a guest post from Carys Craig

In connection to the current review of Canada’s Copyright Act, I was recently invited to appear before the Standing Committee on Industry, Science and Technology. Dr. Meera Nair also testified at the televised meeting, and her insightful comments are available here. My remarks to the Committee—which focused on technological neutrality, balance, user rights and the public domain—are posted below, with thanks to Meera.

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Thanks to the Committee. My name is Carys Craig. I’m a professor at Osgoode Hall Law School at York University, and I have been teaching and researching in the copyright field for almost 20 years. I’m a co-signatory of the Canadian IP Scholars Brief, about which you heard last week. The views I’ll express here are my own.

I’m going to begin by speaking to some guiding principles underlying Canada’s copyright system, which I hope might inform the Committee’s thinking about a variety of issues before it, and then I’ll highlight a few key proposals that I believe reflect these principles.

The Committee has heard from certain stakeholders that Canada’s copyright laws have fallen behind the pace of technological development, and that urgent reforms are needed in order to ‘catch up’. I would urge the Committee to be skeptical of such claims, and to resist pleas for technology-specific statutory amendments that will protect market incumbents while hampering the use and development of information technologies.

I have written about the principle of technological neutrality at length.[1] The best way to ‘future proof’ our law is not to regulate the technical minutiae in response to the pleas of industry lobbyists, but to seek to ensure the consistency of the legislation, in its purpose and effect, across time and technologies. This requires steady reliance on guiding principles, functional standards, and core concepts; not narrow, technical, and inaccessible rules that will require constant revisiting.

The task, then, is to keep the policy focus on copyright’s overarching purpose as technologies evolve, maintaining the balance between protection and the public domain that best supports the creation and dissemination of expressive works, and a vibrant cultural sphere.

Indeed, in the 2012 case of Entertainment Software v SOCAN, the Supreme Court of Canada agreed with my statement that technological neutrality requires that “the traditional balance between authors and users should be preserved in the digital environment.”[2]

As Justice Abella wrote in the earlier case of Robertson v Thompson, this means that, when confronting questions about copyright and the internet,  “the public benefits of this digital universe should be kept prominently in view.”[3]

If copyright law is a lever to encourage learning and creative exchange, the Internet and digital technologies have advanced this goal enormously. Unduly curtailing their use in the name of protecting authors typically flies in the face of copyright’s rationale.

This hints at the absurdity of much of today’s copyright rhetoric. Consider how strange it is — how facially false it should be — to portray, as the self-interested antagonists of Canadian authors, our public educational institutions, students and the scholarly and research community, librarians, archivists and academics (all the while casting a handful of commercial publishers, collectives, and content industry representatives as the natural allies of Canadian authors and the arts.)

This is the same tired narrative that powerful interests have employed to justify ever-stronger copyright protection for centuries. It’s time to see past it and imagine a better functioning system of incentives and rewards, offering more public benefits and imposing fewer social costs.

The reality is that copyright does a disservice to today’s creators not because of its limits and exceptions, but because of the restrictions that it places on creativity and sharing, the monopolistic interests that it helps to preserve, and its failure to actually attend to the real needs of the artists it is said to serve.

Today, more than ever before, the line between creators and users, between authors and the public, is more rhetorical than it is real. Today’s users are authors and authors are users, authors are students and educators, they are consumers and curators.

The task for lawmakers is not to ‘reprioritize authors’, as some have said, but to recognize the changing nature of authorship and the shifting realities of the information economy.

And so this big picture brings me to my more concrete proposals:

First, this should mean resisting calls to further strengthen owners’ rights and remedies. If the objective is to assist authors, copyright is a blunt tool indeed — and with stronger copyright there is, inevitably, collateral damage to the public domain, to free expression, public education and the functioning of the internet.

Secondly, this must mean recognizing and safeguarding copyright limits and exceptions, and respecting user rights, consistent with the internationally acclaimed jurisprudence of our Supreme Court and the constitutional right of free expression.

This takes a variety of forms.

It supports the move to an open, flexible and general fair use defence that is not limited to particular purposes but capable of evolving to embrace new uses that are consistent with the objectives of the Copyright Act (for example, by adding “such as” to the fair dealing provisions and codifying the Supreme Court’s fairness factors).[4]

It supports shielding fair uses from the chilling effects of potential moral rights liability by clarifying that fair dealing and other exceptions are also defences to moral rights claims.

It means ensuring that neither digital locks[5] nor boilerplate contracts[6] are permitted to override user rights by foreclosing otherwise lawful uses.

It also means protecting and preserving the public domain (in the same sense that one might protect a nature preserve from private appropriation).[7]

This must include finding ways to minimize the harmful impacts of any term extension (for example, by imposing additional formalities or costs on those who would claim protection beyond Berne’s ‘life plus fifty years’).

It also includes finding ways to support the creation of accessible intellectual or knowledge commons (for example, by providing a right of retention for authors to deposit publicly funded research in accessible online repositories,[8] and by opening up government works to the public domain.)

As a final thought, I would note that this government prides itself on its feminist agenda, and should consider what that means in the copyright context.[9] Good copyright policy is concerned not only with providing economic incentives but also with advancing equality; and equality requires access to affordable education, access to knowledge, and supports an ethics of sharing and collaboration.

Leadership in this field cannot mean simply reinforcing 20^th century models of private profit and control; it must mean preparing the copyright system to embrace the potential of the 21^st century while reflecting Canadian values.

With that, I thank you for your attention, and look forward to your questions.

 

[1] E.g., Carys J. Craig, “Technological Neutrality: Recalibrating Copyright in the Information Age” 17.2 Theoretical Inquiries in Law. 601 (2016); Carys J. Craig, “Technological Neutrality: (Pre)Serving the Purposes of Copyright Law” in Geist (ed), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2014).

[2] Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34, at para. 8.

[3] Robertson v. Thomson Corp. 2006 SCC 43 at para. 79.

[4] I wrote in support of adopting fair use in Canada in, e.g., Carys J. Craig, “The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform” in Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law (2005).

[5] Footnote 64 of the USMCA’s Article  20.67(1) potentially gives Canada a small window of time to improve its anti-circumvention provisions in this way. We should take this opportunity to ensure that appropriate limits and exceptions are grandfathered from the Treaty’s highly restrictive TPM provisions. I argued against such anti-circumvention measures, and in favour of digital lock exceptions and user protections, in Carys J. Craig, Digital Locks and the Fate of Fair Dealing in Canada: In Pursuit of ‘Prescriptive Parallelism,  13 Journal of World Intellectual Property 503 (2010).)

[6] The UK’s Copyright, Designs and Patents Act, s.30A(2) offers an example that Canada should follow of the statutory protection of fair dealing against contractual override.

[7] I wrote about how to best conceptualize the public domain and its protection in, e.g., Carys J. Craig, “The Canadian Public Domain: What, Where, and to What End?” 7 Canadian Journal of Law and Technology 221 (2010).

[8]  Belgian copyright law offers one example of such a provision (though I would recommend shortening any permitted embargo period).

[9]  I wrote about this in my blog post for Education International: ‘Ready for Real Change? Copyright, Education and the Quest for Equality’ (25-04-18). See also Craig, Turcotte and Coombe, “What is Feminist About Open Access?: A Relational Approach to Copyright in the Academy”  1.1 Feminists@law 1 (2011).