Michael Geist:
This is Law Bytes, a podcast with Michael Geist.
Dan Ruimy:
Thank you Mr. Speaker. I have the honour to present in both official languages the 16th report of the Standing Committee on Industry Science and Technology entitled statutory review of the copyright act pursuant to Standing Order 1 0 9. The committee request that the government table a comprehensive response to this report. Mr. Speaker I’d also like to thank all committee members, all those that appeared before committee, those that took the time to meet with us and our five city tour, and those that took the time to submit online documents. The committee consulted a broad range of stakeholders to ensure as many perspectives could be considered. In all we held 52 meetings her two hundred and three sixty three witnesses collected one hundred and ninety two brief and received more than 6000 e-mails and other correspondence. I also want to thank our committee’s clerk, analysts and all the supporting staff for doing such an amazing job keeping us on track through such a lengthy and complex study. Thank you.
Michael Geist:
In December 2017, the Canadian government launched its much anticipated and much lobbied review of Canadian copyright law, tasking the Standing Committee on Industry Science and Technology to lead the way. After months of study and hundreds of witnesses and briefs the committee released its review with 36 recommendations earlier this month. The report takes a decidedly evidence based approach and is notable both for what it recommends and rejects. Recommendations include expanding fair dealing and adding flexibility to Canada’s digital lock rules. While the committee rejected a Web site blocking system and a proposal to exclude education from fair dealing where a license is otherwise available. I had the chance to appear before the committee. My remarks were the subject of an earlier Law Bytes podcast as did this week’s guest Osgoode Hall law professor Carys Craig. Professor Craig is one of Canada’s leading copyright law experts and she joins me to help sort through the report and what it means for the future of Canadian copyright law.
Michael Geist:
Carys, welcome to the podcast.
Carys Craig:
Thank you for having me on.
Michael Geist:
After a year of studying the copyright review with hundreds of witnesses and briefs the Standing Committee on Industry Science and Technology that everyone just calls INDU has finally released its report. Why don’t we start with a background of how this came about: so why was there a copyright review and who exactly is INDU.
Carys Craig:
Okay great. So yes this is the culmination of a five year review that was actually mandated by the 2012 Copyright Modernization Act. And so when that was passed itself the result of many years of consultation and consideration of potential reforms. The notion was that it would be worth revisiting in five years to understand the way in which the act was taking shape how it was being applied. And of course bearing in mind the sort of rapidity of technological change. So five years rolled around and the committee was struck in order to conduct this review and that itself took some considerable time. So it’s only now in twenty nineteen of course that we’re finally receiving this report.
Michael Geist:
Okay. So the the initial law or at least the reforms back in 2012. Got to review this every five years it takes a couple takes some time to get it going. They went with INDU and so that’s the industry side. And I imagine that there was some debate at least internally and certainly externally about which committee amongst the potential committees I suppose that the government that the House of Commons has that they chose to conduct this study.
Carys Craig:
Yes that’s right. So in Canada there are two ministries that kind of have an eye on copyright policy. So that is the Heritage and the Industry Science and Technology Ministry. And so there’s always been a degree of and I think maybe it’s fair to say tension in terms of who takes the lead and certainly what we’ve seen over the years is that both ministries have a kind of different approach to copyright policy and so that means it can make kind of a vital difference which industry or which ministry sorry takes the lead in copyright review and copyright reform, which is of course exactly what we’ve seen in this particular process.
Michael Geist:
Right. So industry led but there is also a study report that the committee for Canadian heritage, a standing committee of Canadian Heritage released. It was supposed to be on artists remuneration but has at least been painted by some as the copyright review or a parallel copyright review. I don’t believe it is. Actually I know it isn’t. The copyright review is the report that INDU released. Can you walk us through a little bit the procedural side of the story that led that led to this Heritage study.
Carys Craig:
Sure. Well I mean this is just as far as I know as far as I’ve been able to glean. But certainly the industry committee was tasked with conducting the sort of authoritative parliamentary review of the Copyright Act and perhaps in some ways as a salve to any criticism that should have gone to heritage or heritage ought to be involved I don’t know, and the industry committee requested an advisory sub report. I think that’s the best way to understand it. And from the Canadian Heritage Department and so the the sense was that this was to be as you said an examination of remuneration models for artists and creative industries looking at things like rights management, considering things like new access points, streaming and and reflecting then on some of the challenges and opportunities presented by these new technologies in light of you know that the economic interests of artists and creative industries. Now there’s an awful lot of interesting work being done on the ways in which access to content is shifting, consumer behaviours are shifting, and the way in which new technology is providing new opportunities or avenues for remuneration or exploitation at the same time as it’s threatening old ones.
Carys Craig:
So there really was I think a lot of scope to produce a very interesting, thorough survey of these changes in a way that really could have informed a copyright review process and really made sure that it was a sort of modern review process that had its eye on where things currently stand in technology and in the economy of the cultural industries. As you suggested that’s unfortunately not what we got and I think the reason why people see this review report from heritage as a parallel report is that it essentially seemed to cover the same ground as the industry committee was was covering. But of course to do it from a very different perspective and with a very different result. And I think that at the end of the day is just unfortunate. And it’s a missed opportunity. But I think the main thing is of course that the authoritative review comes from the industry committee.
Michael Geist:
All right. I’d agree with that. So now that we understand what that Heritage study is or isn’t, let’s talk let’s talk about the authoritative review the actual Canadian copyright review conducted by INDU. For me it was striking when you took take a look took a look back at it just how broad it was truly ran for a long time. There were hearings held in cities across the country something you didn’t see with Heritage, multiple phases and both of us participated in the third phase where they brought in some of the academics and the like and it touched on just about every major copyright issue. I wonder what some of your top line impressions or key takeaways were from the report.
Carys Craig:
Well certainly it was very broad. It was extremely thorough and it really is impressive I think the number of people who were able to sort of weigh into the review process, who were able to make their submissions, have their testimony heard, and ultimately the fact that really everyone who provided oral or written testimony is cited in the report. So given this vast landscape that this covers and the number of perspectives that were considered and I think the review although it’s long actually does a really nice job of sort of crystallizing the primary or the main issues that are facing as when we’re thinking about copyright law today and and and creating a sort of overview of the current landscape that is going to be very valuable I think going forward. And it’s not surprising when we think about the process that led up to the 2012 act itself. As you know there are many bills there was much consultation that took many years and it was an attempt to to bring Canada quote unquote up to date with technological developments by finally sort of ratifying the 1996 Internet treaties and following the lead of the US Digital Millennium Copyright Act. And so there was an awful lot that was done in 2012. That itself created lots of new lots of new considerations and concerns and copyright law.
Carys Craig:
So first of all we had new protections for digital locks which we’d never had before. We had a notice and notice system that was a sort of Canada made solution to navigating copyright for Internet service providers. We had a new cause of action called enablement infringement for the provision of network services that primarily enabled copyright infringement by users. And then on the other side of the ledger we had an expanded fair dealing defence with new enumerated purposes of education and parody and satire and we had lots of new exceptions for common consumer uses like making backup copies and time shifting TV programs and making user generated content. So there was a lot there and there was a lot that needed to be revisiting. And of course there were people who were happy with one side of that and not with the other.
Carys Craig:
And so if nothing else what this five year review gave us was an opportunity for everybody to kind of come out and talk about the good and the bad and the ugly as they saw it in that 2012 act and hope that they could maybe expand what they saw as good and roll back what they saw as bad. And so you know there was a lot at stake here and there were lots of people with interests and that they wanted to be represented around the table.
Michael Geist:
Right. I’m glad you you enumerated so many of the changes that took place in 2012. I’m often struck by those that claim that Canadian copyright laws are woefully out of date and we haven’t made changes in a long time and as you went through that very long list of changes it was a true overhaul in 2012. We are still quite clearly grappling with very recent changes that were comprehensive in nature and so was it’s worth noting the committee. So what did we get into a few of those changes that took place in 2012 that then became focal points for discussion at the committee and as part of their report. There are a few issues I think that took more time out because any actually issue that took more of the committee’s time and was a bigger focal point than the issue around education and copyright which ironically enough isn’t solely a 2012 copyright reform issue. But leaving that aside, dozens of witnesses coming from across the landscape: education groups, authors, publishers, copyright collectives all presenting their case on the impact of the state of Canadian copyright law and what it means for education in particular educational copying. Where did the committee land after hearing all these different perspectives?
Carys Craig:
Well maybe just starting at the end and where did the committee land. Because this is really I think for me one moment in the report where I would have hoped I think for something more like a resolution or a substantive recommendation and instead I think what we see in this respect is that the committee hedges its bets but it refuses to endorse really either the proposals that were made by Access Copyright and the publishers in terms of limiting fair dealing but also it doesn’t give the educational institutions you know absolute or unbridled support for their assertions that their practices are lawful and consistent with fair dealing. And so we end up actually with a recommendation that the Government should consider facilitating discussions between the education sector and copyright collectives to try to build a consensus around these issues going forward. And of course that’s with a view I think in particular to the fact that there is ongoing litigation between Access Copyright and York University. And that remains to be resolved before the Federal Court of Appeal and may well proceed to the Supreme Court of Canada.
Carys Craig:
So I think actually the recommendation is perhaps appropriately cautious or responsive to the fact that these issues are very fraught and ongoing. On the other hand if there there’s a suggestion that the courts are I think the committee uses the language appropriately skeptical or that the courts have appropriate skepticism about the assertions of educational institutions claiming that their practices are systemically at fair dealing practices or lawful practices in relation to educational materials and I personally find that unfortunate because it kind of weighs into into the issues or steps into the fray. On the other hand, I think the positive thing is that the committee expressly refuses to endorse the proposal that was put forward by Access and by other publishers that we roll back the changes that were made to fair dealing in 2012. So specifically we added education as a purpose which means that something where someone is engaged in education broadly speaking has a purpose and we can move the analysis of the lawfulness of use onto the question of whether that use is fair. Now as you suggested that actually wasn’t the critical moment for the expansion of fair dealing in Canada. That moment actually came. Well first with the Supreme Court’s ruling in the CCH case and then subsequently with a ruling in the Alberta case which basically said that educational classroom uses of copyright protected materials could be fair dealing for the purposes of private study in certain circumstances. And so the argument over whether education should be enumerated or not enumerated seems to miss the point that the Supreme Court articulated a broad user rights focused understanding of fair dealing whether it’s for a private study or for education.
Michael Geist:
Right. And so I think you’re right about the role that the Supreme Court has played in influencing where those policies are. You know for me the the striking comment coming out of the committee was the reference to the fact that it may be technological disruption and technological change that is driving change in the education sector far more than fair dealing has which you can pick whichever lines you like out of the committee it’s clear they were trying to strike a bit of a balance or at least recognize that there were arguments that they were hearing on both sides of it.At a certain level, When you look at a couple of the other recommendations they had which included don’t conduct a review every five years and get us more data through Statistics Canada and even Canada Research Chair focused on this stuff. It’s pretty clear that the committee itself was torn in part because it feels it’s early and the amount of data that was out there was itself at times conflicting and they wanted to I guess take a bit more time, see this play out in the courts as you mentioned we’ve got this court case. You’ve got the big court case playing itself through the courts as well.
Carys Craig:
Yeah. No I think that’s right. I think that was a very important statement by the committee to recognize that the claims that were before it being made by the Canadian publishers and others that they’re suffering and drastically at the hands of the expanded fair dealing for educational uses the fact that the committee didn’t endorse that and didn’t accept that and pointed to the fact that there are many other causes and other changes that are taking place in the educational landscape around the use of materials. So open educational resources and the use of digital bundling. And also I think the the the fact that our libraries are so much more savvy about negotiating copyright licences and there are easier ways to do this. Certainly the landscape around educational materials has changed dramatically over the past 10 or 15 years even over the past five years. And so you know the committee is right to be wary of wading in and coming up with a kind of one size fits all solution to this. On the other hand given the amount of attention that was paid to this at the time and during the hearings and the amount of evidence that has been presented by all sides even if overwhelming it’s ultimately I think disappointing that we’re still sort of waiting for any kind of definitive resolution on something that is so pressing in the educational environment today.
Michael Geist:
Yeah that’s fair. But I would note that as part of the committee’s recommendations that that was not the only discussion they had around fair dealing and while they were being pushed to roll back fair dealing with respect to education and clearly rejected that as an approach, what they also did was expand fair dealing effectively with a call for more a more flexible approach. Could you comment on that and why it hasn’t got a lot of attention at least in some of the media coverage but certainly struck me as perhaps one of the most notable recommendations the committee made.
Carys Craig:
Absolutely. No I agree. You know so we’re talking about broadening fair dealing so that it is no longer tied just to specific enumerated purposes in the Act but actually is capable of being applied more generally or more flexibly to encounter new kinds of uses that are fair according to all of the normal fairness factors but which might not be squeezed into one of the enumerated purposes. And this is something that’s very close to my heart it’s something that I wrote my master’s thesis on you know coming up 20 years ago and I have consistently been writing and arguing and advocating for the expansion of fair dealing so that we don’t tie it to particular enumerated purposes. And so for me certainly this is one of the most important recommendations and something I’m very happy to see and I’m also I think quite happy to see that there hasn’t been a huge reaction to it because I think that tells us that the time for this has come. That you know certainly against the backdrop of Supreme Court jurisprudence that has urged a large and liberal reading of those purposes. And then just looking at the legislative process involved and trying to add new purposes like education like parody and satire and then lots of news specific enumerated exceptions for backup copies or user generated content, I think it’s become clear to everybody that the the better way to go is just to add two simple words “such as” to the fair dealing provisions and really allow them to operate in a way that is not only flexible right now but is flexible over time and as technologies evolve.
Michael Geist:
I think that’s right. It is striking that was certainly one of the big issues that was raised back as part of the 2012 reforms as the committee was thinking about as you mentioned several new exceptions “such as” approach one that would open it up to any purposes because at the end of the day the fairness isn’t really dictated by the purpose but rather by a series of other factors that are considered, what was a far better approach when that would be in a sense technology neutral and better better able to adapt to changes. It’s nice to see the committee recognize that several years later even as it has also identified yet another fair dealing effectively fair dealing purpose for informational analysis to sort of support A.I. Now that’s not the only revisiting of a 2012 reform that has some connection to fair dealing. So there was an argument for “such as” back in 2012 wasn’t accepted, it’s accepted by the committee now. Another area where the committee is in effect had a bit of a rethink from 2012 has to do with those anti circumvention rules. The digital locks that you mentioned earlier. Can you tell. Can you tell us a bit what the committee now says we ought to be thinking about when it comes to digital locks.
Carys Craig:
Sure so this is another really important recommendation I think. And again something that I’ve been thinking and arguing about for for several years now as you know. And so the question is the extent to which we should be protecting digital locks or technological protection measures and under the Copyright Act and the extent to which that additional layer of protection for digital locks should potentially subvert I think the underlying purposes of copyright or the shape and scope of the rights that the Act protects. So that’s to say you know we’re carefully tailoring and debating the scope of any particular owner’s right. And then the scope or the reach of user rights. And then along come digital locks and they get layered over the top and they get protected no matter what they’re protecting underneath. Or to what extent and what that risks doing I think is preventing people from engaging in otherwise lawful uses with the content that’s behind the lock.
Carys Craig:
So being unable to access that content to use that content for things that are fair dealing purposes or that are fair or lawful whether it’s user generated content, whether it’s criticism or review, or access in public domain materials contained in the work. And this has presented concern over time. I think there was a lot of mobilizing around this in the lead up to 2012. We saw different iterations of the anti circumvention provisions in different bills in the lead up to 2012. And you know I was disappointed at that time that in the end what we did was create a provision that essentially just mirrors what the U.S. had asked for and protects under the Digital Millennium Copyright Act. And so that is there weren’t exceptions for non-infringing uses and there weren’t provisions to ensure that people could continue to access work for non infringing purposes and there weren’t exceptions to ensure that people could actually get their hands on the kinds of devices that would allow them to do so anyway. So all of this was very problematic and I’m very pleased to see the committee now kind of revisit the issue and to acknowledge that there is a problem there. That although there might be good reasons to protect TPMs that it doesn’t make sense for us to be protecting them when what they’re essentially doing is preventing someone from doing something that is authorized under the Copyright Act. And so the committee points specifically to facilitating maintenance repair or adaptation of a lawfully acquired device for non infringing purposes but in the observations they make them more broader observation that people should be able to engage in authorized acts and lawful acts and that TPM shouldn’t prevent them from doing so.
Michael Geist:
I agree that the right to repairs clearly which was driving some of that discussion at the committee but their comment is certainly far broader than that as part of their observations and given given how how much attention this issue got back leading up to the 2012 reforms, it was was undoubtedly one of the very top issues that Canadians were talking about, yet ultimately rejected I think largely due to pressure from the United States. It’s nice to see it revisited and nice to see the committee coming around to where I think many Canadians were back when they first instituted these rules. You know one of the other areas that the committee touches on that has also attracted a lot of attention and it’s attracting a lot of attention now has to do with copyright term. I was speaking with Myra Tawfik just last week about copyright term and it’s the extension as part of the USMCA. The committee talked about term too. What did it have to say?
Carys Craig:
Yes. So this is another place where I was both surprised and very pleased to see the committee actually address this as though it’s not a fait accompli as though it’s not something that Canada necessarily has to do by virtue of its international obligations and that is extending the copyright term from the life of the author and 50 years to the life of the author and 70 years. And you know we saw in the Heritage report and the suggestion that no one had really objected to this and that we recognized it was something that was going to have to happen. And so the Heritage report just recommended that it should happen. And so what’s really refreshing I think and looking at the industry review is a critical engagement with that assertion. So first of all questioning or accepting that you know maybe it has to happen, but we should ideally not to do it. And therefore if it does happen we have to find ways to mitigate the costs or the harms that this term extension would cause in Canada. And so you know first of all that just is a recognition of the importance of the public domain of the significance of having a shorter term as we can possibly have to ensure that works fall into the public domain and are available to be freely used and to circulate and to be reused once copyright ends. And then there’s some creative sort of thinking around how we might mitigate the harm of a term extension if it isn’t deemed necessary. And so here you know because the international baseline requirements in the Berne Convention are life plus 50 years. What that means is that there might be some room for us to create conditions for a copyright protection beyond that term that that we wouldn’t be allowed to have during that term.
Carys Craig:
Right. So whereas we’re not let’s to formalities like registration for life plus 50 maybe for those extra 20 years we could require that copyright owners register or reregister their work maybe pay a fee for that additional time that there might be other formalities so that it’s not just an automatic continuation of term, but is actually a sort of surplus benefit that we make available on certain conditions. And you know there’s some good economic sense behind that kind of proposal. One would assume that if there’s an economic value ongoing for the exploitation of a particular work that the copyright owner will be willing to register and to pay and and so that will probably still be available for works and you know that’s to my mind still unfortunate because it takes valuable work out of the public domain for an additional 20 years but at least we know what those works are we can look them up on the register and we can subject them to particular conditions or costs associated with that added benefit. And meanwhile the works are not still being exploited can be freely used and so we avoid some of the orphan works problems and just the the lost benefits and that we suffer when we re-enclose those works and behind copyright ownership a point where nobody even knows who the owner is.
Michael Geist:
A really creative approach that addresses the concern that some have that they want to have longer terms for certain works but in many other instances we avoid the orphan works problem any other instances the work simply entered into the public domain. So it’s it’s nice to hear that both with respect to flexible fair dealing, digital locks, copyright term, the committee with a for a forward looking approach and in a sense revisiting some of the kinds of approaches that we’re taken a number of years ago. Is there anything else in the report before we wrap up that kind of caught your eye and surprised you either for the good or even perhaps not for the not so good.
Carys Craig:
Yeah. I mean I think it just in terms of the general tone I agree with you you said earlier about the emphasis on data gathering and evidence based policymaking and so for me that’s kind of a big take away from this and not unrelatedly, I think is the committee’s resistance to the urgings that I’m sure it heard from many people before it that Canada consider following the EU lead with something akin to the European digital single market directive and in particular Article 17 of that directive that has been so controversial which is about of course online content sharing service providers and essentially making them liable for the content that’s uploaded by their users. And I think what the committee does here is indicative of what’s good about the report generally which is to say this is a controversial area. We understand there are particular actors in particular people who would like to see copyright move in this direction, to kind of responsibilize these service providers and ultimately make them liable for content that shared or force them to engage in broad based licensing practices. And here the committee I think does a good job of saying you know we don’t know what the implications of this are going to be. We don’t know how it’s going to look in different member states when it’s enacted. And our commitment to this evidence based approach to copyright policy making requires that we wait and see. And so I think that’s good. And also the tone that set in that discussion insisting upon a balanced approach when it comes to online service providers and saying you know that the intermediaries here are not just service providers but also record companies, also large publishers. I think these are important observations.
Carys Craig:
But mostly I think that conversation culminates in a statement that’s very important which is a recognition that copyright law has limited tools to address the kinds of issues that are being presented to the committee. So arguments that Canadian creators and Canadian creative industries are suffering and that the Copyright Act alone cannot ensure that Canadian creators and creative industries receive fair compensation that it cannot solve the problems that are faced by artists. And you know this to me is key because one of my greatest frustrations actually in the copyright debates is this sort of persistent fallacy that copyright law is either responsible for or even remotely capable of solving the inequities, the unfairness that are experienced by artists or the dismal underfunding of culture in the arts in our economic system. And I think for this committee to recognize that the limited tools of copyright law and to acknowledge those in the face of the pleas of content industries is a really important moment.
Michael Geist:
It’s a fantastic point and you know ironically that kind of analysis and discussion is what I would imagine the committee thought they might be getting from the Canadian Heritage Committee and of course ultimately didn’t. So that recognizing the limits of copyright especially in the areas I just articulated are important. Why do we close by asking you about the limits of this report. It comes towards the very end of the parliamentary session, we’ve got an election coming up in the fall. Any thoughts on what next for the report and copyright reform in Canada?
Carys Craig:
Well you know certainly I hope that this that Parliament however it’s constituted after the next election recognizes the value of this report and the importance of the consultative process that led to it and follows through really on a lot of the recommendations that we see here. I don’t think it should be politicized. I don’t think that it should depend upon which party takes power. You know copyright has always been interesting in the way it sits along party lines. And so hopefully that means that the the relevance and the pertinence of this report will persist ovet any change in government. The other thing that the report acknowledges at the end is that copyright policy is necessarily an ongoing and dynamic conversation. And I think that’s exactly right. Constantly the conditions are changing we have to have our eye in different ways in which copyright works as technology shift and as consumer practices shift and not because we have to go in there every moment and change in a little subsections here and there, but because we have to be aware of the fact that the implications of copyright change as the realities of our consumer culture and our consumption of creative content change. So hopefully I mean I think this has set a good tone. I think we have a ton of great information here for Parliament to work with and I hope that this is the report that really captures the imagination of Parliament and allows for a sort of ongoing copyright review or reform process that keeps us eye on the public interest and the copyright balance.
Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.
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