Updating Canada’s copyright regime must be a central plank in Canada’s innovation agenda. The Conservatives have a golden opportunity to “get it right” when it comes to copyright. However, if Bill C-32 is going to get through the legislative process the government will need to show some badly needed political maturity. This bill will survive or die based on the willingness of the government to compromise.
The stakes are high. If the Conservatives miss the mark, there will be serious implications for Canada’s innovation, artistic and education communities. Failing to pass this legislation will make Prime Minister Stephen Harper look ridiculous in the eyes of our international partners.
On the plus side, Canada is in a good position to get is right because we can learn from other jurisdictions who have attempted various solutions to restore copyright in an age of unprecedented technological upheaval.
What is clear is that attempts to impose regressive copyright—criminalizing consumers through lawsuits and “Three Strike” laws—have been an abject failure. After 15 years, the digital “genie” has not been put back in the bottle.
The Social Research Council delivered this message in a recent report, to the World Intellectual Property Organization. The report concludes: “We have seen no evidence—and indeed no claims—that enforcement efforts to date have had any impact on the overall supply of pirated goods. Our work suggests, rather, that piracy has grown dramatically driven by…high media prices, low local incomes, technological diffusion, and fast-changing consumer and cultural practices.”
In the digital realm, it’s clear that consumers will access works whenever and however they want. Attempts to limit this access have just created black markets for cultural works. Instead of criminalizing consumers, we need find ways of remunerating artists for their work.
The key elements of progressive copyright are three-fold: shutting down the black market trade while ensuring access to consumers and remuneration for artists.
Unfortunately, Bill C-32 fails on these key issues of access and remuneration. In terms of access, the Conservatives have been promoting a chimera of consumer rights—fair dealing, the mash-up provision, time shifting and the right to make personal copies. But the bill is explicit that these rights will not be exercisable if a digital lock is in place.
It is one thing to ensure strong legal protection so that locks cannot be broken to pirate or counterfeit works. It is a whole other matter to tell Canadians that rights that are guaranteed in the non-digital realm can be arbitrarily overridden by a corporate computer code. This arbitrary denial of reasonable access goes beyond our obligations under WIPO and is at odds with more reasonable digital lock provisions supported by many of our trading partners.
Limiting access is most glaring when it comes to long distance learning. If Bill C-32 passes unamended, all class notes for students involved in long-distance must be destroyed 30 days after the course ends. This provision will damage the options for long distance learning while doing nothing to remunerate the creators of these education works. It is the digital equivalent of book burning.
In terms of remuneration, Bill C-32 is even more backward looking. The bill erases a number of badly needed revenue streams while undermining longstanding principles of collective licensing.
Nowhere is this more obvious than in the government’s over the top attack on the digital copying levy. The Conservative claims about a “$75” iPod “tax” on everything from memory sticks to automobiles is just bunk. The private copying levy exists in many countries to balance off the rights of artists to be paid and the desire of consumers to make copies. The government’s war on the levy will cost Canadian musicians an estimated $35-million in lost revenues in the coming year.
When you add to this attempts to strip other revenue sources like the broadcast mechanical rights, Canadian artists are facing the loss of well over $40-million. Without guaranteed revenue streams artists will be forced to lock down their content. It’s a lose-lose prescription for artists and consumers.
There are numerous other issues in the bill that must be addressed. For example, the fair dealing provision for education, needs to be clarified otherwise we will see long, frustrating bouts of litigation between creators and educators.
So does this mean Bill C-32 should be scrapped? Certainly not. The question, however, is whether the government is willing to compromise on its hard line positions on access and remuneration. The New Democrats will bring forward amendments to address the shortcomings in this bill. Our message to the government is simple: park your uber-partisan agenda and let’s get on with the work of getting it right with copyright.
NDP MP Charlie Angus, who represents Timmins-James, Ont., is his party’s culture critic.
The Hill Times
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