Meera Nair

After the election

In Posts on April 29, 2011 at 6:01 am

On May 2, 2011 many Canadians will head to the polls. While the election is proving to be more exciting than perhaps any one dared to dream, May 2nd is only the beginning. The composition of the government aside, the issue of governance looms large. What will the elected officials do upon the resumption of Parliament?

I assume copyright will return to the agenda. In what form, I do not know. If Bill C-32 and the Legislative Committee could be resurrected, that would be a useful starting point. Whether one’s opinion of C-32 was good, bad or indifferent, the bill contained an essential element: Parliament must review copyright every five years. That provision reinforces what ought to be an axiom; systems of law should evolve as society changes.

Moreover, C-32 and its preceding consultation invoked a robust dialogue on the subject of copyright. While the polarity of discussion was extreme, it remains that the Canadian electorate demonstrated a sharply growing interest in copyright. As I have written before, the last public consultation occurred in 2001 and elicited a modest interest from Canadians. Nearly 700 written submissions were made and approximately 300 people attended meetings across Canada. In 2009, the number of submissions received (not including form letters) ran close to 3000. Hundreds of Canadians participated through informal discussions at the consultation website and Town Hall meetings across the country were well attended in person or by electronic comment. Canadians are no longer copyright neophytes and it should be expected that the dialogue will continue to thrive.

However, Bill C-32 was not without flaws and a revitalized Parliament is a good place to address them. Much has been made of the impact of digital locks; the preferred solution is to ensure that circumvention of a digital lock for a non-infringing use is exempt from a charge of infringement. But as that solution still requires circumventing a lock to exercise a legitimate right, I feel the lock, not the right, should be the exception.

Also on my wish list:

1) Abolish Crown copyright. This archaic provision is an affront to the principles that copyright espouses. The tax payers of Canada pay for the operations of the Government of Canada and therefore should hold the copyright of all Crown creations.

2) Introduce penalties for misusing copyright. A frivolous copyright claim launched by a knowledgeable party should not only be dismissed but carry damages.

3) Establish into law that no contract can override (explicitly or implicitly) Fair Dealing. Otherwise copyright holders can effectively change the Copyright Act without the involvement of Parliament.

4) Keep the hysteria of copyright outside of K-12 classrooms. Young students should not be burdened with the emotional responsibility of staying on the right side of the law as it pertains to learning. Particularly in light of the comprehensive license agreements that already compensate creators whose work is copied in Canadian schools. At the earliest, this subject could be broached in the post-secondary years. Parliament could take the lead by encouraging our many post-secondary educational institutions and associations to better inform themselves on the nuance of copyright – that it is a limited right. The limitation, and the right, need equal respect.

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