ARCHIVED — Wallace McLean

Copyright Reform Process

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submission from Wallace McLean received on September 30, 2001 via e-mail

Subject: Submission in respect of Canadian copyright law consultation

Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street
5th Floor West
Ottawa, Ontario
K1A 0H5
fax: (613) 941-8151
(BY EMAIL)

Like most Canadians, I am both a creator and user of works which enjoy copyright protection for the term provided under the Copyright Act. I am not an expert in either creative expression, cultural industries, or coyright law; but as a reasonably well-informed and educated layperson I feel I have certain perspectives to offer during this consultation.

I would like to thank you for extending the term for submissions in respect of proposed copyright law changes in Canada, and offer the following as my comments and critiques of proposed reforms, and omissions from proposed reforms:

ECONOMIC POLICY OBJECTIVES: The economic policy objective of copyright law is NOT to provide greater, deeper, broader, and longer protection for works. The objective is to provide reasonable protection, for a reasonable term, before works become part of the public domain. Failure to ensure this balance will result in economic harm to the general public during the term of protection, and if the term is extended.

By way of example, I do not feel that current exemptions for libraries and educational institutions go far enough. For libraries, there need to be broader exemptions allowing copies to ensure the preservation of works for posterity as part of our collective cultural heritage, for the provision of copies of works or parts of works, even if still under term, for personal study, and for the 'migration' of copies of works from one format to another, especially in an ever-changing technological environment, where hardware and software alike have ever shorter lifespans as compared to older types of media.

For educational institutions, it is not sound economic policy to force educational institutions to pay ever increasing licensing fees, or risk the wrath of the copyright collectives, or forego the use of works. If copyright law and collective licensing arrangements effectively shut entire classes of institutions out of being able to make use of certain works, then public education and economic policy objectives are not being met. Educational and private study exemptions for all classes of works need to be clarified, broadened, and made somewhat more liberal in favour of users, without undercutting the commercial market for works.

Copyright law must also reflect the economic value of the public domain. A work does not have economic value solely to the copyright holder during the term of protection. After a work has entered the public domain, other persons can create new economic activity, and breath new life into works, by republishing, translating, adapting, or otherwise dealing with those works in ways which were the exclusive right of the copyright holder during term. A prime example of this can be found in Stratford, Ontario, where millions of dollars are generated in economic activity thanks to the fact that the plays of William Shakespeare are now in the public domain. The pressure to continually extend the term of copyright must be rebuffed: it is false economy to extend the term, as it will benefit only a few holders of a small number of very valuable works, relative to the billions of works created in Canada every year. The creative re-use of public domain works must be valued and protected, and copyrighted works must continue to enter the public domain on a timely, and reasonable basis. The "Life+50" rule is more than satisfactory, and should not be extended.

CULTURAL POLICY OBJECTIVES: The comments above apply, mutatis mutandis, to cultural policy objectives. Educational institutions and private study should be given clearer, and more liberal, exemptions for use of works during term. And sound cultural policy objectives must reflect the need to allow users and creators to adapt and reuse works once they have entered the public domain. "Copyright creep", whereby the term of private ownership continues to increase, must be ended in favour of a reasonable transition to public domain, and again the current law is satisfactory in this regard.

With respect to Canada's international agreements, we must respect them, but we must also not allow our sovereignty to erode by slavishly adhereing to so-called "standards" set, in particular by the US and its recent term extensions.

Finally, Canadian trademark and copyright law should be clarified to ensure that the use of artistic works that have entered the public domain are not considered to be infringements of the use of that work under trademark law. Trademark laws must not be allowed to become a backdoor route to intellectual property protection, apart from the narrow purposes of trade, commerce, and the need for consumer protection, once the copyright term has expired.

ACCESS ISSUES: There is an urgent need to clarify exemptions to copyright infringement, and where necessary, liberalize them or create new ones, in order to create a better balance between creator and user of works. We cannot allow our society, and in particular institutions such as schools and libraries, and private study users, to be handcuffed by "copyright chill." The law can be balanced between creators and users. At present it is not.

One specific example of reform that ought to be incorporated is to liberalize the use and access of works which have been abandoned. If the "life" part of the copyright term is known to be expired, but the fifty years has not run out, and no copyright owner can be traced, the rules of use should be liberalized in favour of the user unless a bona fide owner can demonstrate otherwise.

Clearer and more liberal exemptions should also be made for purposes of review, public interest commentary, and for the definition of "substantial part". These exemptions should be broadened in favour of users, but not to the extent of directly and demonstrable undercutting the commercial market for a work.

AUDIO-VISUAL WORKS: Copyright in commissioned portrait photographs should continue to be held by the person who commissioned them, provided consideration has been received by the actual creator, and in the absence of any assignment to the contrary. Similarly, the ownership of other photographs, taken by one party at the simple request of another party, should rest with the party making the request, absent any assignment to the contrary. To tamper with either of these provisions is to invite chaos and copyright chill in every photo lab in the country. Photographs produced on commission or in the course of employment for magazines, newspapers, etc., should be governed by the terms of the contract between photographer and publisher.

DATABASE PROTECTION: Any protection to databases, and especially "non-original" databases, should fall outside the Copyright Act, and be considered a sui generis intellectual property right, with its own governing legislation.

DIGITAL ISSUES: One issue that is not raised is the protection of new format publications of works in the public domain. Canada, unlike the UK, Australia, and other countries, does not have explicit copyright permission for "published editions" of public domain works. A reasonable term of protection is needed for such published editions, and Canada can pioneer the field in offering similar, reasonable protection for works published in non-printed formats. This reasonable term should not exceed 25 years.

ISPs or others should not be responsible for the copyright infringement of users of their systems, any more than a photocopier company or BASF should be responsible in respect of illegal copying or taping.

Greater exemptions should be provided to ensure that no one is prosecuted civilly or criminally for providing an internet link, or even quoting in email or other digital format, a work which has otherwise been published and made available to the general public, free of charge or other restriction (such as password protection); provided that the individual who has 'copied' the work is not obtaining commercial benefit, or materially, directly, and demonstrable harming the commercial interest of the creator or owner.

GOVERNMENT COPYRIGHTS: The term for crown copyright should be no longer than fifty years, and preferably shorter, given the public policy interest in allowing the reuse and dissemination of public documents and information. The term of protection for unpublished government works should be shorter than unpublished private works, and no longer than the term for published government works.

TECHNOLOGY-ENHANCED LEARNING: Wider exemptions should be provided for not-for-profit educational institutions to create and disseminate digital copies of works, or copies of digital works. Commercial educational institutions should not be eligible for these, or other educational exemptions, to copyright infringement.

TERM OF PROTECTION: The current term is sufficient. No extension should be made. The law must provide for a transition from copyright protection to the public domain in a reasonable time, both to protect the economic and other interest of the creator or copyright holder, and to protect the public economic and cultural interest in the existence of a strong and growing public domain collection of works. Works that were governed under previous, shorter, copyright protection terms, should continue to be so. No work that is already in the public domain should ever re-enter copyright protection.

TRADITIONAL KNOWLEDGE: Any protection should be governed under its own legislation as a sui generis intellectual property right. Such a right should not focus on economic interests in this type of property, given the inherent difficulty in identifying an owner, and should instead concentrate on "moral rights" types of protection.

UNPUBLISHED WORKS: Any "more flexible" transition period for unpublished works should be resolved in favour of the public domain, and not in favour of copyright owners, especially given the inherent difficulty in identifying a bona fide owner of many old works. Life+50 is sufficient for unpublished works; no unpublished work now in the public domain should be returned to copyright protection, and a statutory presumption in favour of the public domain, and in favour of an early transition to the public domain, needs to be created for works where the lifespan of the author(s) is uncertain or undetermined.

UNADDRESSED ISSUES: Reforms should include reasonable and relatively short protection for published editions as a new class of work. No economic or other rights should be created or permitted for the physical holder of a public domain work such as an archive or library, apart from the right to charge a reasonable fee for reproduction, and to insist on public acknowledgement of the institution as the holder/supplier of the original for reproduction. Institutions must also be given greater latitude to copy a work, regardless of its copyright status, in order to ensure its preservation in that institution, to ensure secure access to that work by users of the institution, and to share the work with other institutions or individuals, subject to the regular provisions of the Copyright Act. It is permissible to make a backup copy of software; such a right must also be provided in respect of other classes of works, in order to protect our common cultural heritage.

As a final note, I express my disappointment that your web site has not been as well maintained as it should be, as many of the commentaries received by other parties were not available, due to broken links or other reasons. This inhibited my ability to respond to points raised by other intervenors, and I am sure other intervenors met with the same difficulty. Furthermore, presentations in PDF format should have been made available in regular HTML format as well; do not provide software barriers to the dissemination of intervenor presentations.

Wallace McLean
(Address removed)