Thanks for your comment, Chris. As you likely know, Tariff 22 came after CCH. Here is more from the paragraph in Tariff 22 that I originally posted:

"This Court has recently described the Copyright Act as providing 'a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)' (Théberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34, at para. 30; CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, at para. 10). The capacity of the Internet to disseminate 'works of the arts and intellect' is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, BUT THIS SHOULD NO BE DONE UNFAIRLY AT THE EXPENSE OF THOSE WHO CREATED THE WORKS Of ARTS AND INTELLECT IN THE FIRST PLACE." (my emphasis)

I am not sure what parts of Bill C-61 you found unbalanced -- perhaps all of it, but I imagine your primary concerns involved those provisions dealing with TPMs and DRM. I am fairly indifferent to those provisions myself relative to other copyright reform issues. However, as far as I know, the approach taken in Bill C-61 was not radically different from the approach to adequate legal protection taken by Australia, the United Kingdom and the rest of the European Union, and by many other countries, including the U.S. over the past decade. I am not sure that any of those countries have put their citizens at an economic, innovative or cultural disadvantage. Arguably, EU countries have done more than other parts of the world to address copyright balance when it comes to protection for TPMs, but are there any EU countries that have lesser statutory protection than was proposed in Bill C-61?

The European Union has not yet ratified the WIPO Copyright Treaty or the WPPT (neither has the UK by itself, for that matter), and it's not clear what legislative changes they need to make in order to do so.

Australia effectively accepted the USA's demands on the way they amend their Copyright Act as part of a trade treaty. As I understand it after talking to a number of Australians, they essentially recognised that the changes they made to copyright were bad for Australia and Australians, but the trade benefits that they got in compensation made them worthwhile overall. At least they got something of value for giving the USA what it wanted.

The UK, US, and Japan, of course, unlike Canada, are huge exporters of copyrighted material, so they will naturally benefit from a particular model of copyright law (particularly if they can get other nations to adopt that same model).

I think the best international model for copyright law revision is probably Israel.

As for C-61, any bill that grants vast new rights to rightsholders and almost nothing to users (C-61 was very cleverly drafted to appear to give users rights while in reality giving almost nothing - for example, allowing us to record TV, but only to "videotape") is not, in my opinion, "balanced". Historically, copyright law has always ratcheted in one direction - more rights that last longer for rightsholders. What we need is sound economic analysis about where the "sweet spot" is. what little economic analysis there is seems to indicate that the law already gives too much to rightsholders, so giving more is not good economics.

Chris,

All members of the EU, including the UK, have indeed implemented into their national laws the provisions of the WIPO Internet Treaties in accordance with the EU Copyright Directive:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

Article 6 of the EU Copyright Directive concerning protection of TPMs and rights management information, is arguably more rights-holder friendly than the DMCA or the Australian legislation or what was proposed in Bill C-61. With that said section 6(4) on user exceptions is important and could be instructive for our legislators.

When speaking of rights-holders, it's important to discern between creators and their producers. The economic 'spot' many Canadian creators find themselves in could definitely be 'sweetened'. One way of doing this is to amend the Copyright Act in a manner such that rights creators have under the Act are not stripped away by the contracts they enter into with their producers and publishers. Again, there are instructive examples in EU countries on this front.

http://www.wipo.int/
treaties/en/
ShowResults.jsp?lang=en&treaty_id=16 and http://www.wipo.int/ treaties/ en/ ShowResults.jsp? lang=en&treaty_id=20 show that, as I believe I said, the EU and UK have signed but not ratified the WCT and WPPT (some EU countries, such as Belgium, have indeed ratified one or both). I'm not aware of any more authoritative source.

I do agree that the EU has taken an interesting approach to some of this stuff, and that there are some ideas there that may be worth emulating.

And yes, I always distinguish between the actual creators and the intermediaries. In fact, I find it hard to understand why so many creators are pushing for the same things that the intermediaries are asking for - historically, what's been good for the intermediaries has not generally been good for the actual creators (despite the rhetoric the intermediaries always use).

Thanks again for your comments, Chris. If all of the EU countries have already implemented in their national laws the provisions of the WIPO Internet Treaties in accordance with the EU Copyright Directive (which they have) I am not sure that I would make too much of the fact that the EU has not formerly ratified those treaties en masse. Put another way, if Bill C-61 had passed in to law, I trust you would not really care too much whether or not Canada formally got around to depositing instruments of ratification with the WIPO. According to the WIPO table you posted, Australia has not, but we know what its copyright law now provides. Perhaps I'm missing something, but I don't think so.

I'd suggest that copyright is good for creators, users, and intermediaries alike. Problems arise when the latter have monopoly-like control on copyrights, which they can use to their advantage against creators (e.g. inequitable copyright contracts) and users (e.g. high prices for access). But those are market/competition/bargaining power imbalance problems not copyright ones.

I'm always very wary of statements like "copyright is good". Water is good, but too much will kill you. I think that some copyright is good, but we've currently got too much. It's stifling both creativity and technology, and that needs to be fixed.

Well, it's hard to respond to such a broad statement (I'm not sure in what regard you think we have too much copyright), but I would note that if we have too much copyright in Canada as you state, the overwhelming majority of our trading partners around the world are absolutely drowning in it. I include, Israel, a country you mentioned earlier as probably the best international model to follow, which despite having recently imported American style fair use, has a longer term of copyright protection (life plus 70) and higher statutory damages than Canada.

Ok, here's an example. Software. Copyrighted for at least the life of the author plus 50 years in all Berne countries. I suspect that no software has ever entered the public domain. Parts of our history like OS/360, MS-DOS and Windows 3.1, parts of our culture like Pong, Asteroids and Pac-man - all are still locked up. I don't see how anyone benefits from that, including the original creators, but especially today's creators who are unable to build upon those earlier works.

Copyright is supposed to be a bargain - you get a monopoly on expression for a limited period of time as an incentive to create cultural works that add to the public domain. These days, society is not getting the benefit.

While not a software expert, it seems to me that the very programs you mention indeed continue to be built upon in no small part because of the protection copyright affords. Society has clearly benefited from the bargain.

The point was that the works mentioned are are not being built upon. They are nigh-abandoned.

BTW, the idea that "everyone else is doing it", so of course we should, too just doesn't work for me. For counter-examples, how about China ? According to the propaganda we get from the US, it should be impossible to be a professional musician in china, but that's not actually the case. They don't sell copies, of course, but they are still able to make a living as musicians.

Copyright imposes a huge amount of friction on business. Half the cost of a documentary can be licensing fees, and producers are often forced to remove film that they'd prefer to keep for purely financial reasons. Copyright isn't helping those creators.

"BTW, the idea that "everyone else is doing it", so of course we should, too just doesn't work for me."

Fair enough. But something we all need to appreciate (and which doesn't get highlighted enough IMO) is the fact that we exist in a global context and participate in a global economy. Nowhere is this more apparent than in the digital environment, which is virtually borderless. Consequently, we are not an island, and while we clearly need to introduce copylight laws that are appropriate for Canada, implementing a copyright regime that is substantially different from those of our trading partners is deeply problematic. As it is, Canadian creators are generally benefiting from the enhanced copyright protections available in other jurisdictions while we do not extend the same rights and priviledges to their creators…so it's little wonder that they're more than a little frustrated with us.

"Copyright imposes a huge amount of friction on business."

Speaking of sweeping statements, this one is pretty broad, and not always applicable. In my experience as a copyright lawyer, the majority of businesses that encounter copyright or licensing issues just deal with it, obtain the necessary clearances or work around it, and move on. The example of documentary filmmakers you provide suggest that you object to the fact that they are required to pay license fees to use others' copyrighted works…even tho many documentary films are themselves commercial projects that are exhibited in theatres.

So, because documentary filmmakers have to pay license fees, copyright is bad or overly strong? While I don't mean to demean or minimize the issues that documentary filmmakers may face in acquiring clearances, one of the main issues I have with this sort of argument is that it basically suggests that the whole copyright regime (which actually does work for a large number of creators) is flawed or broken because a relatively small group is inconvienienced or adversely affected. Should we really be designing our entire copyright regime around small, niche groups?

"Should we really be designing our entire copyright regime around small, niche groups?"

Maybe not, but it seems to many of us that the handful of copyright collectives actually pushing for something like Bill C-61 are the small, niche groups who want something that is incompatible with Canadian values.

I think there are plenty of examples of groups that are suffering today because of too much copyright, including :
Documentary filmmakers
Educational institutions
Librarians and archivists
Historians
Mash-up artists
Search engines
Technology innovators
and, of course, users (which in practice is everybody)
Overall, my gut feeling is that copyright as it stands is currently doing more harm than good. That it's hurting creators is particularly galling. I don't have a problem with commercial documentary filmmakers having to pay some reasonable amount of royalties, but that amount should be a reasonable small proportion of the cost of making the film. 50% is not reasonable. I do have a problem with copyright regulating what Canadians do in the privacy of their own homes - the Act was always intended to be a business law governing commercial activity. We shouldn't need to hire a lawyer to decide whether we can legally record a TV program or rip a CD to our iPods. Innovators should be free to create new consumer electronics that *could* be used to infringe copyright, just as tool-makers in general are free to create tools that *could* be used to break other laws.

I find it amusing that "as a copyright lawyer" of course you don't feel that copyright imposes friction on business - you are part of that friction !

We shouldn't be designing laws around small, niche, groups, but historically we've done exactly that with copyright.

The global issue is important. The trouble is that a small number of very powerful countries who benefit from "longer, stronger" copyright regimes have been able to impose their ideas on the rest of us. If the US wants us to implement "US-friendly" copyright laws (and they clearly do), we should be getting something for it. That's what happened in Australia. Giving it to them for free is just stupid.

Chris,

Respectfully, I think you continue to overstate the United States' influence and understate the number of countries around the world (including the entire EU) that have implemented the WIPO Internet Treaties' provisions. I don't think we are in the habit of slavishly following the U.S. on copyright policy -- if we were, American fair use would have been part of our law long ago. It's not. Further, a so-called "Canadian DMCA" (as consumer advocates like to call it) would have long ago passed. It hasn't. Our term of copyright protection continues to be shorter relative to the U.S.

You earlier suggested that Israel is probably the best place Canada can look for inspiration, but yet that country has a longer term of copyright protection (life plus 70) and higher statutory damages.

The US has spent the past 10 years putting pressure on other countries to adopt their DMCA legislation. They've done it through bilateral trade agreements (and these agreements never allow expansions to fair use). We haven't passed a DMCA style law mainly because we've had a series of minority governments that were hindered in trying to pass unpopular legislation.

However, it's worth considering that implementing WIPO doesn't have to mean implementing a US style copyright law. The WIPO treaty does not require 3 strikes legislation to cut of your internet connection, notice and takedown schemes, protection of DRM that overrides fair dealing and so on. Those are only one way of implementing WIPO… there's no evidence that they are actually a good idea, and plenty of evidence that they lead to anticompetitive practices and have a chilling effect on computer science research.

Meikipp, the Liberals held a majority for several years after Canada signed the WIPO Internet Treaties in 1997.

I would find your argument more convincing if you could name a single European Union country that has implemented the WIPO Internet treaties in a markedly different fashion than the U.S. when it comes to TPMs and DRM.

No one else rushed to implement WIPO either, except the US. It's just not a big issue next to desires for world peace and to end poverty. Copyright consultations in 2001 in Canada proved the issue was unpopular with voters and Bill C-60, the Liberals copyright bill, vanished when the election was called.

As for the trade agreements, it's not a surprise since signing the trade agreements required implementing WIPO the same way as the US. But, they aren't the only country pushing for this, just the most obvious.

The market is the force that will ultimately decide the fate of DRM and TPMs. Notice that iTunes is now selling music DRM free. DRM hasn't stopped piracy, it only hampers legitimate customers.