Copyright Consultation Submissions

I, like most people, am both a user and a creator of copyrighted works. At various points in my life I have been a musician, a songwriter, a visual artist, a television producer, and a computer programmer. Copyright affects me in many ways, but these days perhaps most significantly in my role as an intellectual property lawyer. In this role I still find myself a user and a creator of copyrighted works. The Copyright Act is not only the subject of much of my work, but it protects what I create, and its fair dealing provisions allow me to build on and make use of the work of others in ways that are indispensable.

I appreciate the opportunity presented by this copyright consultation process, and feel that this is an important opportunity for the government to hear the voices of ordinary Canadians. Please take note of the very significant number of responses to this consultation process from ordinary Canadians, and recognize that the individual voices in this discussion represent the bulk of Canadians. Special interest groups may be loud, but volume does not mean majority.

This consultation process should not be the end of the involvement of ordinary Canadians in the Copyright Act amendment process. I hope that we get the opportunity to comment on any proposed legislation as well.

In response to the five key questions posed during this consultation process, I am glad for the opportunity to provide the somewhat verbose response below. I first attempt to describe copyright as I understand it, setting out a principle which I feel should be at the forefront of the mind of anyone thinking of amending copyright legislation, and then make a number of individual points about specific potential amendments to the legislation. I thank you for taking the time to read through it.

What is copyright?

At its heart, copyright is a system of economic incentives whose purpose is to encourage the creation of works, something which we recognize is a benefit to society. These incentives come in the form of a time-limited right granted to the author to control certain uses of their work for their lifetimes, and (in Canada) for fifty years thereafter. After copyright expires, works fall into the public domain, where they become part of the collective cultural wealth available for use by all people for all purposes.

It is true that the greater the scope of copyright protection, whether in terms of years or in terms of the breadth of protection afforded, the greater the ability of the holder of copyright to capitalize on a particular work. If copyright were extended to cover the life of the author plus one hundred years, the copyright holder would have an additional fifty years to generate income from a particular work.

It is understandable that copyright owners would seek to extend and expand the protections afforded by copyright — after all, every extra year works are protected is another year of monopoly income for rights holders, and every right of access that is stripped away from users is another potential source of licensing income for rights holders. You will certainly hear arguments from authors (and those who acquire rights from authors) seeking to extend the scope of their copyright monopolies in order to gain more income. But while we value authors and their works, their interests in broadening the scope of their monopolies must be balanced with the interests of society at large in fairly accessing and building upon those works.

Above all, copyright must not be permitted to be used as a means to artificially maintain rights-holding business models which are otherwise inefficient and unsustainable. If certain rights-holding industries are suffering, it is perhaps because business models need to adapt to a world in which technology has placed the means of production and global distribution in the hands of creators themselves. Perhaps, for example, falling album sales for individual artists can be explained as much by the fact that more music is legitimately available today, from more artists and in more formats, than ever in history. Or perhaps the consumer entertainment dollar is being pulled in more directions than ever before. Perhaps industry losses are a natural product of technological change and resulting competition, and not a symptom of some failure of copyright.

In any case, the ability of a copyright holder to generate income from a work is not the only positive economic impact that a work may have. Once works fall into the public domain, they become part of the collective wealth of all collective wealth of all people, to be used freely however any person chooses to. Works in the public domain can be used, reworked, performed, copied, adapted, extended, transformed, and republished freely, without restrictions or royalties. The very real positive economic effects of a rich public domain should not be ignored.

It could be said that the public domain benefits us all at the expense of the author, because when a work falls into the public domain, the author loses her exclusive right to capitalize on the work. However, it could equally be said that copyright benefits the author at the expense of us all — without copyright, works would be in the public domain by default. Certainly, authors of works deserve to control those works, and deserve to have a right to capitalize on them, but it should be remembered that the copyright rights that we choose to grant to authors do not come from nowhere — when we grant authors a monopoly right over their work, we are at the same time denying everyone else the right to make certain uses of that work without acquiescing to the author's terms.

It is important to remember that copyright is not the only reason people create — if there were no copyright, it is likely true that fewer works would be created. However, creation would not stop entirely. There is a natural human drive to create which is not motivated entirely by profit. Certainly, we should allow authors to benefit from their work, but that is not the only reason for the existence of copyright.

Let's take a book, for example. We grant copyright to the author of a book because we recognize that that book has value to society. One way that value is derived is from the positive effect it has when people read it — people might become enlightened, entertained or informed, other valuable works might be inspired by the book, information contained in the book might form the basis of an important new scientific theory. And so on. Call this value the "cultural value" of the book. It follows, then, that the cultural value of that book would be maximized by allowing the maximum number of people to read it. Clearly, allowing that book to be freely copied and distributed would help to maximize the number of readers, therefore maximizing the cultural value of the book.

On the other hand, a book must be written before it can have any cultural value. If no copyright existed to allow an author to control and capitalize on her work, some books would no doubt never be written. So, an optimal level of cultural value might be obtained by finding the ideal balance between the rights which we must afford to authors in order to encourage them to create abundantly, while still allowing society to access and make gainful use of those works — including allowing fair dealing uses, and the eventual incorporation of works into the public domain.

Our book also has value as an economic engine. The book can be published and sold, it can be adapted theatrically and performed, generating income from ticket sales, it can be adapted for television and advertising dollars can be generated, and so on. This economic value exists in works whether they are in the public domain or not — the primary difference being that in the case of public domain works, the author may not be the person reaping any related profits.

There is a visceral sense that it is "right" to allow authors to control their works, and I certainly agree with that idea. But that sense of "right" is not the be all and end all of copyright. Nor, I would suggest, is it the most important reason for copyright. I think that the copyright loses sight of its goals when the discussion centers around this sense of "right", rather than around copyright as an economic incentive to create. Not to mention that, in my experience at least, the specter of injustice to authors is most commonly raised not by authors themselves, but by representatives of organizations who buy rights from authors — business interests who have a transparent interest in broadening copyright protection, not out of a sense of right or wrong, but in order to protect and expand their own economic interests, by expanding the scope of their monopolies.

Regardless, Canada currently affords copyright protection to authors for their entire lifetimes, and for an additional 50 years thereafter. Surely this is enough of a monopoly to do justice to authors by allowing them to control their works. Dead authors create no new works, and, being dead, it is difficult to see how they could personally object to finding their works in the public domain.

I think copyright is (or should be) an attempt to arrive at an optimal level of "cultural value" in the world. Works should be allowed to be monopolized for only so long, and only in so many ways as is required to encourage authors to create a maximal amount of valuable works.

This must be balanced with the idea that a work is also a cultural and economic engine. Allowing one person or entity to monopolize a work — to control all uses, and seize all profits — is economically (and culturally) inefficient. Maximally positive economic effects are generated through competition. A work in the public domain is freely available to users, which obviously drops access costs. That is a clear economic benefit, as financial resources are freed to be spent in other areas, but that's not the whole story. Public domain works are not only available to individuals to use, but public domain works generate significant economic activity themselves. Copyright doesn't create the ability to generate profit from works, it simply concentrates that ability in the hands of the holder of copyright.

I note that I am by no means intending to deride authors, nor would I attempt to deprive them of a fair opportunity to capitalize on their work. Authors are, after all, the people who create the works on which our collective knowledge and culture is based. But we must see copyright for what it is — it creates state-sanctioned monopolies which would not exist in the absence of copyright legislation. When considering amendments to our copyright law, it makes sense to take a sober look at what the law really is, and to remind ourselves of its goals and effects.

When considering amendments to copyright law, I suggest that one should ask oneself the following questions:

• Will this amendment encourage the creation of more and better works?
• Does the cultural value of whatever new creation this amendment would encourage outweigh any detrimental impact it would have on the public domain and the rights of society to access and build upon beneficial works?

The works that give rise to copyright are of tremendous importance as the foundation of our knowledge and culture, and as sources and inspiration for future works. We can't afford to simply look at legislative amendments as a means to protect and enrich rights holders.

Is it really broken?

Before thinking about amendments, I suggest taking the time to consider that current legislation may in fact be generally adequate. Certainly there are aspects of the law which should be fixed to address new and previously unforeseen uses of copyrighted works — perhaps clarifying a making available right, for example — but it does not follow that the law as a whole must be completely rewritten from whole cloth. Making incremental changes as needed may be a sensible approach, one which does not carry the same risk of perverse and unintended consequences as would introducing entirely new legislation.

Specific Points:

TPMs and DRM

The protection for TPMs and DRM contained in previous bills is an entirely new species of intellectual property protection in Canadian law, and one with tremendous potential to be exploited not to protect copyright, but to hinder interoperability, research and reverse engineering, and to block fair dealing uses.

I believe that no legal protection for TPMs and DRM are necessary at all. Infringement is infringement, whether or not an electronic lock is broken. The fact that these electronic locks can be employed in the first place is a greater protection than is available in print, for example. Why should the legislation provide still more security for electronic media than it does for works published in other mediums?

Such protections should be implemented only to the extent that that may be required for compliance with international intellectual property treaties to which Canada is a party, and we should look carefully at our obligations to ensure that we implement only the minimum required protections.

Any culpability for circumvention should be tied to infringement, and circumvention for fair dealing purposes must be meaningfully protected. Access to means of circumvention must be available to those whose purposes are non-infringing. To criminalize tools or discussion of means of circumvention is to essentially deny access to such tools even where circumvention would be non-infringing.

We must be careful to ensure that copyright law does not become a tool to restrict legitimate research and reverse engineering, or as a tool used by developers of new technologies to restrict competition by preventing third parties from developing interoperable tools or devices. Statutory TPM and DRM protections have an unnerving potential to be misused as a tool to stifle competition and restrict intellectual exploration.

Notice and Notice

I support a notice and notice system of safe harbour for intermediaries. Experience in the United States shows that DMCA notices are often abused, and create a de facto presumption that fair use does not apply. Notice and takedown regimes create significant due process and privacy concerns. The idea that the recipient of a notice-and-takedown notice would have to identify themselves in order to challenge the notice and have their work reinstated is offensive to privacy rights. Canadian law provides effective other means to require the identification of potential defendants. If there is a case to be made for infringement, let it be made in the courts.

Similarly, the idea of a "3 strikes" law (as has been proposed in other jurisdictions) allowing for a user's access to the internet to be cut off after three unproven allegations of infringement is manifestly unreasonable.

Crown Copyright

I support the abolition of crown copyright, or at least a presumption that copyright is waived in all crown works unless a specific claim is made for valid reasons. Although it is beyond the scope of the Copyright Act, I also support a general government mandate to make government works and data available freely and digitally in common, usable formats. Information, data and works generated by government employees in the course of their duties can be a source of wealth for all Canadians and for the world. Such works should be presumed to be available to all to use as they choose, including for commercial purposes.

The utility and availability of government information and works to Canadians would only be enhanced by allowing interested persons to develop new and better means of accessing, manipulating and interpreting that information.

Flexible fair dealing

I support the development of more flexible fair dealing exceptions. Our current approach, which sets out a more or less exhaustive list of fair dealing uses is clearly inadequate to protect the infinite variety of intuitively "fair" uses of copyrighted works.

There is no clear exemption for use of copyrighted works as evidence in litigation, for example. Non-commercial fan art paying homage to a favourite television show is not exempted. Sharing the lyrics and chords to a favourite song with a friend so we can sit in my living room and play it together on guitars is arguably an infringement. And so on.

Our exhaustive approach to fair dealing, when analyzed closely, has perverse results. A US-style approach where listed uses are illustrative rather than exhaustive would be a great improvement.

We certainly need exceptions for parodies and other transformative works. Using current technology, many creators take previously available works and mix and change them so much that they are undeniably new — the author of a song should not have the right to control every nanosecond of their recordings to the extent that any and all samples of their recordings constitute infringement despite the fact that the works created from those samples may have no clear connection to the source. Any new copyright act should shield works that are transformative from charges of infringement.

An analysis of whether a given use of a work competes with the original work should be taken into account when assessing whether a use is a fair dealing use. Works which in no way compete with the original work should be protected, particularly where there is no reasonable prospect that the author of the original work would have branched out in the direction covered by the derivative work. For example, there is a great series of audiovisual mashups available on the internet now called "Autotune The News", in which clips of news anchors and talk shows are run through an Autotune digital sound processor to make the words of the speakers musical, and combined with original music and vocals to form 'songs' of a sort. The results are hilarious and often surprisingly catchy. And arguably an infringement under current Canadian law. Yet these works in no way compete with the source material. There is no way the news networks would ever have taken their footage and turned it into anything like this. This use in no way competes with the networks' intended or likely uses of their footage. Noncompeting transformative uses should be clearly protected in our Act. These works may be seen as frivolous, but they are original, artistic, and deserving of protection.

Incidental inclusion provisions should be strengthened — rights clearing is an extremely cumbersome process for video and film production. Documentaries are particularly impacted by this — where a film is shot "out in the wild" and interviews are done away from a soundstage, background music is often unintentionally incidentally captured. Clarification and strengthening of the incidental inclusion provisions in s. 30.7 of the Act would help to ensure that low budget film and video productions are not crippled by the costs and burdens of clearing rights to copyrighted material unintentionally included in their works.

Uses for the purpose of archiving should also be clearly protected. While the internet is a great thing for so many reasons, it does have the unfortunate side effect of making information transient. What is on the internet today may be gone tomorrow. This was not the case with paper media, for example. Evidence of history can disappear now, often without a trace. Worse, history can be hidden or rewritten — embarrassing statements can be erased, important evidence can simply be deleted. It is important to grant a general right to store a record of what is available now, so that important evidence cannot be hidden or simply disappear. If the material does disappear, some species of right should be granted to republish it intact, with appropriate attribution.

Specific exemptions like educational and library exceptions should be effected through a flexible fair dealing approach rather than through industry specific exemptions — provided the fair use is the same, all users should be treated equally, and be equally entitled to fair use protection.

Fair dealing should be clearly protected as a substantive right of users — contractual provisions imposed by rights holders in contracts of adhesion purporting to disallow, limit or hinder fair dealing uses should be deemed to be of no force and effect. Circumvention of DRM/TPMs employed for the same purpose should be protected under the Act.

Statutory Damages

Infringement without a clear commercial (for-profit) element should not be subject to statutory damages. Where an infringement was for personal use, or was otherwise not done for profit, actual damages should be proven.

We have seen in recent years in the United States the way that statutory damages there have been employed to sickening ends, with individuals on the hook for outrageous damage awards for sharing music on peer to peer file sharing systems. While I support a making available right (but only against parties who actually share copyrighted works themselves, not against search engines or others who link to that content), and the right of rights holders to recover damages for such activities, I feel that where there is no commercial intent, actual damages should be proven.

The possibility of outrageous statutory damages hinders reasonable settlements — plaintiffs are discouraged from making or accepting reasonable settlement offers when they know they could be awarded so much more in statutory damages.

Moreover, why should Canadians support legislation that makes their friends and neighbours vulnerable to damage awards completely out of line with the actual harm caused?

When considering damages for infringement by, for example, sharing music on a peer to peer network, it should be remembered that it is not true that every download equals a lost sale. Infringement may be wrong, but it is not directly equivalent to theft.

Making Available Right

As mentioned briefly above, I support a making available right, but enforceable only against parties who actually host and share copyrighted material — not against intermediaries like search engines or others who merely link to such material.

Furthermore, a making available right should not be allowed to become simply another foundation for yet another collective society, ever seeking to expand its purview and revenues. This right should be one which is only enforceable against parties who share material without color of right. Such a right should not be enforceable against, say, a legitimate online music retailer who has licensed the right to sell music online — obviously, making that music available is a necessary part of selling it online.

A note about the Tariff 24 (ringtones) decision

I strongly feel that amendments to the Act should clarify that the transmission of digital data consequent to an online sale to one single user via the internet is not a transmission to the public by telecommunication for the purposes of the Copyright Act. The Tariff 24 decision was perverse — if I go to a brick-and-mortar store and buy a ringtone there, no tariff would be levied, but a tariff can be levied simply because I choose to purchase the same thing online. This is a tax on the delivery mechanism, and is a hindrance to the development of online retail business. What other tariffs will eventually be assessed for other types of online sales?

The simple fact is that a transmission of digital data over the internet to one single purchaser is not a transmission to the public. It is a transmission to one individual. Rights holders should not be permitted to make use of these peripheral rights to collect twice on the same transaction.

Corporate Copyright

I would support a fixed copyright term for works which were, for all intents and purposes, created by corporate entities (or other entities which are not natural persons) and their employees or subcontractors. Such works would include works which are subject to section 13's "works created in the course of employment", where copyright vests in the employer upon creation. Such works might also include collaborative works created by more than a certain number of authors.

The reason behind this suggestion is that it can be quite difficult to establish when copyright expires for such works — in order to establish when such works fall into the public domain, one would have the ghoulish task of working through a huge list of authors to determine when the last amongst them has died. Often this would be impossible, as the authors would not be generally known. An important aspect of the grant of copyright is knowing when copyrighted works enter into the public domain.

A general fixed term along the lines of that afforded to anonymous works under section 6.1 and 6.2 of the current Act — fifty years for published works, seventy five years for unpublished works — would seem appropriate for corporate works.

Shorter term of copyright for computer software

I support a shorter term of copyright for computer software, because technology changes so rapidly that there is no need for software to be protected for the life of the author plus an additional fifty years. Software is obsolete and nearly useless long before copyright expires. A twenty year term of copyright for software (in line with patent terms) would be appropriate.

Resale right

I strongly oppose granting any sort of right to copyright holders to be compensated upon resale of works in the secondary market.

Oppose extending copyright terms

I strongly oppose extending copyright terms — it has been wisely said (by whom, I forget, unfortunately) that nobody ever decided not to write the next great Canadian novel because they only would get copyright protection until fifty years after their death.

Current copyright terms are more than adequate to ensure that creators keep creating.

ACTA Negotiations

I have been very disappointed to see this significant treaty being negotiated in near total secrecy. I can see no justification for this, and have no choice but to assume the worst — that special interest groups heavily weighted on the side of rights holders are being given an opportunity to make their voices heard while ordinary Canadians are not. Greater transparency here is certainly called for.