With Bill C-11, the Copyright Modernization Act, on its way to clause by clause review Canadians have a chance to think about what values they want copyright to reflect. Canadians are being bombarded with a dizzying array of information about amendments that have been proposed including amendments related to enablement, statutory damages, TPMs and fair dealing. Much of the information is inaccurate and emotionally super-charged to garner as much visceral reaction as possible. A significant portion of it originates from Internet activist Michael Geist and is repeated throughout the blogosphere and in the traditional news media, usually with no attempt at analysis.
Average Canadians must be totally bewildered. They are told by Michael Geist that “extreme measures” are being demanded by creator groups that would, amongst other things, “create new liability risks for social networking sites, search engines, blogging platforms, video sites, and many other websites featuring third party contributions”. They are also warned against “SOPA-style demands” and “SOPA-style reforms” and are encouraged to petition against a “radical reform of the Internet in Canada”. These warnings are an attempt to exploit the controversy and unpopular anti-copyright sentiments about the much misunderstood U.S. legislation in Congress called the Stop Online Piracy Act (SOPA). See, Reining in the rhetoric on copyright reform.
Of course, none of this sounds plausible and the average Canadian who spends any time at all considering these improbables would have to wonder how they could be true. Anyone spending enough time would surely realize that they aren’t. The challenge for the average Canadian, however, would be to figure out why a supposedly independent academic like Michael Geist would engage in such scaremongering[i] to try and create such moral panics over copyright.[ii]
What the average Canadian does not know is that Michael Geist’s antipathy to copyright is part of an effort in many countries to systematically oppose the rights of authors, creators, and other rights holders. This battle is not only about Bill C-11. The opposition entails extensive lobbying against virtually any laws intended to bring to the Internet the same laws that apply off line.[iii] In fact, Michael Geist is held up as the poster child for this movement in a case study in Winning the Web, a book written by the former head of the Open Rights Group, an organization similar to the Electronic Frontier Foundation (EFF). Michael Geist is also on the Advisory Board of the EFF, which regularly intervenes in US cases opposing rights holders.
Michael Geist’s ideological antagonism towards copyright is an extreme departure from traditional values about it. Canadian copyright law has traditionally been built on the historical foundations and theoretical framework of UK copyright legislation, and in particular the UK 1911 Copyright Act. That legislation consistently protected the efforts of authors either as an end in itself, or at the very least, as the primary goal of copyright.[iv] Canadian copyright legislation historically was interpreted by the Supreme Court of Canada as having these purposes.[v]
Mainstream thinking about copyright now recognizes that the law of copyright is concerned with finding an appropriate balance between promoting the public interest in the encouragement and dissemination of the works of the arts and intellect and obtaining a just reward for the creator or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated. Accordingly, owner rights and exceptions (sometimes called “user rights”) are given fair and balanced reading that befits remedial legislation.[vi]
In Canada, our copyright law derives from multiple sources and draws on both common law tradition and continental civil law concepts. Thus, in Canadian copyright law, the intention is to establish rights that are centered on the person of the author, this being derived from the civil structures of the right of ownership, and a dynamic set of economic rights centered on its economic function.[vii] These historical roots and values were described by Justice Gonthier (with three other justices in dissent) in the Théberge v. Galerie d’Art du Petit Champlain inc case as follows:
Even though our legislation derives from the common law, it is important to recall the origin and significance of copyright. In 1777, P.‑A. Caron de Beaumarchais, who founded the Société des auteurs dramatiques, stated:
[TRANSLATION] It is said in the theatre lobby that it is not noble for authors to write for the worthless pursuit of money, they who pride themselves on their claim to fame. Indeed, they are right, fame is appealing. But they forget that nature condemns us to dine 365 times in order to bask in glory merely for a year. For the authors, they are not defending a privilege, but the sacred right of all rights to retain ownership of their works. . . . (Preface by M. Pagnol in J. Boncompain, Le droit d’auteur au Canada: Étude critique (1971), at p. 9)…
J. Herman, in “Moral Rights and Canadian Copyright Reform: The Impact on Motion Picture Creators” (1989‑1990), 20 R.D.U.S. 407, at p. 411, analyses and defines the purpose of the concept of copyright and its relationship with society as follows:
The relationship between the artist and society may be characterized in straightforward economic terms: society places demands on its members to share with it the fruits of their intellectual labour. Artists supply those demands; however, if society recognizes an artist’s right of ownership of his intellectual work, he may set conditions and exact a price for the society’s consumption of it. Copyright confers in the creator a monopoly to exploit his work in public for his own economic self‑interest.
Mainstream thinking about copyright law in the Supreme Court continues to view copyright as an important tool for the economic management of rights in relation to works and other subject matter.[viii] Recent Supreme Court opinions have emphasized that copyright continues to apply to the Internet and digital media. In the SOCAN Tariff 22 case, the Supreme Court stated:
The capacity of the Internet to disseminate “works of the arts and intellect” is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of arts and intellect in the first place.[ix]
In the Robertson v. Thomson Corp. case the Supreme Court emphasized that works in digital form must be treated with the same respect for the law as works in traditional analogue forms:
Media neutrality is reflected in s. 3(1) of the Copyright Act which describes a right to produce or reproduce a work “in any material form whatever”. Media neutrality means that the Copyright Act should continue to apply in different media, including more technologically advanced ones. But it does not mean that once a work is converted into electronic data anything can then be done with it. The resulting work must still conform to the exigencies of the Copyright Act. Media neutrality is not a licence to override the rights of authors — it exists to protect the rights of authors and others as technology evolves.[x]
In mainstream thinking, the protection of authors’ creations is also viewed as such an important societal value that they are protected as a human right. For example, in the European Union, the protection of the right to intellectual property is enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Under EU law, there is an obligation to protect intellectual property and to provide rights that confer effective remedies.[xi] An Irish court recently held that the right to be identified with and to reasonably exploit one’s original creative endeavour in the Internet context is regarded as a human right.[xii] The Quebec Court of Appeal has twice held that the intentional infringement of copyright is a violation of the copyright owner’s right to the enjoyment of property protected under Articles 6 and 49 of the Quebec Charter of Rights and Freedoms.[xiii]
Michael Geist’s views about copyright are a radical departure from these traditional values. He does not believe in the importance of exclusive copyright rights on the Internet or for a need to create a viable legal infrastructure that will support legal markets for digital products. In fact, he regularly opposes these values, and has advocated instead that creators can compete with free on the Internet; that exclusive rights on the Internet should not apply to non-commercial file sharing; and that creators should be paid through a universal levy on ISPs or rely on Government subsidies to survive.
Michael Geist’s ideological views about copyright were expressed on March 25, 2010 when he appeared before the Parliamentary Standing Committee on Canadian Heritage on Canada and New Media. In response to questions from Mr. Rod Bruinooge and Mr. Royal Galipeau about his philosophy towards digital markets, he compared cultural products to water, suggesting that creators could compete with “free” by selling enhanced cultural offerings – “bottled water” – rather than extracting value from their cultural creations and copyrights.[xiv]
In November 2011, he gave a speech entitled Why Copyright Reform Is Not the Cure for What Ails the Music Industry. In it he opposed legal protection for technological protection measures (TPMs). In lieu of conferring legal rights on rights holders, he endorsed a proposal by the Songwriters Association of Canada that would “make it legal to share music between two or more parties, whether over Peer-to-Peer networks, wireless networks, email, CD, DVD, hard drives, etc.” Under this regime, creators and rights holders would receive equitable remuneration through a levy on ISPs in the amount of $5.00 per Internet subscription. This proposal is somewhat similar to a proposal made by Michael Geist’s ideological mentor Lawrence Lessig in his book Free Culture: The Nature and Future of Creativity. The effect of this would be to utterly undermine or destroy markets for works in digital form and likely replace property rights with a governmentally administered reward system that monitors all uses of culture on the Internet and allocates remuneration based on their assessments of value.[xv] In an earlier proposal, he advocated for supporting Canadian creators by providing funding for grant programs instead of expanding the private copying levy to include digital devices.
Given his values about copyright, it is not surprising that Michael Geist opposes every attempt to make intellectual property laws effective. He opposed amending Canadian laws to curtail counterfeiting, telling a Parliamentary Committee “there is likely to be limited economic impact in Canada from counterfeiting”. He was the only witness to take this view and his evidence was rejected by the Committee finding that “there is no doubt that counterfeiting and piracy cause economic harm to intellectual property owners, private companies and Canadian governments.” He opposes Canada’s negotiations of a free trade agreement with the EU that would include minimum standards for the protection of intellectual property. In prepared opening remarks to the Parliamentary Standing Committee on International Trade on the subject of CETA, he told them “CETA represents a very significant change that is part of a broader effort to pressure Canada to change its copyright laws”. To convince them of this he admitted to incorrectly telling them that “copyright provisions were not part of the Canada – US FTA or NAFTA”. He opposes Canada’s participation in the Trans Pacific Partnership negotiations, or at least in so far as they relate to intellectual property. He also was a strong opponent of ACTA. However, rather than accurately focusing on perceived problems, he resorted to scaremongering tactics to demonize it. See, Fear Mongering and Misinformation Used to Slag ACTA, A reply to ACTA critics, and More hype than facts about ACTA from its critics.
In a speech given in June 2010 about Bill C-32 Heritage Minister James Moore warned against being fooled by opponents of copyright reform who “don’t believe in copyright”, who “pretend” to be experts in copyright, but are misleading the public about what it. According to the Minister:
“…Those people who are out there who’re saying copyright legislation/copyright reform is not good, these are people who are dressing up the fact that they don’t believe in copyright reform at all. There’s people out there who don’t believe in copyright at all. They just say well Bill C-61, the old copyright legislation, we disagree with these specific revisions. Well, Bill C-32 we have these specific amendments. Don’t fool yourself. These voices that are out there, there’s people out there who pretend to experts that the media cites all the time, they don’t believe in any copyright reform whatsoever. They will find any excuse to oppose this bill to drum up fear to mislead to misdirect and to push people in the wrong direction and to undermine what has been a meaningful comprehensive year-long effort to get something right. This hasn’t been done as I said since 1997, three years after I graduated high school. It’s been a long time.
We need to amend our legislation and those people out there who try to pretend that they’re copyright experts and they want to amend copyright in a meaningful way. Don’t be fooled by some of these people. They don’t believe in any copyright. They don’t believe in individuals’ rights to protect their own creations and when they speak, they need to be confronted. If it’s on Facebook, if it’s on Twitter or if it’s on a talk show, if it’s in a newspaper, confront them and tell them they are wrong. Canada from the Hudson’s Bay Company to FTA and NAFTA to the G8 and G20, Canada always has been always will be a trading nation. Our future and our past and our prosperity has always been dependant on investment into Canada be in compliance with international standards opening ourselves up to the world, welcoming investment and working with the world, not being an outlier in the world, disregarding international treaties like WIPO that we’ve signed, disregarding our obligations to protect foreign investment into Canada, Canadian investments into Canadian businesses. We need to protect those investments, protect those jobs and make sure that those voices who try to find technical nonsensical fear-mongering reasons to oppose copyright reform, are confronted every step of the way and they are defeated. And when we do that, this bill will pass and Canada will be better for it.”
The clause by clause review of Bill C-11 is an important part of the process in which members of the Special Legislative Committee have a chance to make technical amendments to the bill to ensure it meets its objectives. This is a time for reason and not rhetoric, and for sound values, to prevail.
[i] “Scaremongering” means “a person who spreads stories that cause public fear”. Cambridge Dictionaries Online.
[ii] According to William Patry a “moral panic” is a “reaction by a group of people based on the false or exaggerated perception that some cultural behavior of group…is dangerously deviant and poses a menace to society”. William Patry, Moral Panics and the Copyright Wars (Oxford University Press, 2009) at p. 135
[iv] See, for example, Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.,  1 All E.R. 465 (H.L.) Lord Devlin stated in relation to the purpose of copyright “it protects property. It is no more interference with trade than is the law against larceny. Free trade does not require that one man should be allowed to appropriate without payment the fruits of another’s labour”. (at P. 479); Walter v. Lane,  A.C. 539 (U.K. H.L.) Lord Davey stated at P. 552 “it is a sound principle that a man shall not avail himself of another’s skill, labour and expense by copying the written product thereof”. Lord Halsbury stated at p. 545 “I should very much regret it if I were compelled to come to the conclusion that the state of the law permitted one man to make profit and to appropriate to himself the labour, skill and capital of another”; MacMillan & Co. Ltd. v. Cooper (1923), 40 T.L.R. 186 (India P.C.) There Lord Atkinson stated that the moral basis of copyright rests on the 8th commandment “Thou shalt not steal”. at P. 187.
[v] See, Bishop v. Stevens,  2 S.C.R. 467 at P. 478 Justice McLachlin of the Supreme Court of Canada stated that the Copyright Act “was passed with a single object, namely, the benefit of authors of all kinds”; Vigneux v. Canadian Performing Rights Society,  S.C.R. 348, reversed  A.C. 108 (Canada P.C.) Justice Duff of the Supreme Court of Canada stated at pp. 353-354 in relation to the Copyright Act that the purpose of copyright is to prevent persons from “unfairly availing themselves of the work of others” and that the “protection of authors is the object to be attained by all copyright laws.”; CAPAC v. Kiwanis Club of Western Ontario,  2 S.C.R. 111 at P. 116 Justice Rand of the Supreme Court of Canada stated in relation to interpreting an exemption from infringement in the Act “to extend the language of the proviso would unnecessarily run counter to those principles of justice which accord to owners, particularly of property in the truest sense they have created, the accepted privileges of ownership”.
[vi] Théberge v. Galerie d’Art du Petit Champlain inc. 2002 SCC 34; SOCAN v. Canadian Association of Internet Providers, 2004 SCC 45; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.
[xi] British Telecommunications plc) v Secretary of State for Business, Innovation and Skills  EWHC 1021 (Admin), Productores de Música de España (Promusicae) v Telefónica de España SAU Case C-275/06 29 January 2008, Scarlet Extended SA v SABAM, (ECJ Case C-70/10) 24 November, 2011, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, Case C‑360/10, 16 February 2012
[xiv] Here is the interchange:
On that, I’ll maybe bridge now into a philosophy I think you are espousing in relation to how the market should be able to essentially accommodate the content creators. I guess that type of market philosophy is obviously something that I hold. I’m not going to say that you share that same philosophy. Essentially, when someone’s creating something—in this case, artistic—or any type of endeavour that becomes digital, if a consumer can get similar degrees of content for free, then in theory, there’s no market. If that artist can then differentiate themselves to the point where their content is so desirable, then only at that point can they extract value from it and have a market. I think that’s kind of the philosophy. Unfortunately, we’re on the Internet. Is that kind of what you were talking about?
Prof. Michael Geist: It’s obvious that it is a challenge to compete with free content, but I don’t think that we should be of the view that just because something is available for free, no market can develop. iTunes has sold well over a billion songs, and all of those songs are freely available online. Let’s not kid ourselves. You can access through it peer-to-peer. You can access it—as I see how my kids and other kids with music—through YouTube. It is effectively licensed, but they listen to the song. That’s all they wanted to do anyway. They just wanted to listen to the song anyway. There are lots of ways of accessing that song. Some are paid, while others are not. The truth of the matter is that there is value associated with the way of accessing a song through iTunes or through a CD, so that you can compete with free content. The oldest example that people like to offer is that they got a glass of water for free, and there are plenty of people walking out right now with a bottle of Dasani or Perrier or other kinds of bottled water, for which they pay the basically same thing. They’ll pay two or three more dollars for it.
Mr. Royal Galipeau: But it’s not as good as that water.
Prof. Michael Geist: There you go. So you can compete with free content. The truth is that you can compete with free content if you provide value. One of the really exciting things about the Internet is that we’re seeing innovators coming up with all kinds of different ways where they can add value and entice the customer too.
[xv] Here is an extract of what he said:
Why isn’t the industry, in particular such as CRIA using the existing legal rules to see whether or not they work. If they don’t work then of course, let’s ensure that the tools are there to ensure that the law is effective. But where we find that it already works, the notion that more legal rules onto rules that are already in place, it seems to me don’t make a lot of sense. And finally we ought to be thinking about innovative solutions. The idea that somehow digital lock rules are innovative, rules that date back into the 1990s when the vision of the industry was lets take content, lets lock it down using this DRM and people will continue just to view and purchase all this stuff in the same way that they always have, not interact with it in a way that they are turned out to do, not move from platform to platform as it turns out that they do; not become themselves new kinds of creator as it turns out they do. This is not innovative law making at all. This is very old style law-making that, as I say, the experience in other jurisdictions as shown has done very little to work. There are groups out there that are proposing new kinds of solutions. Songwriters Association of Canada, for example, and put on the table different sorts of approaches that we could be thinking about; that would seek to reflect the reality that peer to peer is here and there are ways to try to address that and find ways to monetise at the same time. I think if we were serious about forward-looking solutions to the extent to which we need some of these solutions, those are the kinds of things that we ought to be talking about, not talking about trying to lock things down.