A common joke amongst Canadian copyright lawyers goes something like this: What do copyright reform and hot dogs have in common? You don’t want to see how either of them are made.
Despite this light-hearted warning, last Thursday IP Osgoode hosted Glen Bloom from Osler, Hoskin & Harcourt LLP, who delivered a guest lecture entitled “The Evolution of Copyright Reform in Canada” to the copyright law class of Professor Barry Sookman.
As one of Canada’s most distinguished copyright and intellectual property lawyers with over 28 years of experience, Mr. Bloom was ideally suited to provide the audience with a glimpse into the sordid history of Canadian copyright law reform. During the hour lecture Mr. Bloom guided the class through the last 100 years of copyright legislation in Canada including the successes, challenges, and the process reform will need to follow in the future for it to address the tensions currently felt by Canadians.
There is little doubt in the minds of all Canadians that changes to copyright legislation are need. In the last 4 years, two attempts to reform the Copyright Act have failed. The most recent significant reforms were carried out over two phases (with the second phase ending in 1997 and taking over 10 years, instead of the 6 months it was supposed to have taken). And despite making submissions and signing the WIPO copyright treaties in 1996, Canada has yet to honour its international commitment by enacting law that would implement the treaties.
While there may be a consensus on the need for copyright reform, there is a large amount of dissention amongst the various groups on what reforms are needed. Mr. Bloom noted that it is only within recent history that there has been such a significant involvement of grass roots organizations and the public in copyright reform. He attributes this in no small part to digitization and the internet which has facilitated the copying and distribution of works at all levels of society. Indeed in the late 1980s, copyright was an esoteric subject. Now, there are over 100 active copyright lobbyists at the federal level, and many interested stakeholders across the web.
While it was evident that Mr. Bloom thought that the increased awareness of copyright in both industry and the public consciousness was a good thing, he did caution about the dangers of reforming copyright solely based on the views of those with narrow interests.
“The Copyright Act is a complex statute that cuts across industries, activities, and creative endeavors. Changing one provision to advance an industry may have wide ranging consequences on another field. Because of this, it is dangerous to look at narrow viewpoints. The legislation needs to be examined as a whole to see how it impacts the entire creative community.”
Mr. Bloom went on to give an example of an attempt by the Federal government to reform copyright by letting public consultations drive the development. Jettisoning the creation of a copyright framework based on a thoughtful analysis of guiding principles, government officials instead flew around Canada holding open public consultations seeking input on copyright reform. The end result was what one would expect from a consultation process that had no framework or leadership to guide discussions – it was transcript of a wide range of views on what copyright law should be, but little guidance on the structure or how to reconcile the disparate views into a cohesive whole.
Despite the government’s poorly conceived attempts at copyright reform, Mr. Bloom also recounted two instances that had promise:
In early 1990s, Industry Canada began to draft an entirely new copyright bill from scratch without taking into account the antiquated 1911 UK Copyright Act (on which current legislation is based). Industry Canada focused on core principles to drive the design of the new piece of legislation.
Later on in the mid 1990s, with the rise of the information highway, a copyright sub-committee headed by David Johnston was established to look at the intersect between copyright and the development of the internet. The report was issued in 1995 and made the following recommendations to drive copyright reform:
- Copyright would affect the advance of the internet and as such there needs to be a balance between encouraging creation through protection yet allowing dissemination to permit the internet to grow.
- Creators and users need to be encouraged to develop frameworks that would not establish barriers limiting the development of the internet.
- Copyright legislation needs to encourage creativity on the internet.
- Creativity would need to be encouraged by the exchange of information.
Ultimately, both efforts went nowhere. The committee drafting the new copyright act was disbanded, and the recommendations from the Johnston report were not incorporated.
Mr. Bloom ended his discussion highlighting the changes that would need to take place to allow for effective copyright reform. First, the Department of Canadian Heritage and Industry Canada need to come together and speak with with one voice on copyright issues. Second, there needs to be a project champion that can drive the process and keep the reform on-track. And third, the process of reform needs to move away from using interest groups to drive development in the early stages. Instead, thoughtful analysis and principles should drive the reform and be supplemented with consultation from outsiders that have a balanced voice and can provide guidance on the complex issues of copyright.
A video recording of Mr. Bloom’s lecture will be archived on the IP Osgoode website and made available for viewing in the near future.
2 Responses
“the process of reform needs to move away from using interest groups to drive development in the early stages” is a theoretical ideal – but unlikely to occur in today’s political climate. Unfortunately, much of the drive for new copyright legislation is coming from interest groups.
Ironically, Canada’s delay in copyright reforms has actually made it look “wise” on the world stage where other jurisdictions are learning that DMCA-type legislation creates a myriad of unwanted results, and may – in fact – create a net harm by stifling (instead of promoting) the creation of original works, competition, and software (and related IT) developments .
It is only the US which has made a hobby of presenting poorly researched (or entirely fabricated) numbers and blaming existing Canadian legislation (I recommend Bill Patry’s commentary on this topic). Even Lehman, the architect of the DMCA, has urged Canada to “think outside the box” when it comes to reform. Sadly, this is unlikely to happen.
Thanks for the comment Ernst. “Wise” may be the way Canada is perceived on the world stage, but I wonder if many Canadians would say the same. Maybe “cautious” is a better characterization. Then again, wise and cautious seem to impute a conscientious decision on Canada’s part not to do something. It seems from the comments of Mr. Bloom and others that it is more like indecision, lack of direction, lack of political leadership, and disagreement amongst the stakeholders that is driving Canada’s reform (or the lack thereof).
If this is the case then I would agree with your comments that Canada is unlikely to “think outside of the box” when it comes to copyright reform – both for the content of reform AND the process of reform.
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