correction to the Honourable Member

During the current debate concerning C-11 (the Copyright Modernization Act), the Honourable Member Scott Armstrong (CPC) sought to bolster the merits of C-11 by invoking the presumed support of Canadian students:

That is why the Canadian Alliance of Student Associations is in support of this bill. It states that “the government has demonstrated a commitment to…Canada’s education community”. It goes on to state that students across Canada are greatly encouraged. It goes on to state that “the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers”.

The Honourable Member omitted some details. Following the announcement of Bill C-32 (the predecessor of C-11), the Canadian Alliance of Student Associations (CASA) expressed favour at the expansion of fair dealing, but also expressed concern. From the CASA statement dated to 3 June 2010:

By expanding fair dealing as proposed in Bill C-32, the government has demonstrated a commitment to creating new, supportive measures in our copyright law for Canada’s education community … CASA members are concerned that this excellent education right may be lost in the debate around digital rights management, but we will continue to review the legislation and provide feedback to Minister Clement and Minister Moore to ensure that the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers (emphasis mine).

CASA members are not the only Canadians concerned about the capacity of C-11 to give with one hand, and to take with the other. As Michael Geist has repeatedly documented (ex. here and here), thousands have expressed their wishes, to the Government of Canada, that the legality or illegality of circumvention of digital locks be determined by the purpose of the circumvention. Said another way, circumventing a lock for a legitimate purpose should not be infringement. Such an approach is consistent with the World Intellectual Property Organization (WIPO) Treaties of 1996.  (These treaties appear to be among the principal reasons for amending Canadian copyright law, despite the fact that the treaties were highly contested.*)

Even more curious about the Honourable Member’s remarks is his keen awareness of the industries that have come of age and repute, under our existing copyright law:

The Copyright Act was changed in 1988 and then again in 1997. Many of the technologies we enjoy today were not invented by then and many of the students who I used to teach, who enjoy these devices today, were not even born the last time the Copyright Act was changed. The current act does not respond to the opportunities and challenges provided by Web 2.0 and social media. It does not answer the needs of the multi-billion dollar industries of today that were in their infancy the last time Parliament amended the Copyright Act. For these reasons, we need to modernize Canada’s copyright laws and bring them in line with the demands of the digital age. (emphasis mine).

There is an absence of logic with the Honourable Member’s conclusion. If multi-billion dollar industries grow in the shadows of copyright, Canada would do best to keep those shadows as broad as possible.

* See Michael Geist, The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements in Michael Geist, ed., From ‘Radical Extremism’ to ‘Balanced Copyright’: Canadian Copyright and the Digital Agenda 204 (Irwin Law, 2010).

A Road Less Traveled

Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.

[from The Road Not Taken — Robert Frost (1874–1963)]

As Canada sits poised to alter the Copyright Act, Robert Frost’s famous lines seem more than appropriate. By Frost’s own admission this literary gem is “tricky” (fortunately, analysis is readily available.) But I will take blissful refuge in the realm of amateur-poetry-enthusiast, and just enjoy the poem. For even to an amateur, the ending is clear enough — a difference happened.

Following second reading of Bill C-32, debate/rhetoric is flowing on and around Parliament Hill. Artists express their wish for better financial remuneration via new media levies. Writers remain anxious over the inclusion of education as a consideration under fair dealing. And many Canadians continue to have concerns over the priority placed upon technological measures (i.e. digital locks). Undaunted, the Minister of Canadian Heritage James Moore insists that the bill strikes the right balance for the country as a whole. This week, writing for the Globe and Mail, Omar El Akkad and Susan Krashinsky indicate that Moore’s counterpart, Minister of Industry Tony Clement, will announce more details on November 22.

In terms of digital locks, the best case scenario is that Bill C-32 will be amended so that circumventing a digital lock will be considered infringement, only if the use is an infringing one. A poor compromise: to exercise a legitimate right of fair dealing, Canadians must first break into a work. It was possibly too much to hope that our government would choose to ignore the subject of locks, even though there is no need for government involvement in the first place. After all it is the prerogative of any individual to lock up his or her work if so desired. And if locking the material proves deleterious (i.e. it alienates a customer base or reduces circulation of a work), that same individual has the freedom to reconsider the use of locks. Government sanction of the locks is irrelevant to the matter of choice.

My fanciful world will no doubt be written off as naive: what about our international standing? According to Minister Moore, we must “get off the watch list.” Upon that listing of most-disfavoured nations, more formally known as the U.S. Special 301 Priority Watch List, Canada has permanent residency. It seems we cannot show our face in polite-international-society because of our delay in embracing the WIPO Internet Treaties of 1996.

But the truth is a happy contradiction. Nearly three years ago, Professor Ariel Katz of the University of Toronto Faculty of Law wrote about impending changes to Israeli copyright law. He described the similarities between Canada and Israel with respect to copyright:

Copyright lobbyists (as well as government officials) often argue that Canada must modernize its copyright law lest it stay behind on the technological and cultural front. A little Israeli perspective could help, especially when one recalls that Canada has overhauled its copyright act a few times over years, with significant reforms only a decade ago. If you had to name a developed country that unquestionably needed to modernize its copyright legislation, Israel was that country. The patchwork of statutes based on the UK 1911 act surely needed to be replaced with a modern statute. Nevertheless, despite its antiquated legislative framework, Israel has emerged as a technological and creative powerhouse. Being the world’s 100th smallest country, with less than 1/1000th of the world’s population, Israel has the world’s second highest per capita of new books; it produces more scientific papers per capita than any other nation by a large margin – 109 per 10,000 people. In proportion to its population, Israel has the largest number of startup companies in the world. In absolute terms, Israel has the largest number of startup companies than any other country in the world, except the U.S.

Katz noted a number of promising features in the proposed Israeli act including their progression from a system of fair dealing to a system of fair use. But what caught my eye was the matter of anti-circumvention. Although Canada and Israel are both signatories to the 1996 WIPO Internet Treaties which require members to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used by right holders to exercise their rights, neither Israel nor Canada have ratified the treaties. Yet as Katz observed:

Not ratifying the Treaties has not prevented Israel from complying with their requirement to enact a “making available” right. But interestingly, Israel’s brand new copyright act contains no anticircumvention provisions. The Israeli government has taken the view that at the moment, anticircumvention legislation does not seem to be urgently necessary and Israel would benefit from further studying the need and potential effects of such legislation.

So how did Israel fare? After their revised copyright law took effect in 2008, Israel continued to draw the ire of the United States. But Israel held its ground, and in early 2010 negotiated its way out of disgrace.

That negotiation is acknowledged in a 2010 USTR report on trade barriers. In excerpts provided by the Program on Information Justice and Intellectual Property (American University), the official word is:

The United States and Israel reached an understanding on February 18, 2010 that resolves several longstanding issues with Israel’s intellectual property rights … Although not part of the new understanding, Israel has also signaled a new willingness to make progress on other IPR issues of concern, such as meeting the core requirements of … the WIPO “Internet” Treaties. … The United States welcomes this step, and encourages Israel to proceed with full accession to, and implementation of, the WIPO Internet Treaties.

So much for official words; for actions, Israel is not yet a contracting party to the WIPO Internet Treaties. The question now is, where will Israel travel in the next three years?

Update May 4, 2011: Israel has been reinstated to the US Special 301 Priority Watch List. According to this year’s report from the Office of the United States Trade Representative, “While Israel has taken some steps towards implementing an Understanding on IPR it concluded with the United States in 2010, further action is needed.” Interestingly though, that Understanding was set upon Israel’s patent regime, not Israel’s lack of adoption of the WIPO Internet treaties.

International Standards

The details of Bill C-32 are posted; reviewing the changes will take both time and patience. The Summary details what purpose these amendments should serve, with the first order of business being to:

Update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;

Meaning to say, fulfill the WIPO Treaties.

Last year’s consultation indicated that, by and large, Canadians support the principles of international cooperation as expressed by these treaties. Yet the representation of the WIPO Treaties has been one-sided; to a casual observer it would seem that the WIPO Treaties were only about the rights of the copyright holder (And even in that area, the flexibility permitted in approach has not received due attention.) The Preamble of the WIPO Copyright Treaty provides the full scope of the international standard we should aspire to:

The Contracting Parties,
Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,
Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,
Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,
Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation,

[and my favourite]

Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention.

Well, what about the Berne Convention? This international agreement established minimal standards not only for copyright protection but also for permitting free uses of copyrighted work. For instance, legal texts and legal materials may be removed from the ambit of copyright. One non-negotiable permitted use is that of quotation, provided the source is given and the overall use is fair. Member nations enjoy discretionary powers for setting the uses of works as they relate to “current events.” And there’s more … Throughout, discretionary free uses are governed by the overarching principle of Article 9(2) which states that such uses should not conflict with the normal exploitation of a work.

This raises a critical question – how far is Canada going to expand the purview of what is considered “normal exploitation?”

An anniversary of sorts

This week I gave my little ones (a mercifully smaller group of 94 students) the story of “Where did the WIPO Internet treaties come from?” In our exploration of cultural industries I maintain that Canada is a wonderful historical laboratory. Canada was the first colony to peaceably withdraw from the British Empire but was still encumbered with Imperial trading rules. One in particular, Imperial copyright law, impeded the development of the Canadian book industry. The tension felt then is replicated in a newer form – old order multinational enterprises attempt to bring Canadian copyright law into line through the WIPO Internet treaties.

The Conference Board of Canada has released a much anticipated report, Intellectual Property in the 21st Century. The author, Ruth Corbin, writes:

In 1997, Canada signed on in principle to two treaties of the World Intellectual Property Organization (WIPO) that deal with copyright protection in a digital age. The decision as to whether or not Canada will ratify the WIPO Internet Treaties—by incorporating their provisions into Canadian law—is at or near the top of the hierarchy of decisions to be made in the context of copyright reform. … As it has for every other country that has already ratified, WIPO ratification leaves room for customization to made-in-Canada implementation tactics (p.86).

The report was broadly researched and probes the issue of intellectual property with refreshing candour:

Stronger rights are not necessarily more effective in achieving desirable economic outcomes. The pursuit of effective rights rather than stronger rights is more likely to achieve consensus among diverse groups of stakeholders (p. 81).

Yet for all the discussion about how to implement the WIPO treaties, less attention is paid to their own implementation. As David Vaver has explained a treaty cannot become law without some degree of consensus. Thirty nations must implement the requirements of the treaty within their own domestic laws. It is no secret that the United States was an early advocate of the treaties; American copyright law was amended in 1998. With respect to the WIPO Copyright Treaty, twenty-nine other countries were on board by December 6, 2001; hence the WIPO Copyright Treaty entered into force on March 6, 2002. The founding nations were:

Argentina, Belarus, Bulgaria, Burkina Faso, Chile, Columbia, Costa Rica, Croatia, Czech Republic, Ecuador, El Salvador, Gabon, Georgia, Hungary, Indonesia, Japan, Kyrgyzstan, Latvia, Lithuania, Mexico, Panama, Paraguay, Peru, Republic of Moldova, Romania, Saint Lucia, Slovakia, Slovenia, Ukraine, United States of America

Most of these nations would not be considered at the forefront of digital technology. Nor would they have fit the description of established knowledge economies. What can be said is that many were dependent on American trade, investment, and aid.

Likewise, a similar group exists with respect to the WIPO Performance and Phonograms Treaty, which entered into force on May 20, 2002:

Albania, Argentina, Belarus, Bulgaria, Burkina Faso, Chile, Columbia, Costa Rica, Croatia, Czech Republic, Ecuador, El Salvador, Gabon, Georgia, Honduras, Hungary, Latvia, Lithuania, Mali, Mexico, Panama, Paraguay, Republic of Moldova, Romania, Saint Lucia, Senegal, Slovakia, Slovenia, Ukraine, United States of America

Universal Declaration of Human Rights

My 145 little ones are (I hope) now settled for their winter break. Better late than not at all is this anniversary reminder.

10 December 2009 marked the 61st anniversary of the adoption of the Universal Declaration of Human Rights by the General Assembly of the United Nations. Included among the articles of the Declaration are:

Article 27.1: Everyone has a right freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancement and its benefits.
Article 27.2: Everyone has a right to the protection of the moral and material interests resulting from any scientific theory, literary or artistic production of which he is the author.

These seemingly incompatible rights are jointly fulfilled through the function of limited copyright. However, the challenge of securing Articles 27.1 and 27.2 at a global level is exacerbated by differing cultural traditions and legal regimes, unevenly positioned trade policies, and changing flows of information enjoyed (or despised) through digital technologies and world wide networks.

Copyright, as defined by law, is limited. Yet the perception continues to be otherwise. Which is why it is heartening to see a positive statement from the United States on the merit of limited copyright. Their recent submission to the World Intellectual Property Organization, courtesy of Jamie Love (thank you), is here. While the U.S. message focuses on persons with print disabilities, the opening remarks offer some support for the merit of the individual rights of fair dealing and fair use; rights that are applicable to all persons. To paraphrase:

The United States is proud to have a series of specific exceptions and limitations in our copyright law, including for education, libraries, and persons with print disabilities.

The law of the United States has these exceptions because we believe access to information, cultural expression, and ideas is essential and we know that governments have a role to play in facilitating that access and reducing barriers to information, education and full participation in a democratic society. So while the United States believes profoundly, in the words of our Supreme Court, that copyright law is “the engine of free expression,” we are also committed to policies that ensure everyone has a chance to get the information and education they need and to live independently as full citizens in their communities.

A good place to move forward from…