How can copyright reform best balance the rights of creators, intermediaries and users?

February 11th, 2010 by Barry Sookman Leave a reply »
Here is a digital version of the article published in the Februaryissueof the CBA National magazine. The following question was posed to  Prof. Geist and myself. My answer is set out below.

With a view to positioning Canada as a leader in the global digital economy, how can copyright reform best balance the rights of creators, intermediaries and users?

Copyright has become an emotional topic in Canada in which everyone has a stake. Authors’ livelihoods depend on it. Rights holders need clear, predictable, and fair rules that support creativity and innovation. The public needs access to books, music, art, software and other creative products, all of which are vital to our culture and values.

The combination of digitization and the Internet have fundamentally changed the ways people access, use, copy, and distribute content. This has produced tremendous worldwide pressures to re-evaluate and recalibrate copyright laws to keep them relevant and effective at achieving their intended purposes.

Individuals now have the ability to create and disseminate creative products using digital technologies. Some non-commercial uses of content may technically violate copyright. This has created a mismatch of expectations by individual users, libraries, educational institutions and others. It has led to calls for new exceptions from infringement and the expansion of private copying levies so that copyright holders are fairly compensated for new non-infringing uses.

The creative industries are also challenged by widespread unauthorized copying over peer-to peer (P2) networks and other file sharing services. These services make investments in content creation, artists, creators and performers, and new distribution models, very difficult.

This summer, the government launched a consultation on copyright to tackle these challenges. It asked Canadians questions about the changes that should be made to the Copyright Act to best foster innovation, creativity, competition, and investment and position Canada as a leader in the global, digital economy. My submission to the consultation contained 8 basic principles, and 11 pragmatic recommendations to guide copyright reform.

In summary, we need to do the following to move ahead with copyright reform in Canada.

Establish specific goals for a “Digital Canada” copyright framework. Canada should follow the lead of the UK, which aims to be a global center for the creative industries as part of its “Digital Britain” initiative. The UK is light years ahead of Canada in researching and understanding the imbalances caused by digital technologies and in recognising specifically what must be done to address the challenges.

Address the “mismatch of expectations”. Exceptions to copyright are an indispensable complement to exclusive rights. There is a need to revisit exceptions to ensure that they remain appropriate for the 21st century. Some useful ideas for this were recently suggested in a UK government report. © the way ahead: A Copyright Strategy for the Digital Age,

Do not adopt “fair use” Some have recommended that Canada adopt a “fair use” system. However, as over 50 leading organisations in Canada pointed out in a submission to the copyright consultation, “fair use” is open ended and vague and would introduce considerable uncertainty leaving consumers, businesses, and copyright owners unsure of what is legal and what is not. By contrast, considerable flexibility and certainty can be achieved by enacting new specific fair-dealing exceptions.

Provide effective digital copyright protection to stimulate intellectual creation and dissemination of cultural products Effective copyright protection is crucial to the creation and dissemination of creative products. Copyright promotes creativity that benefits authors, producers, consumers, and the public at large. It also fosters progress and innovation, encourages investment, promotes growth, and increases competitiveness of the creative industries.

A crucial start is to recognize, as our trading partners like the UK and France have, that unauthorized file sharing has to be reduced to give viable business models a chance to grow and thrive.

Amend the Act to ratify the WIPO Treaties. We need to enact laws that will enable Canada to ratify the WIPO Treaties that Canada signed over 12 years ago. This includes providing the protection against circumvention of technological measures (TPMs) required by the WIPO Treaties and that comport with international standards.Opponents of legal protection for TPMs argue that there is “considerable flexibility” in how to implement the treaties and that this flexibility extends to prohibiting circumvention only for the purposes of infringement and that there is no need to prohibit the trafficking in circumvention tools and services. As I have shown elsewhere, these claims exaggerate what is possible to be compliant with both the letter and spirit of the treaties and, if followed, would do nothing to support the policy objective of fostering ecommerce in digital products.

Implement notice and notice backed up by a nuanced graduated response process. A “notice and notice” process is somewhat useful in dealing with infringing activity across P2P networks. It is only effective when supplemented by a graduated response process that has potential consequences for chronic failures to stop file sharing after receiving warning notices.

Anti-copyright advocates often misleadingly characterize graduated response systems as a “three strikes your out” process and attempt to discredit them by using fear mongering tactics telling the public that under these systems a family’s internet connection can be terminated for one year based solely on three unproven allegations of infringement and that personal information will be indiscriminately shared between ISPs to ensure this happens.

The graduated response processes being enacted by our trading partners such as France, New Zealand and the UK are nothing of the sort. The proposed provisions of the UK Digital Economy Bill, for example, would implement a notice and notice system. If this process proves insufficient to reduce significantly the level of online infringement of copyright, the government can impose obligations on ISPs to take measures to limit internet access to certain subscribers. These would be likely to include bandwidth capping or shaping that would make it difficult for subscribers to continue illegal file-sharing, but temporary suspension of broadband connections could also be considered. To safeguard the interests of consumers, the provisions require evidence of infringement and two independent appeal processes are available before any technical measures could be applied to an individual.

Implement a notice and takedown system that fully respects due process considerations. Canada should adopt a formal “notice and takedown” regime. “Notice and notice” and “notice and takedown” are complementary methods of dealing with online file sharing. They have sometimes been wrongfully portrayed as mutually exclusive processes.  They are not.  Notice and notice may be somewhat useful in dealing with P2P file sharing. Notice and take down is very effective in dealing with infringements on systems being stored or hosted on a system or network operated by a service provider.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

 

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