Earlier this week the Canadian Parliament’s Standing Committee on Industry, Science and Technology (INDU) released a report with 36 recommendations on the statutory review of Canadian copyright law. The report caps a year-long study, including a public consultation and committee hearings that included a variety of stakeholders.
The document makes progressive recommendations that support a more balanced copyright regime. Michael Geist provides an overview, including the following key findings that, if pursued, could fortify and expand user rights under the Canadian copyright system:
- expansion of fair dealing by making the current list of fair dealing purposes illustrative rather than exhaustive (by using more open ended legislative language like “such as”),
- rejection of new limits on educational fair dealing with further study in three years,
- retention of existing Internet safe harbour rules,
- rejection of the FairPlay site blocking proposal with insistence that any blocking include court oversight,
- expansion of the anti-circumvention rules by permitting circumvention of digital locks for purposes that are lawful (ie. permit circumvention to exercise fair dealing rights),
- extend the term of copyright only if ratifying the USCMA and include a registration requirement for the additional 20 years,
- implement a new informational analysis (also known as text and data mining) exception,
- further study of statutory damages for all copyright collectives along with greater transparency,
- adoption of an open licence rather than the abolition of crown copyright (i.e., putting the works directly into the public domain).
The INDU report is a breath of fresh air for copyright policy making, especially considering the recent adoption of the backward-looking reform in the EU Directive on Copyright in the Digital Single Market, which included the provision that will require nearly all for-profit web platforms to get a license for every user upload or otherwise install content filters and censor content, lest they be held liable for infringement.
Creative Commons and Creative Commons Canada provided input into the consultation on the copyright reform in Canada. In May 2018 we submitted comments to INDU. First, we said the Canadian copyright term should stay where it is; there is no reason to consider any further extension of copyright. Second, we urged the government to protect and strengthen limitations and exceptions to copyright, as these important measures ensure balance in our legal framework. Third, we advocated for Canada to maintain and maintain and improve its existing safe harbour protections with regard to intermediary liability and copyright, noting that a healthy commons requires a healthy ecosystem of platforms and infrastructure for sharing. Finally, we urged the government to continue to support policy efforts to ensure open access to publicly funded resources, including clarifying that we have a right to use and re-use works produced by our government.
Additionally, in October 2018 Creative Commons Canada appeared before the Committee to provide testimony and answer questions on recommended changes to copyright that would promote creativity and expand the commons. In addition to the issues mentioned above, CC Canada touched on other areas for copyright intervention, including permitting creators to reclaim control of copyright in their works 25 years after assignment, protecting fair dealing, especially for education, expanding user rights to kickstart cutting-edge research related to machine learning and artificial intelligence by ensuring that “the right to read is the right to mine, and reforming the Crown Copyright regime to ensure that all Canadians have the right to access and re-use government produced works.
We’re happy to see many of these points included in the recommendations released this week, including the resistance to extend copyright term, the protection and possible expansion of limitations and exceptions like fair dealing, the ability for authors to reclaim their rights, and the recommendation to include a copyright exemption for text and data mining.
On a related note, the Committee was right to put an end to the idea floated last year by Bell and a group of Canadian telecommunications companies to create an “Internet Piracy Review Agency.” Even though the Canadian telecommunications regulator denied this application in October last year, the INDU Committee reinforced the ruling by stating that “it is for the courts to adjudicate whether a given use constitutes copyright infringement and to issue orders in consequence.”
The Canadian report offers a glimmer of hope that copyright policy can be furthered in such a way to promote creativity and innovation, while at the same time protecting crucial user rights. This is contrasted with the final outcome of the European copyright directive, which reflects a disturbing path toward increasing control of the web to benefit only powerful rights holders at the expense of the rights of users and the public interest.
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