(Merriam
Webster)
There is a
ticking time bomb buried deep in the 2022 Federal Budget.
It is deviously hidden at page 274 in Annex 3 in a manner so as to avoid detection,
debate and the democratic process itself. This is contrary to a basic campaign
promise Justin Trudeau made in 2015. It saddens me to say that he and Finance
Minister Chrystia Freeland, both in process and substance, appear to have caved
in to greedy lobbyists to the detriment of democracy.
In 2015, Justin Trudeau made a campaign promise to do better
than Stephen Harper, who it will be recalled gave away an extra gratuitous 20
years of copyright protection for nothing in return to the American recording industry
in an omnibus bill just before he lost the 2015 election:
We
will not resort to legislative tricks to avoid scrutiny.
Stephen
Harper has used prorogation to avoid difficult political circumstances. We will
not.
Stephen
Harper has also used omnibus bills to prevent Parliament from properly
reviewing and debating his proposals. We will change the House of Commons
Standing Orders to bring an end to this undemocratic practice.
Amendments
to the Copyright Act
In
Budget 2022, the government proposes to introduce amendments to the Copyright
Act to extend the general term of copyright protection from 50 to 70 years
after the life of the author as agreed under the Canada-United States-Mexico
Agreement.
The
government is committed to ensuring that the Copyright Act protects all
creators and copyright holders. As such, the government will also work to
ensure a sustainable educational publishing industry, including fair
remuneration for creators and copyright holders, as well as a modern and
innovative marketplace that can efficiently serve copyright users.
This is a flagrant
yet stealthy insult to democracy. By using omnibus budget implementation
legislation, there will be nothing but token and extremely little if any debate
or parliamentary scrutiny on these measures. Any hope of opposition is lost
since Canada no longer has a viable opposition party that can do its job in a
minority parliament. The NDP’s ill-conceived three year peace, silence and non-aggression
pact with Justin Trudeau, which has likely guaranteed its own irrelevance and perhaps
even oblivion in the future, will ensure that there is no effective opposition
to this budget or the massive omnibus implementation bill that can soon be
expected.
All Canadians,
ranging from pre-schoolers to the most senior scholars and creators, whether
interested in innovative science and research or just plain fun reading, music
listening, film or art enjoyment will be deprived of access to the “public
domain” for an additional 20 years (meaning life + 70) going forward. Assuming
that the law takes effect on January 1, 2023, that would include the likes of foreign
luminaries such as Noel Coward, Pablo Picasso, J.R. Tolkien, Leonard Bernstein
and John Lennon and Canadian icons such s Northrop Frye, Yousuf Karsh, Marshall McLuhan,
Lester B. Pearson, and Pierre Trudeau himself. It will be good news for certain
publishers, other copyright content owners such as foreign movie and music
industry multinationals, collectives and their executives, lobbyists and – of
course and as always – lawyers for all of the above. It will cost the Canadian
public at least about $474 million a year with a present value of about $4.176
billion, based upon my admittedly facile extrapolation to the
Canadian context from a careful study conducted for the Government of New
Zealand in 2009 in contemplation of the ill-fated TPP.
This amendment
will be a one way ratchet that cannot conceivably ever be undone. As framed in
the budget, it ignores the recommendations from many experts including Prof.
David Lametti, as he then was before he was elected and became Minister of
Justice, and Maria Pallante, the former Register of Copyrights in the USA, that there be mandatory registration to take
advantage of the 20 year extension. This would clear away dead wood and still
allow commercial interests to exploit works that still have a market value.
Here’s my submission from the so-called consultation
process, which has
apparently been ignored along with those of many other well-known copyright scholars.
If the Government can’t figure out how to implement a registration system at
this time, it can at least enable the enactment of registration regulations by
the Governor in Council. Such a deferral of details does not require rocket
science.
The hidden budget time bomb signals that we can expect this
and potentially other even worse copyright measures to be included very soon in
an omnibus bill that will receive virtually no parliamentary scrutiny and be
immune from the usual bulwarks of democracy that Justin Trudeau and Chrystia
Freeland have deemed dispensable. This is nothing if not ironic and frankly
shocking – though hardly surprising given Trudeau’s past record.
What is even worse in the copyright proposals in Budget 2022
is the second paragraph that suggests, in coded but fairly explicit terms to
those in the know, the promise to remove “education” as a recognized fair
dealing purpose in s. 29 of the Copyright Act. It sadly seems that the
responsible Minsters Champagne & Rodriguez are unaware that “teaching (including multiple copies for classroom use), scholarship, or research”
has been hardwired
into American copyright legislation as an essential example of “fair use” since 1976. They are probably
unaware that three decisions of the Supreme Court of Canada since 2004 on fair
dealing were rendered before “education” was explicitly included in s. 29 of
the Copyright Act in 2012. I was
involved in one of these. They are probably unaware that the repertoire of
Access Copyright, who has been doing most of the whining, has very little place
in Canada’s colleges and universities. Engineering, accounting, psychology and
almost all other post post-secondary students are not required to read Margaret
Atwood.
But that’s not all, as they say on TV commercials. Included
and still even worse and nearly explicit, given the context, is the promise to make Copyright Board
tariffs mandatory for users. All of this
would undo two Supreme Court of Canada decisions from 2015 and 2021 in which I also
had a direct and influential role as counsel working with Prof. David Lametti,
as he then was, along with Prof. Ariel Katz in the first case (CBC v. SODRAC). CARL was my client in the later case of York v. Access Copyright where our intervener arguments prevailed.
The result of such an amendment would be an affront to the
Supreme Court and a century or more of legislative history. This would roughly be
the equivalent of legislating that nobody has the right to get from Ottawa to
Toronto except by flying on Air Canada – unless they pay Air Canada’s fare for
an all-year Canada-wide pass or even for
a multi-year period even if they never actually travel from Ottawa to Toronto
that year. In turn, that fare would be set by a small, very expensive, very inefficient,
and extremely dysfunctional Federal tribunal which takes as much as a decade to
render usually retroactive and frequently decisions that are routinely reversed
in the courts. In this case, that would be the Copyright Board, which was deemed “dated, dysfunctional and in dire need of
reform” by a Senate committee in 2016 and which has seen no significant improvements
since then despite a very large increase in its budget. Indeed, the Board has
not even held a hearing in almost five years since September, 2017 with nothing
scheduled until October 18, 2022 and its website has become even worse, despite
enormous expenditures.
This
will not be the first time that Trudeau has played
this Harper trick.
Bill C-86, which was given first reading on October 29, 2018, was 884
pages long. It was an omnibus budget implementation bill that touched
innumerable issues unrelated to an concept of “budget” and amended dozens of
acts unconnected with the budget. It caused much mischief in trade-marks law
and launched the College of Patent and Trademark Agents, an expensive solution
in search of a problem imposed with great expense upon already highly regulated
law firms for no good reason. In turn, even C-86 was not the first Liberal omnibus bill that that broke
that important campaign promise. It followed Bill C-74 earlier in 2018, being the first
budget implementation bill in that sad
year.
Sadly, at this time, the NDP has muzzled itself. And the
Conservatives can hardly be expected to criticize the same undemocratic
methodology that they themselves perfected under Harper.
It is time for Canadians and the organizations that profess
to be concerned with education, research, culture and innovation in Canada to demand
democracy and transparency when it comes to potential enactment of major
deleterious legislation that is so detrimental to the public interest.
Prof. Adam Dodek, the former Dean of Common law at the
University of Ottawa, has written an important article about the legal, including constitutional,
issues that could potentially arise from the use and abuse of omnibus
legislation.
It is absolutely essential in an age where democracy is under
threat everywhere, potentially even in Canada, to ensure that legislation is
dealt with democratically and not be thrown under the omnibus bus.
HPK
PS: Here's a very important open letter to Ministers dated April 13, 2022 from 25 top IP scholars about these issues and the process.
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