon will not allow ebooks purchased from Kindle to be read on any other devices other than Kindle. With Bill C-11, if a user is to break a digital lock to read a purchased ebook on their iPad, this ‘illegal’ act effectively trumps any other copyright or legal policy.

Stakeholder Conclusion

I believe that the user sector has been the most successful in the process. The feedback from the public and the consultation processes undertaken since 2001 and onward in 2005, 2009, and 2011 (see Part I) are testament to that. While Bill C-11 was not perfect, the Canadian Copyright Modernization Act is certainly a long-awaited step in the right direction.

PART III: International Comparison

Although the Canadian Copyright Act of 1911 was modeled on the British Copyright Act, during the creation of Canada’s Copyright Modernization Act (Bill C-11), comparisons to the United States’ Digital Millennium Copyright Act (DMCA) were much more prevalent. The conclusion of the Framework paper from 2001 produced by the government stated that “by moving with deliberation, the Canadian government can benefit from the lessons learned in other countries as it moves forward with modernization of the Copyright Act.”

What has been of particular concern is the policy surrounding digital locks, particularly in the US’ DMCA. Howard Knopf in his article Internet Copyright Reform Initiatives from Canadian Government, published in July 2010 in Internet and E-Commerce Law in Canada, said that the US’s DMCA as a prime example of how our neighbours to the south have shaped our statutes.

Regarding Bill C-11—now the Copyright Modernization Act—Michael Geist wrote, “if you look at some of those really tough issues … I think there’s a genuine attempt to strike a balance, and I think the bill is quite good,” citing examples of “expanded fair dealing, new consumer exceptions, new rights for user generated content, the notice-and-notice approach for ISPs, and the a cap on non-commercial statutory damages … the decision to reject demands for website blocking, notice-and-takedown, an iPod tax, and disclosure of subscriber information.” However the second part of Bill C-11 does not address the blanket ban on breaking digital locks. Geist critically called the digital lock legislation the “Reduce U.S. Pressure Copyright Act” whereby American pressure can shape Canadian laws when the US indicates that they don’t want to ‘sour’ trade and border relations with Canada, or elevate us on their piracy watch list. Geist believes that this is the main reason that a more balanced approach has not been taken to digital rights management, despite the USA loosening their own restrictions for certain circumstances.

Geist summarizes a doctoral student’s research into the issue, stating that in a discussion with then-Industry Minister Maxime Bernier’s chief of staff, Michele Austin, she stated “the decision to introduce U.S.-style DMCA rules in Canada in 2007 was strictly a political decision, the result of pressure from the Prime Minister’s Office desire to meet U.S. demands.” Geist goes on to say that “Canadians who spoke out against the U.S. approach during the copyright consultation, and even Industry Minister Tony Clement’s reported support for a more flexible approach, it would appear that the PMO’s decision to side with Canadian Heritage Minister James Moore in requiring strict anti-circumvention rules reflects a long-term decision to prioritize U.S. interests on copyright ahead of the national interest.

“The [DMCA-style policy] is particularly discouraging since it is unnecessary” writes Geist, who believes “a compromise could be struck that provides legal protection for digital locks, is WIPO-compliant, and preserves the copyright balance.” As Laura Russwurm explains, “The problem is that the law does the worst possible thing: it allows digital locks explicit supremacy. Which means DRM over rides everything else. … This law will make it illegal to circumvent DRM.”

PART IV: Documentary Policy Discourse Analysis

The Interim Report on Copyright Reform was intended to address immediate short-term issues, which needed to be resolved within one to two years, including WIPO Ratification.

It came about due to Bill C-32 in 1998, which included a part entitled “Section 92” that required a report on the Act’s progress by 2003. After several setbacks (as detailed in Part I of this assignment) in March 2004, the new ministers of Canadian Heritage and Industry, Hélène Scherrer and Lucienne Robillard respectively, “jointly submitted a Status Report on Copyright Reform” during a session of Parliament on March 25 and 30, 2004. The Status Report identified six short-term issues: Private Copying and WIPO Ratification; Photographic Works; Internet Service Providers Liability; Use of Internet Material for Educational Purposes; Technology-Enhanced Learning; and Interlibrary Loans (pp. 3).

From April 21-29, 2004, the Standing Committee on Canadian Heritage then held several meetings on the issues raised in the Status Report. The Committee invited a mix of witnesses including “creators, users, collective societies and intermediaries” to provide “the broadest possible range of perspectives and recommendations” (Interim Report, pp.3). The result of these hearings was incorporated into the Status Report and on May 11, 2004, the Standing Committee on Canadian Heritage met and agreed that the draft Report on the Status on Copyright Reform be adopted and entitled Interim Report on Copyright Reform.

The first short-term concern was the 1996 WIPO Treaties, which were to set standards for global ratification of certain Internet policies. Canada finally brought these treaties into affect with Bill C-11 in June 2012.

Another short-term concern was ‘Photographic Works’. The rule, prior to change, was that “the author is the first owner of the copyright” with some additional exemptions for commissions and term of copyright protection. “The WIPO Copyright Treaty calls for the minimum standard term of “life plus 50” for photographs” states the Interim Report (pp. 5). Stakeholders included photographers, news agencies, and archivists, all of whom had certain recommendations made for their specific concerns around ownership of photographs.

The short-term issue of ‘Internet Service Providers Liability’ deals with the degree to which ISPs can be held accountable for the transmission of copyrighted materials. ISPs were opposed to liability and “argue they have no practical way to monitor, scan and assess copyright ownership of materials transmitted” and that it could “invade subscribers’ privacy and would be time consuming and costly”. Canada operates on a notice-and-notice system, and the Interim Report suggested that ISPs exempt from liability would be those that acted as intermediaries and those that comply with the Canadian Charter of Rights and Freedoms, noting that “notice-and-notice” is not enough and that Canada should shift to “notice and takedown”.

‘Use of Internet Material for Educational Purposes’ and ‘Technology-Enhanced Learning’ are two concerns over Fair Dealing and how it applies to educators, learning institutions, and licensing of materials. Moral rights, and types of licensing (voluntary, extended, or compulsory) were some of the issues raised. Rights holders “favour licensing of information and communications technologies for educational purposes” and authors and publishers expressed the “need to be remunerated for their works”. All parties expressed concern that “technological protection measures have not proven to be effective” (pp.16). The Interim Report recommended extended collective licensing used for educational purposes with no fee for publicly available material.

The concerns of ‘Interlibrary Loans’ were mainly to do with outdated methods and policy preventing librarians from serving the needs of their patrons in a time- and price-efficient manner. These issues were traced with copyright owners concerns over technological transmission of works and digital rights management. Canada noted that other obligations from international rights treaties such as Berne and Rome Conventions, NATFA, and WTO agreements establish minimum standards.

In conclusion, the Report states that it is “not an end in itself, but a starting point. The Committee is well aware that much work remains to be done” (pp.21). As the bulk of my chronology (part I) has shown, this was the truth.