Lost in the iPod Shuffle “Tax” Shuffle

Charlie Angus, M.P. from Timmins, is the able NDP copyright critic and is doubtless Parliament’s most accomplished professional musician, although he has yet to perform with Yo-Yo Ma. But he is a two time Juno award nominee. Earlier this week, he caused a stir on the Hill with two items. The proposed iPod “Tax” Bill - which could have hit on everything from iPod Shuffles to Blackberries and even personal computers - did not sit very well with most people - and especially not well with the two responsible Ministers and the Government. Within no time, Minister Clement called it “nonsensical” and Minister Moore said “Consumers deserve lower, not higher taxes.” That’s a pretty decisive response from the Government, I would say.

Lost in the shuffle and the ensuing noise, spin and misinformation, was Mr. Angus’ other item, which was a very positive suggestion dealing with “fair dealing”:

M-506 — March 15, 2010 — Mr. Angus (Timmins—James Bay) — That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act, specifically by deleting section 29 and inserting the following: “29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright. 29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include: (a) the purpose of the dealing; (b) the character of the dealing; (c) the amount of the dealing; (d) alternatives to the dealing; (e) the nature of the work; and (f) the effect of the dealing on the work.”.

Mr. Angus' wording is a good first draft of what should be done in the legislation. It certainly merits discussion, as the Globe and Mail masthead editorial yesterday confirmed:

Mr. Angus also tabled a motion that would expand the Copyright Act's definition of "fair dealing," allowing the reasonable use of copyrighted materials for innovation, research and study - a welcome move.

Mr. Angus’ approach is completely consistent with the landmark decision of the 2004 Supreme Court of Canada in CCH v. LSUC. Indeed, it may do nothing more than to codify it. The CCH decision has been incorporated into the pantheon of American copyright scholarship by William Patry, author of one of the two leading treatises on American copyright law. Mr. Patry comments on how Chief Justices McLachlin's' reasoning on behalf of a unanimous Court in CCH fits into a great common law tradition in the evolution of “fair use” and “fair dealing” that is consistent with the ultimate purpose of copyright law, which is to “encourage learning.” According to Patry:

What Judge Leval [Appellate Judge of the 2nd Circuit Court of Appeals in the USA and fair use scholar], Chief Judge McLachlin [of the Supreme Court of Canada], and the early common-law judges who created fair use understood is that copyright is a system; it is not a thing, it is not a property right. Copyright is a means to an end, the end being to encourage learning. All learning is a community experience, and one that takes place over generations, over decades, over centuries. For any system to function, it must take into account, in a meaningful, liberal way, the manner in which humanity proceeds. In the case of copyright, this means that fair use must be viewed as an integral part of the system, and not a begrudging exception to a Hobbesian state of nature where ruthless enforcement of exclusive rights as private property is the ideal.”

So much for the “moral panic” comments circulating about the ills of the “fair use” approach and how it will hurt all manner of creators. It is no accident that America creates and exports both commercially and artistically successful culture and innovation with astonishing success. Its long standing embrace of an open ended common law evolution of permitted “fair” use in copyright law has served American creators and innovators very well, not to mention incredibly successful corporate interests in the content industries. In order to create great new content, it is necessary to absorb, use, “remix” and deal with previous work in a fair way. That cannot be circumscribed by a closed door approach and a list of often picky and silly exceptions, such as the infamous Canadian “dry erase board” provision introduced in 1988 - yes - 1988, not 1788.

This discrepancy hurts the Canadian creators who are supposedly being helped by some powerful corporate lobbyists, who never hesitate to profess to speak on the creators’ behalf. Maybe the reason that so many of Canada's talented comedians, film producers and others have moved to the USA is, at least in part, that we can’t do much satire or parody in Canada because of past restrictive interpretations of fair dealing, which may or may not be good law any more but are still on the books and have not been overruled. Nothing chills the creative spirit like the threat of litigation in the morning.

And so much for the bizarre suggestions under the lead authorship of a well known lobbyist that an approach such as that of Mr. Angus would violate the Berne Convention. If so, Canada would be in good company, namely that of the USA itself. It taxes credibility to suggest that there would be such a challenge over an amendment that essentially codifies the decision of Canada’s Supreme Court, which in turn incorporates and reflects more almost two centuries of the Anglo-American common law approach to the evolution of what is fair and permissible in the context of copyright.

Thus, it is more than curious why there is such a concerted effort driven by those same American corporate interests that have done so well under the US copyright system to deny Canada the benefits of one of the better aspects of the American approach and jurisprudence. Make no mistake - these folks are trying to push back and to effectively undo the decision in CCH v. LSUC.

Meanwhile, these same lobbyist folks are equally busy trying to force Canada to adopt the bad aspects of the US system as embodied in the DMCA approach, which has not worked well. Take this not from me but from the “architect” of the DMCA and the WIPO treaties, Bruce Lehman.

Canada has an opportunity to show leadership by picking the best features from other countries’ copyright laws, learning from their mistakes, and adding some considerable “made in Canada” value.

Recent Ministerial pronouncements are very promising indeed. We optimistically look forward to a copyright system that Canadians deserve and need and that will outlast the persistent attempts of lobbyists who would like to control the future of culture and technology by going backwards in time.

Bravo, Charlie Angus, for provoking discussion on this crucial “fair dealing” issue. Let’s hope that the fair dealing discussion doesn’t get lost in the the iPod Shuffle “tax” shuffle.

HK