A few notes and observations that I made that the group might find interesting from a session I attended in Toronto, November 6.
In the Balance: Looking forward five years after the Copyright Modernization Act
CCI Copyright Conference
Co-sponsors – Canadian Copyright Institute and McCarthy Tétrault
Interview with The Honourable Marshall Rothstein C.C., Q.C. – conducted by Barry Sookman, Partner, McCarthy Tétrault
A few general comments were made by Judge Rothstein as to the purpose of copyright and trends in the judicial decisions. It seems the importance of incentives for creativity and the fundamental need to protect the products of that creativity has been gradually reduced reflecting the giving of higher priority to societal impacts – “user rights”.
Language in recent judicial decisions reflects an effort to achieve “balance” and “technological neutrality”. These concepts are being applied to trump the proper judicial interpretation of the copyright legislation – expanding and even adding exceptions. These concepts are not in the statute.
The ironic part of this is that the limited protection of copyright exists to give a creator the ability to be remunerated by the user community not to prevent the dissemination of the work. The exceptions are couched as “user rights” in Canada, not as defences to charges of copyright infringement as is the case in many other jurisdictions. The cost and the time required to manage copyrights has become very onerous if not completely out of reach to the creator community.
Lui Simpson, Executive Director, International Copyright Enforcement and Trade Policy, Association of American Publishers
This speaker discussed the mandated review process of the Copyright Modernization Act (5 years after its passing in 2012). Little detail of what that process will entail is available. The sense is that there is an over-emphasis on technology and technology platforms and not on the content. This is a problem, of course, not just in Canada. Since exceptions are now presented as “user rights” the exception will trump and the trend is litigation rather than negotiation and agreement. In the US “fair use” is clearly a defence not a “right”. There are 200 years of doctrine supporting the definition of the four fairness factors in the statute. The technology platform companies are advocating “fair use” to other jurisdictions without recognizing that without this context the defence is not useful to the copyright owner.
WIPO (World Intellectual Property Organization) has also been hi-jacked from an agency dedicated to the protection of intellectual property to an organization focussed on defining wide exceptions for libraries, education, disability (Marrakech Treaty) and incorporating those exceptions into a treaty. The other exception of interest is for non-commercial user-generated content where copyrighted works appear to be useable with impunity.
So far, the progress has been limited.
Canadian copyright owners’ interests have been represented in recent sessions of the SCCR ( Standing Committee on Copyright and Related Rights) by the Chair of the Canadian Copyright Institute, Bill Harnum, because the Canadian government representatives have been touting the Copyright Modernization Act including the creation of education as a purpose for fair dealing as a model to follow.
Creator Panel Discussion – Christine Fischer Guy (novelist and journalist), Damhnait Doyle (singer and songwriter), Scott White (playwright/composer) – Kate Taylor – Moderator (film critic/arts columnist)
All of the panelist members spoke of the need to supplement their creative endeavours with other initiatives, such as teaching, and the extent to which an employed partner subsidizes the efforts.
All spoke of the dramatic reduction in payments received from Access Copyright from licensing since the introduction of education as a purpose for fair dealing in the 2012 Act. Most of the institutions have declined to renew their licenses with Access Copyright and have drafted a set of self-serving guidelines as to the quantity of copying deemed acceptable and the number of copies that can be made. The reductions amount in each case to 80%. Streaming is a factor for the songwriter. Book piracy occurs and pursuing the perpetrators is virtually impossible. The playwright spoke to an instance of assisting a school to stage one of his productions and every script was a copy including the instructor’s – no permission and uncompensated.
One K-12 Canadian publisher has sought bankruptcy protection. Others are seriously considering terminating their Canadian educational and professional publishing programs.
Recommended reading (Lui Simpson) – Move Fast and Break Things – Jonathan Taplin