Wednesday, November 28, 2018

My speaking notes for my presentation to the House of Commons INDU Committee for its s. 92 Statutory Review of the Copyright Act

Here are my speaking notes for my presentation to the House of Commons INDU Committee for its s. 92 Statutory Review of the Copyright Act. Here’s the webcast. My introductory remarks are at the 16:23:14 mark. There were good submissions as well from Marcel Boyer, Mark Hayes and Jeremy de Beer.


I’ll try not to repeat what I’ve said in the last week to the Senate BANC committee and yesterday to the CHPC committee. But I will repeat one thing I said yesterday which was this:
There’s no “Value Gap” in the copyright system. However, there’s a serious “values gap” in the fake news that is being disseminated these days about IP in general and Canadian copyright revision in particular.

Today I’ll talk about a few other issues and flag some that I’ll include in more detail in my written brief due December 10, 2018.

1.   We need to clarify that copyright board tariffs are not mandatory for users

The elephant in the room is the issues of whether Copyright Board tariffs are mandatory. They are not. I successfully argued that case in the SCC three years ago – but most of the copyright establishment is in denial or actively resisting. A tariff that sets the maximum for a train ticket from Ottawa to Toronto is fine – and we used to have such tariffs before deregulation. But travellers were always free to take the plane, bus, their own car, a limousine, their bicycle or use any other legal and likely unregulated means.

Choice and competition are essential – not only for users but for creators. Access Copyright charges educators far too much for much too little. And it pays its creators far too little – they got an average of $190 for 2017 from Access itself and from their share of the publishers’ portion.

There is intense litigation ongoing between Access Copyright and York University – now in the appellate stage and other litigation in the Federal Court involving school boards.

Unfortunately, York failed in the trial court to address the issue of whether final approved tariffs are mandatory. Hopefully, the FCA and maybe the SCC if necessary will get this right in due course. But we can’t be sure, and the other side is lobbying you heavily on this issue, including with such devious and disingenuous suggestions as imposing a statutory minimum damages regime of 3 – 10 the tariff amount on the  totally inappropriate basis of symmetry with the SOCAN regime – which is the way it is for good reasons that go back more than 80 years but would be totally inappropriate for tariffs outside the performing rights regime.

I urge you to codify and clarify for greater certainty what the SCC has said in 2015, consistently in turn with previous SCC and other jurisprudence going back decades – that Copyright Board tariffs are mandatory only for collectives but optional for users, who remain free to choose how they can best legally clear their copyright needs.

2.   We need to keep current fair dealing purposes in s. 29 and include the words “such as”

The SCC had already included the concept of education in fair dealing before the 2012 amendment kicked in. The USA allows for fair use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use)” (emphasis added). I ask you to ignore siren calls urging you to delete the word “education” from S. 29 and urge you to add the two little words “such as”, as our friends and neighbours in the USA have had for 42 years.

3.   We Need to Ensure that fair dealing rights cannot be overridden by contract

The SCC has said (Royal Trust v. Potash, [1986] 2 SCR 351, 1986 CanLII 34 (SCC), ( that consumers cannot lose their statutory rights by contracting out or waiver in the case of, for example when it comes to paying off a mortgage after 5 years. We need to clarify and codify a similar principle that fair dealing rights and other important exceptions cannot be lost by contracting out or by waiver.

4.   We need to explicitly make technical protection measures (“TPM”) provisions subject to fair dealing

We need to clarify that users’ fair dealing rights apply to circumvention of technical protection measures at least for fair dealing purposes in s. 29 and for many if not all of other exceptions provided in the legislation as appropriate.

5.   We need mitigation for the nation

We need to mitigate the damage done by copyright term extension under both the Harper government (as deeply buried in an omnibus budget bill) and by this Government in the USMCA. These concessions could cost Canada hundreds of millions a year – and must be given now to the EU and all our other WT) TRIPs treaty partners because of the most favoured nation and national treatment principles to which Canada is bound. One small mitigation measure might be the imposition of renewal requirements and fees for those extra years of protection that are NOT required by the Berne Convention.

6.   We need to look carefully at enforcement issues.

I know you are under immense pressure from some very well-funded and powerful lobbyists and lawyers on site blocking. I’m not convinced that we need any new legislation on this issue but I’m looking into it carefully and may perhaps write about. In the meantime, you should be looking at the existing (not proposed) provisions in s. 115A of the Australian Copyright Act and UK case law.
We may also need to somehow address the issue of mass litigation against thousands of ordinary Canadians who happen to “associated with an IP address that is the subject of a notice under s. 41.26(1)(a)” and who are alleged to have infringed a movie that could be streamed or downloaded for a few dollars. This litigation is not “akin to a parking ticket”. There are systematic efforts to extract “settlements” of thousands of dollars from terrified internet account holders who may never have heard of BitTorrent until they get that dreaded registered mail letter. These efforts may succeed in many cases because access to justice is very difficult in these circumstances. If the government would do its job on the notice and notice regulations, that might be a good start.

7.   We need to repeal the blank media levy scheme

We need to get rid of the zombie-like levy scheme Part VIII of the Copyright Act and stop listening to the big three multinational record companies who conjure new kinds of taxes on digital devices, ISPs, internet users, the cloud, and whatever else looks lucrative. Even the USA doesn’t entertain such fantasies.  

8.   We need to stop this five years review ritual

We have had two major and two medium scale revisions to Canadian law in the last 100 years a few more focused ones in between. There is no need for periodic copyright policy review. It’s lucrative for lobbyists and lawyers. But it’s a waste of time – including Parliament’s time. Reacting reflexively and prematurely to new technology is usually very dangerous. If we had listened to the whining of the film industry in the early 80’s, the VCR would have become illegal and Hollywood as we know it might have committed economic suicide. Who of us of a certain age can forget the words of Jack Valenti, the famous Hollywood lobbyist, who told Congress “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”
Particular issues can be addressed as needed, which is the way most other countries cope with copyright.
Thank you. I look forward to your questions.

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