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
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