From "Radical Extremism" to "Balanced Copyright" : Canadian Copyright and the Digital Agenda

Edited by Michael Geist

Copyright has long been viewed as one of the government’s most difficult policy issues. It attracts passionate views from a wide range of stakeholders, including creators, consumers, businesses, and educators and it is the source of significant political pressure from the United States. The latest chapter in the Canadian copyright saga unfolded in June 2010 as Industry Minister Tony Clement and Canadian Heritage James Moore tabled Bill C-32, copyright reform legislation billed as providing both balance and a much-needed modernization of the law. The introduction marked the culmination of months of public discussion and internal government debate.

This book represents an effort by some of Canada’s leading copyright experts to shift away from the sloganeering that has marked the debate to date by moving toward an informed analysis of Bill C-32 and the future development of Canadian copyright law. Edited by Professor Michael Geist, an internationally regarded authority on Internet and technology law, it responds to the need for non-partisan, informed analysis of Bill C-32. An exceptional group of Canadian scholars from coast-to-coast have come together to assess Canada’s plans for copyright reform and the digital agenda in this timely volume that features context for the reforms, analysis of its impact on technology, business, education, and creators, as well as a look ahead to future copyright and digital issues.

CONTENTS

Introduction

Michael Geist
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CONTEXT: Chapter One

Copyright: Characteristics of Canadian Reform

Sara Bannerman

Canadian copyright has been called “the most contentious, the most con- troversial subject that has ever been before the Parliament of Canada,” occasioning “more friction in the parliament of Canada . . . than any other subject.”1 That statement, though made in 1923, is still true today as Canada embarks on its third attempt in five years to revise Canadian copyright law. Tensions arise not only out of the conflicting demands of Canadian copyright stakeholders; they also arise out of the various inter- national pressures on Canadian copyright policy and efforts to meet those demands while tailoring Canadian copyright to domestic circumstances. The attempt, under Bill C-32, to bring Canada into conformity with the World Intellectual Property Organization (WIPO)’s 1996 Internet treaties is an effort to navigate these tensions — occasioning as much friction and controversy as its predecessors.

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CONTEXT: Chapter Two

North American Digital Copyright, Regional Governance, and the Potential for Variation

Blayne Haggart

In 1994, Canada, the United States, and Mexico implemented the North American Free Trade Agreement (NAFTA), which was designed to provide a framework for the governance of a North American economy. One of the most significant parts of the agreement was Chapter 17, which dealt with intellectual property (IP) and was designed to bring Mexican IP law in line with that of the United States (Canadian IP law was already substantially similar to that of the US). Referring to the copyright sections of Chapter 17, Acheson and Maule describe the treaty as a step in the continuing har- monization of North American copyright law, itself embedded in a pro- cess of global harmonization spearheaded by the 1995 Agreement on the Trade-Related Aspects of Intellectual Property (TRIPs) at the World Trade Organization (WTO).

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CONTEXT: Chapter Three

History in the Balance: Copyright and Access to Knowledge

Myra Tawfik

Copyright law is generally understood to encompass within its policy em- brace the interests of three constituent groups: users, creators and copy- right industries. Each of these groups has found enough support in the history of copyright law to argue that its interests should predominate within the legal framework. As interested parties, their advocacy position is to be expected. The role of Parliament is different however. It is the legis- lature’s responsibility to be dispassionate, to mediate between these often competing interests in order to craft appropriate legislation in the name of the greater good. And by “appropriate,” I mean balanced in setting the ap- propriate parameters between adequate protection and adequate access.

CONTEXT: Chapter Four

Fair Dealing at a Crossroads

Meera Nair

Shortly before his death Harold Innis wrote: “Law is apt to become any- thing ‘boldly asserted and plausibly maintained.’”1 Applying these words to the present environment suggests that copyright is mere moments away from becoming a means of absolute control. While those familiar with the law are cognizant of copyright’s structure of limited rights, lay people see copyright as all-encompassing and act accordingly. Music downloading notwithstanding, perception is that copyrighted material cannot lawfully be used without permission. Judging by the proposed changes to the Copy- right Act, perception is becoming nine-tenths of the law.

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CONTEXT: Chapter Five

The Art of Selling Chocolate: Remarks on Copyright’s Domain

Abraham Drassinower

On 27 July 2007, the Supreme Court of Canada released a significant de- cision dealing with copyright and parallel imports, Euro-Excellence Inc. v. Kraft Canada Inc. The decision is truly extraordinary. It offers an oppor- tunity to study systematically the interaction of several copyright issues: including the rights (or lack thereof) of exclusive licensees as plaintiffs in parallel import situations, the distinction between exclusive licensees and assignees, the nature of works of authorship, the characteristics of copy- right infringement, the status of copyrightable works when used as trade- marked logos, the limits (if any) of concurrent copyright and trade-mark protection, and even the distinction between trade-mark, copyright, and patent as autonomous yet related legal regimes.

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CONTEXT: Chapter Six

Réforme du droit d’auteur et interprétation judiciaire

Mistrale Goudreau

For many years Canada has pursued a broad copyright reform process. Several proposals to amend the Copyright Act have been brought before Parliament, some of which have resulted in important legislative modi- fications while other bills have died on the Order Paper. These legislative efforts received wide public attention but may have obscured the fact that the courts have greatly contributed to the design of the Canadian copyri- ght regime. Key legislative concepts such as the criteria of “originality”, the “substantial part” test, and the “fair dealing” exception have relied on caselaw for their definition. On the other hand, legislative reforms have been ad hoc, with very detailed and narrow provisions. Because of this ap- proach to drafting, the courts have been presented with difficult statutory interpretation challenges and to some extent have adopted unconventio- nal solutions. Bill C-32, if enacted, will also involve issues of interpretation which will require the courts’ productive intervention.

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TECHNOLOGY: Chapter Seven

Locking Out Lawful Users: Fair Dealing and Anti-Circumvention in Bill C-32

Carys Craig

Fair dealing and other exceptions to copyright owners’ rights perform a vital role in the copyright system: they permit substantial uses of copy- right-protected works, which would otherwise be infringing, in order to ensure that copyright does not defeat its own ends. By creating the ne- cessary “breathing space”1 in the copyright system, the fair dealing de- fence acknowledges the collaborative and interactive nature of cultural practices, recognizing that copyright-protected works can be used, copied, transformed, and shared in ways that actually further—as opposed to undermine — the purposes of the copyright system.2 If copyright is to be justified as a means to encourage the creation and exchange of intellectual works to the benefit of authors and society as a whole, then a suitable fair dealing defence is an essential part of that justification.

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TECHNOLOGY: Chapter Eight

The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements

Michael Geist

The introduction of Bill C-32, the third attempt at Canadian copyright reform in five years, was greeted with generally positive reviews, as many groups and individuals welcomed the good faith attempt to broker a com- promise on many contentious copyright issues. While copyright watchers have long recognized that any bill is guaranteed to generate some disagreement — the copyright reform balancing act invariably means that no stakeholder views the law as perfect — Bill C-32 does a better job than its predecessors of addressing difficult issues such as fair dealing, intermedi- ary liability, and statutory damages.

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TECHNOLOGY: Chapter Nine

Digital Locks and the Automation of Virtue

Ian Kerr

Of all the “lock and key” narratives in the western cannon, I think my favorite is the legend of the Gordian knot. Midas, the son of King Gordius, intricately tied the famous knot. It was initially fabricated as a physical lock. Woven in unfathomable complexity, the knot fastened his father’s famous ox-cart to a wooden post. As the Greek historian Plutarch de- scribed it, Midas tethered the ox-cart, “fastened to its yoke by the bark of the cornel-tree . . . the fastenings so elaborately intertwined and coiled upon one another that their ends were hidden.” Secured by the knot, Mi- das intended the cart to remain locked within the palace compound of the former kings of Phrygia at Gordium as an enduring legacy of his family’s rule. However, due to a prophecy of the oracle of Telmissus, the knot be- came known not so much for what it prevented as for what it would one day permit. Indeed, the multitudes that sought to disentangle it over the years never intended to steal the cart. Rather, they hoped to fulfill the oracle’s prophecy that, “was believed by all the barbarians, that the fates that decreed that the man who untied the knot was destined to become ruler of the whole world.”

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TECHNOLOGY: Chapter Ten

The Protection of Rights Management Information: Modernization or Cup Half Full?

Mark Perry

Many papers in this collection discuss the history and development of Bill C-32, An Act to Amend the Copyright Act, introduced into the Canadian Parliament on 2 June 2010, so that analysis will not be duplicated here. Among the failures of copyright reform has been the lack of addressing the required “balancing” of proprietary rights on the one hand, with user rights and the public domain on the other. Rights Management Information (RMI) can aid in this balancing. The RMI of a work is simply data that provide iden- tification of rights related to that work, either directly or indirectly. Al- though the Bill aims to address the perceived lack of compliance with the World Intellectual Property Organization (WIPO) Treaties, the drafters may not have seen WIPO’s own Scoping Study, which recommended:

Legal means should be found to prevent the recapture of exclusivity in works that have fallen into the public domain, whether through another intellectual property right (trademark or right in databases), property rights, other legal entitlements or technical protection, if such exclu- sivity is similar in scope or effect to that of copyright or is detrimental to non-rivalrous or concurrent uses of the public domain work.

The 1996 WIPO Treaties should be amended to prohibit a technical impediment to reproduce, publicly communicate or making available a work that has fallen into the public domain. There is no legal basis for the enforcement of technical protection measures applied to the public domain, as public domain status should guarantee the right to make re-use, modification, reproduction and communication. It could also be clarified that only technological measures protecting copyrighted works that form a substantial part of the digital content to which they apply will be protected against circumvention. Technological measures mainly protecting public domain works, with an ancillary and minimal presence of copyrighted works, should not enjoy legal protection.

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TECHNOLOGY: Chapter Eleven

How Virtue Ethics Might Help Erase C-32’s Conceptual Incoherence

David Lametti

The proposed changes to the Canadian Copyright Act set out in Bill C-32 illuminate the conceptual incoherence of what has come to be commonly known as “copyright plus” or “paracopyright.” In terms of copyright re- form, the new provisions in C-32 seek to strike a balance between the interests of right-holders and the interests of users. A number of the pro- posed changes are welcome, and reflect the legitimate—or at least what ought to be the legitimate — expectations of copyright-holders and users. The non-copyright aspects of the Bill—the protection of digital locks, for example—have their grounding in other normative paradigms and are more problematic when juxtaposed against the traditional copyright provisions contained in the Bill and in the rest of the Copyright Act. They represent a serious conceptual flaw or incoherence in the Bill. This cen- tral conceptual flaw could overwhelm the copyright balances struck in the other parts of C-32, in Canadian jurisprudence, and in copyright theory and history generally.

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TECHNOLOGY: Chapter Twelve

“Modernizing” ISP Copyright Liability

Gregory R. Hagen

In the intense battle for the spoils generated by the online information ecosystem, it has been a contentious question as to whether Internet inter- mediaries—especially those who carry, host and index others’ informa- tion—should be liable for copyright infringement in relation to content provided by third parties. Internet intermediaries include Internet access providers, web hosting providers, Internet payment systems, search en- gines, portals, e-commerce intermediaries, blogs, video sites, and social networking platforms. Currently, under the Copyright Act, those who provide the means necessary for others to communicate works and other subject matter on the Internet (Internet Service Providers or ISPs) will not be liable for copyright infringement if they merely provide such means. Under the Copyright Act, there are no mandatory notice and takedown (NTD) provisions requiring ISPs to prevent infringement by taking down allegedly infringing subject matter when an allegation is received from a copyright owner. Nor is there a notice and notice (NN) system which re- quires ISPs to forward a notice from a copyright owner of alleged infringe- ment by its customer, in relation to the use of the ISP’s facilities, to the allegedly infringing customer. Nonetheless, it has been common practice for a number of years for major ISPs to voluntarily forward a notice of al- leged infringement to their customers.

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CREATIVITY: Chapter Thirteen

Towards a Right to Engage in the Fair Transformative Use of Copyright‐Protected Expression

Graham Reynolds

Networked digital technologies have given Canadians the opportunity to engage with culture in a way that has never before been possible. Empow- ered and inspired, individuals from Prince George to the Georgian Bay to George Street are rejecting their former role as passive consumers of culture in order to participate in a continuing process of cultural (re)cre- ation, production, and dialogue. One way in which they are doing so is by engaging in the transformative use of existing expression, a type of creative activity in which previously existing expression is reworked for a new purpose, with new interpretations or with a new meaning.

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CREATIVITY: Chapter Fourteen

An “Independent” View of Bill C-32’s Copyright Reform

Tina Piper

The act of legislating copyright assumes that there is a consensus over what copyright is: that those participating in the dialogue of law-creation use words similarly; that implicated parties have definable interests and use their rights in specific ways; that those uses of copyright are held by owners as property-like rights and entitlements. Reform of that legislation presumes an essence of what copyright does: that rights holders (creators or owners) seek to maximize the strength of their right and sell more prod- ucts; that the public benefits from increased access; that copyright provides access; that a copyright may be regarded as a reward that incentivizes cre- ative production and artistic labour, and other such assumptions. This no- tion of consensus is highlighted by the fact that when closely analyzed, the words used to define copyright are ambiguous: terms like “public,” “inter- est,” “creator,” “user,” and “owner” are notably indeterminate. These words are used as metaphors, metonymies, analogies or projections and among some group of people (or interests) these terms have a shared meaning that allows conversation about copyright to proceed.

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CREATIVITY: Chapter Fifteen

User-Generated Content and Music File-Sharing: A Look at Some of the More Interesting Aspects of Bill C-32

Daniel Gervais

This chapter is not intended as an update, but rather as an addendum to my chapter in Professor Geist’s previous book on Canadian copy- right reform. In that chapter, I suggested that the upcoming reform should focus on excludability of Internet-based uses, that is the exercise of exclusive copyright to prevent online uses of copyright material. I also suggested that this excludability was technologically problematic. Users empowered by social norms and ever-changing technological tools going well beyond peer-to-peer software, and even relying on the old USENET, circumvent technological protection measures (TPMs), and ultimately access millions of MP3s. Proxies and anonymous clients make the activity increasingly hard to detect and track. Finding more intrusive ways to track Internet usage is not just a technological challenge; it also pits copyright against other rights, including users’ privacy rights and interests. It made sense in the context of that chapter to suggest that more online uses should be permitted (and licensed), where appropriate using a collective model providing licensed access to a repertory of works or other protected subject matter.In this chapter I return to the issue of music file-sharing to see how much progress we have made.

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CREATIVITY: Chapter Sixteen

Culture Matters: Why Canada’s Proposed Amendments to its Copyright Law Should Revisit Moral Rights

Mira T. Sundara Rajan

Copyright law has not entirely lost its ability to surprise. Canada’s latest round of proposed copyright reforms, the third “new” bill in five years, reminds us of one area in which international copyright rules have taken an unexpected twist: performers’ rights.

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EDUCATION: Chapter Seventeen

Copyright, Collectives, and Contracts: New Math for Educational Institutions and Libraries

Margaret Ann Wilkinson

It is more than a decade since the last reforms to the Copyright Act came into force. While the statute has remained static, the “copyright worlds” of institutions involved in the provision of education and library services in Canada have changed dramatically. These changes have come as a result of the ways in which these institutions provide services. They have also come about as a result of the ways in which the actors in the information environment in Canada have changed their behaviours. Whatever the causes of these changes, institutions involved in education, library services, archival activities or museum practice find themselves in increasingly varied positions with respect to changes in the copyright legislation such as those proposed in the current Bill C-32, An Act to amend the Copyright Act. Given these varied positions, it may be difficult to assess just what the impact of the proposed changes will be on this sector. As this chapter will illustrate, the impact that Parliament can have by implementing these changes will be directly affected by the individual managerial decisions of each institutional decision-maker involved in education, library services, archival activity and museum practice in Canada.

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EDUCATION: Chapter Eighteen

Bill C-32 and the Educational Sector: Overcoming Impediments to Fair Dealing

Samuel E. Trosow

This chapter will focus on some of the copyright issues facing Canadian students, teachers, librarians and researchers, and how they will be affect- ed by the educational provisions of Bill C-32 which would amend Canada’s Copyright Act. The bill proposes to add the word “education” as an enumerated purpose to the act’s fair dealing provision, it updates some of the special exemptions for educational institutions that were added in 1997, and it proposes some new special exceptions for educational institutions.

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ACCESS: Chapter Nineteen

Copyright Reform and Fact-Based Works

Teresa Scassa

Information is a hot commodity in today’s economy. In recent years, there has been a dramatic growth in the number of websites, databases, tools and applications that use data from a variety of public and private sources to offer innovative information-based services to a wide range of users. In some cases, the providers of these information tools are traditional disseminators of information. In others, they are established businesses that have developed new information tools and products. In many cases, the innovators are upstarts — small companies or individuals that see opportunities for new and useful applications. The dissemination of infor- mation and the development of new information tools are not limited to commercial enterprises. There is much free content from sources ranging from academic to purely amateur.

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ACCESS: Chapter Twenty

Enabling Access and Reuse of Public Sector Information in Canada: Crown Commons Licenses, Copyright, and Public Sector Information

Elizabeth F. Judge

Although the proactive disclosure of public sector information has been called a “basic right of citizens” and a “public right,” Canada has not yet implemented a national strategy to support public access to public sector information and enable its reuse. Public sector information, which is information created by government in the course of governing, is essential for transparency, accountability, democratic participation, and citizen en- gagement. This article examines public sector information and analyzes developments in Canada and other jurisdictions to promote its public access and reuse. It discusses the extent to which public sector information has been integrated into copyright reform efforts and, where public sector information is copyright protected, it discusses the mechanisms available within the copyright framework to facilitate public access and reuse of public sector information, focusing in particular on licensing. In Canada, Crown copyright restrictions and complicated licensing limit access to public sector information. The article recommends that Canada establish a centralized portal for open government data (www.data.gov.ca) and implement Crown Commons licenses, which together would advance the objective of open government data by ensuring that public sector information is accessible online in usable formats, easily found, and not encumbered by restrictive Crown copyright licensing conditions.

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About the Contributors
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