Meera Nair

the fifth recommendation

In Posts on June 7, 2019 at 3:47 pm

Earlier this week, the Standing Committee on Industry, Science and Technology released the concluding report of the Copyright Review. In a world where political partisanship can often be described as toxic, the report is encouraging by its display of Members of Parliament of differing parties working together. While I have no doubt some political theatrics occurred behind the scenes, Members appear to have collectively taken on the challenge to probe a seemingly impenetrable area of law that touches Canadian lives on a daily basis, and reconcile  competing interests expressed by a multitude of voices.

The Official Opposition and the New Democratic Party each attached a dissenting report, as is their prerogative to do so.  Yet their combined discomfort was in relation to only two matters: (i) artists’ resale rights; and (ii) Crown copyright – that its repeal was preferable to the stated recommendation of open licensing for government-created content.

As noted by Creative Commons:

The Canadian report offers a glimmer of hope that copyright policy can be furthered in such a way to promote creativity and innovation, while at the same time protecting crucial user rights. This is contrasted with the final outcome of the European copyright directive, which reflects a disturbing path toward increasing control of the web to benefit only powerful rights holders at the expense of the rights of users and the public interest.

The report in its entirety is here, with encouraging language in its front-matter:

Reproduction of the proceedings of the House of Commons and its Committees, in whole or in part and in any medium, is hereby permitted provided that the reproduction is accurate and is not presented as official. This permission does not extend to reproduction, distribution or use for commercial purpose of financial gain. …

But before we delve into the report and reflect broadly on the thoughts and recommendations provided, one issue ought to take priority. In the letter guiding the Committee’s work, the presiding ministers invited Members to “pay special attention to the needs and interests of Canada’s Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.” It is telling that, after dealing with matters of procedure and preparing the ground for future information-gathering and analysis, the first recommendation pertaining to current challenges is:

Recommendation 5
That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;

• The participation of Indigenous groups in the development of national and international intellectual property law;

• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:

  • Creating an Indigenous Art Registry;
  • Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators;
  • and Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

In a submission offered by the Association of Canadian Publishers,  Sa’ke’j Henderson (Research Fellow Miyasiwewin Mikiwahp Native Law Centre of Canada College of Law, University of Saskatchewan) had written: “The purpose of the non-derogation clause is to clarify that these Aboriginal knowledges and cultural expressions are protected and promoted under Sections 52(1) and 35 of the Constitution Act, 1982 and Section 25 of the Charter.”

In his brief, Henderson had also reminded us that “Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples (2007).”  Unfortunately, at best, Canada could be described as having a chequered past with respect to the UNDRIP.

Meaningful attention to Indigenous issues requires deliberate effort to harmonize all federal law with the UNDRIP. So it is disappointing to read that, this week, the Conservative members of the Senate used “procedural tactics to cancel committee meetings on Bill C-262.” This private member’s bill, brought forward by NDP MP Romeo Saganash, was passed by the House  of Commons in May 2018, and aims to ensure that federal laws comport with the UN Declaration of the Rights of Indigenous Peoples.

Returning to Recommendation Five, through my remarks to the Committee and brief, I said: “Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today,” and that finding commonality may help alleviate the challenges experienced by Indigenous communities with respect to appropriate protection and use of traditional knowledge and art.

While passage of C-262 looks less and less likely, we may hope that  Members of the Opposition will ensure that Recommendation Five is acted on.

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