“Blame Canada” for the Copyright Reform Impetus in EU?

On July 2, 2014 Mme Neelie Kroes who holds the important position of Vice-President of the European Commission (“EC”) responsible for the Digital Agenda, gave an important speech on copyright reform in the EU entitled “Our single market is crying out for copyright reform” in Amsterdam. This was at the Information Influx International Conference at Institute for Information Law, University of Amsterdam. She said many good things in her short speech, such as:

When uncertainty prevents people remixing or creating their own content, how does that boost creativity?

When teachers are afraid to share teaching materials online, how does that help our society?

When a European Video-on-Demand provider tries to expand to new markets, but gives up because clearing copyright is so catastrophically cumbersome: how does that benefit our economy?

When consumers want to buy films or TV shows online but find they are geo-blocked: how does that benefit the fight against piracy? How does it benefit the artists whose works they could be watching?

When lovers of old films have to physically fly to a different country to see them, even if they're no longer in commercial circulation, how does that support European culture?

When museums have to take out insurance specifically against the risk of copyright lawsuits, because it's too complex and costly to figure out – how does that help promote European heritage?

When you can't sing happy birthday, or post a picture of the Atomium, how is that fair or reasonable, how is that something you can explain to ordinary citizens?

When European scientists have to abandon text or data mining because they can't afford the legal fees – how does that help innovation and scientific progress? And by the way that restriction is costing our economy tens of billions of euros.

I see no real winners in any of those cases. Creators lose out; innovators lose out; users lose out; our economy loses out. The system serves no-one. Solve those problems and I see only winners. We just have to jump over our own shadow.

Technology moves faster than the law can, particularly in the EU.

She also went on to say that “Things need to change in Europe and they need to change right now. It's obvious, as other parts of the world have already seen” and she specifically mentions Canada, along with Japan, as examples of countries where copyright reform has recently taken place.

She went on to add that: 

In none of those places has the sky fallen in. All of those places are now innovating, creating, progressing, while the EU lumbers by with an ageing system for an analogue age.

Of course, certain collectives do not take kindly to progress and innovation when it comes to copyright legislation, especially when it involves fair dealing and other copyright exceptions, which the Supreme Court of Canada considers to be “users’ rights”.

So, it’s not surprising that IFRRO – the International Federation of Reproduction Rights Organisations, of which Canada’s Access Copyright is a member, has responded with a “blame Canada” letter full of questionable information and devoid of any causal analysis suggesting that recent developments in Canada have had a very negative effect on educational publishing in Canada. Here is IFFRO’s letter, which is clearly based upon now familiar refrains composed in Canada and thoroughly debunked by Prof. Ariel Katz, earlier this summer here, here, here and here.

And, course, there not a word about the savings in cost to taxpayers and students, and the expansion, liberation and increased access to material that Access Copyright has done its utmost to restrict and to charge for. Access Copyright has taken its aggressive positions regardless of whether the material is within its repertoire by any reasonable legal notion of chain of title or regardless of whether Access Copyright has any clear legal basis for any claim to the rights asserted (such as a linking right) – not to mention what Parliament and the Supreme Court of Canada have confirmed about fair dealing. I should point out that the factum that Prof. Ariel Katz and I prepared in one of the Supreme Court cases – the Province of Alberta case - played an apparently significant role in the current state of Canadian copyright law concerning fair dealing.

Perhaps IFRRO may want to think twice in the future before taking such blatantly one-sided and unsubstantiated positions in such important fora as the European Commission.

So, is the sky falling in Canada or is this all much ado about nothing? The irony of how Access Copyright has dealt inconsistently with these types of arguments has not been lost. Michael Geist pointed this out back in April. On the one hand, Access Copyright argues (incorrectly) at the Copyright Board that the 2012 amendment adding “education” merely “codified” the Supreme Court of Canada cases that, in its view, had a very narrow and limited impact anyway (see here page 13 ff.). On the other hand, it makes virtually the same nearly apocalyptic arguments through IFFRO that it also made unsuccessfully to Parliament in a futile attempt to block inclusion of the word “education” in s. 29 of the Copyright Act. It also “supports” (here at page 29) the seriously misstated and misleading analysis of Canada law by the Association of Canadian Publishers, which I have long ago discussed in some detail here. More consistency and credibility might be helpful to the creator affiliates of Access Copyright, of whom I confess to being one.

HT to Cedric Manara for bringing this EU development to my attention.

HPK