Six Ways to Simplify Canadian Copyright Revision and WIPO Ratification

Here is the gist of my presentation yesterday at the September 1, 2009 Peterborough Round Table event hosted by Dean Del Mastro, M.P. I will shortly post a comment about this very positive event.
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September 1, 2009
Howard Knopf
Roundtable Presentation Peterborough, Ontario
(check against delivery)

I am Howard Knopf. I've been a copyright lawyer for almost 30 years. I've been active in Government, in academia, at WIPO, and involved in some of the most interesting and important recent copyright cases at all levels, including in the Supreme Courts of both Canada and the USA. Although I am the Chairman of the CBA Copyright Policy Committee, I am not here today in that capacity or on behalf of any of my clients, which include both owners and users of copyright and who range from the very largest of corporations to the most modest of individuals. I'm here today only because I care about copyright law and I care about Canada.

In order to succeed in this revision effort, we need above all to simplify. Here are a half dozen specific positive things we can do:

1. The fair dealing provisions should be simplified by making them clearly an inclusive and illustrative list and not exhaustive. This can be done very simply by including words such as "such as" and words such as "teaching (including multiple copies for classroom use)" as we see in the US law. We also need an exception for "satire and parody", which our courts, unlike the US Supreme Court, have denied us. This simplified approach would also eliminate the need for the pages upon pages of complex, unnecessary, and even harmful particular exceptions that certain parts of the educational community believe would actually be helpful - despite the much more helpful approach of the Supreme Court of Canada in the landmark CCH case in 2004. Such an approach would also take care of most of the concerns of museums, archives and libraries.

2. The levy provisions in the current law should be simplified by their elimination. They are an obsolete relic from the analog era and a continental European socialistic collective approach that has been rejected in the USA, UK and Australia. By keeping the levies, and worse still by adding a so-called “iPod tax", we will greatly hinder WIPO ratification, because the national treatment principle would require that Canada's levy liability will literally be doubled at a possible cost of hundreds of millions a year. The levy scheme is wholly contained in Part VIII of the Copyright Act. Snip and it's gone. It's really that simple. And the door will then be open for WIPO ratification.

3. Remedies should be simplified so that the punishment fits the crime. Statutory minimum damages should be simply eliminated other than in circumstances where there is clearly provable commercial scale and "for profit" activity involved. Canada is not a place where it should even be theoretically possible to have such an outcome as the two million dollar judgment against a single mother for downloading 24 songs, as we saw a few weeks ago in Minnesota. The Canadian recording industry failed in a similar effort a few years ago. Now it wants the law changed to make it easier for them the next time. Don't give them the opportunity - because they will surely use it. And don’t even think about “three strikes” or the so-called “graduated response” approach. It would be a policy and political disaster. You don’t take away the family car because one of the kids gets caught speeding.

4. The circumvention debate should be simplified by making circumvention clearly legal for any legal purpose, such as fair dealing, time, space and format shifting, bypassing regional coding, access for the blind or other perceptually handicapped persons, archiving for backup purposes and, of course, repairing a computer damaged by malware from copyright owners seeking to impose DRM and TPM. Any product that is capable of substantial non-infringing use should be legal. Otherwise, we will never again see innovations such as photocopiers, VCRs, personal computers, iPods, etc. To simplify the DRM/TPM debate, we need protection from DRM and TPM technology and not for it.

5. We need to clarify and simplify the complex question of whether copyright law can be used to control or even prevent free trade in legitimately made articles sourced from abroad where the copyright involves only the packaging or labelling other merely incidental elements of the product. Copyright law was never intended to restrict free trade and competition in products such as chocolate bars or wrist watches.

6. Above all, we need to simplify by ensuring technological neutrality and clear, general language. Our 1921 legislation, based on the classic 1911 British model, comprises the core of our current legislation. It's still pretty good. It was short, elegant and largely technologically neutral - even at a time of great technological ferment a century ago.

Canada has a choice now - which is to have one of the best new copyright laws anywhere or to have one of the worst, such as Bill C-61 would have given us. We don't need another 50 page "Made worse in Canada" incomprehensible C-61 type rewrite of the failed US DMCA approach. We should emulate the best of the US and other statutes, not the worst. My half dozen suggestions could be drafted in a matter of days, not weeks or months. If the Bill is more than half a dozen pages long, we will already be in big trouble. We already have one of the strongest and best copyright laws in the world. Let’s make it even better.

Thank you for your attention.

Howard Knopf