Friday, August 29, 2008

C-61: history and context

I mentioned in my first post that I had an interest in copyright reform. Here in Canada, there's a public debate underway about Bill C-61, An Act to Amend the Copyright Act. This is a complex piece of legislation. It's also, in my view, not a particularly good one, for a number of reasons. But, before getting into detailed discussion it's worth taking a moment to establish a bigger picture: how did we get here; and what's going on, anyway? (See also this chronology, which includes additional information.)

The bill was introduced on June 12, 2008, by the Honourable Jim Prentice, Minister of Industry and the Honourable Josée Verner, Minister of Canadian Heritage and Status of Women and Minister for La Francophonie. The government has made some effort to try to give them equal billing, but Mr. Prentice has largely taken the lead. The web site for government communication about the bill is within Industry Canada's domain, for instance. This is itself noteworthy. Traditionally, Copyright has been seen in Canada as primarily the purview of the Department of Canadian Heritage, placing the emphasis on its role in cultural policy. Giving the Department of Industry the lead role would rather strongly suggest that the present government is more interested in the commercial aspects of copyright policy.

The bill, of course, does not arrive in a vacuum. For one thing, there are World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which Canada signed in 1997 but has not implemented or ratified. Ever since then, the question of how (and whether) to implement these treaties has been one of the central questions of copyright reform in Canada. But there are many others: copyright reform is a complex issue with many stakeholders looking for often contradictory outcomes. This tends to lead to the so-called "piling-on" effect, where each party insists that its interest be catered-to in the next revision of the Copyright Act. In recognition of this, the so-called Section 92 Report recommended that a piece-wise approach be adopted in which copyright reforms would be grouped into more manageable "thematic" packages. The "short term" package was recommended for adoption within "1 to 2 years" (i.e. by 2004), and would have included "the four digital issues and other WIPO treaty issues, access and education, photographic works, and transitional periods for unpublished posthumous works".

Of course, this didn't happen. At least not under that (Chrétien majority) government, and not by 2004. (There were a couple of smaller changes to the Copyright Act, during this period: one that excluded Internet re-transmitters from rights that cable and satellite operators have access to, and another that partly dealt with the issues about unpublished postumous works, and created an exemption to allow archival reproduction in more circumstances.) Meanwhile, the Standing Committee on Canadian Heritage released an Interim Report with a different set of recommendations. But in 2005, the Martin minority government introduced Bill C-60, which was closer to the Section 92 Report proposal. This bill died when the Martin government was defeated, in 2006.

A copyright reform bill from the Harper government appeared on the Notice Paper on December 10, 2007. Fearful of what that bill would likely entail, Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, started the Fair Copyright For Canada Facebook Group, with a stated goal of helping "ensure that the government hears from concerned Canadians". The group quickly attracted tens of thousands of members. As I write this, the group has 91,468 members. (I'm one of them.)

And the media noticed. So did the government. As noted above, the bill ultimately wasn't introduced until June (right before the House recessed for the summer break). It has been suggested that the intervening period was used to add some "consumer friendly" provisions, which might have been hoped to make the legislation more palatable to average citizens. However, these provisions have a number of limitations that make them less useful than they might be.

Over the summer, there has been a certain amount of discussion of the bill, particularly among its opponents. A casual web search for "C-61" turns up a lot of criticism, and not a lot of support. However, this probably has a lot to do with it being summer; the larger organizations are apparently taking their time to study the bill, prepare analyses and formulate strategies. If Parliament re-convenes in the fall, we can presumably expect to see more involvement from organizations like the Creator's Copyright Coalition, who can probably be expected to support the implementation of the WCT and WPPT. (Though one might expect them to also point out that their Platform on the Revision of Copyright calls for a host of additional measures that have not been included.)

As I write this, however, most observers seem to believe that there will be a fall election. If this happens, the Conservative Bill C-61, like the Liberal Bill C-60 before it (that's a co-incidence, by the way: the numbers come from the order in which the bills are introduced within a Parliamentary session), will die on the Order Paper, and the next government will have its own chance to introduce legislation. Either party could re-introduce either one of those bills, or a new one; or the issue could drop off the legislative agenda for a while.

But the debate, and the pressure behind it, won't go away, even if the bill does. Yesterday, John Degan of the PWAC put out a release noting that "[t]he Professional Writers Association of Canada (PWAC) encourages Canadian voters, media and politicians to ensure information economy issues are front and centre in any coming federal election, and into the next legislative session." I agree entirely, even though I would probably disagree with them about what that should entail or lead to.

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