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Indigenous paradigms

Fair Duty by Meera Nair - 5 hours 20 min ago

This post is a bit late; it is my contribution to #IndigenousPeoplesDay.

In December 2017 Ministers Navdeep Bains and Melanie Joly jointly issued instructions to Members of Parliament charged with carrying out the Review of the Copyright Act. Among many details, the Ministers invited Members “to pay special attention to the needs and interests of Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.”

Historically, Indigenous creative effort has not fared well under the modern paradigm of intellectual property rights. From looting of artifacts to casual help-ourselves approaches to indigenous design, indigenous assets, often described as cultural property and traditional knowledge, are used in ways that violate their traditions and laws. To the extent that others commercialize such assets, rarely do gains flow back to the community.

From the first meeting on, Committee members sought input from witnesses on this topic. In oral testimony, and submitted briefs, there is consensus that this challenge needs attention; this may be the one point of unity among all stakeholders of the copyright review. That in itself is encouraging.

However, it is difficult to make progress on this front under the auspices of copyright. The Copyright Act is structurally antagonistic to the principle characteristics of indigenous cultural property and traditional knowledge, namely they lack specific authorship (which is key to claiming ownership under the Act) and may date back to antiquity (which invariably places them in what is considered the public domain*).

As we wrestle with the intricacies of this challenge, there are other ways to show support and facilitate more respectful use of Indigenous materials.

In July 2016, An Open Licensing Scheme for Traditional Knowledge was jointly put forward by the Canadian Internet Policy & Public Interest Clinic (University of Ottawa) and the Geomatics and Cartographic Research Centre (Carleton University). The scheme “aims to give Indigenous communities new tools to exert control over their traditional knowledge [and] clarify expectations of those seeking licensing rights and other downstream uses (8).”

Modeled in the fashion of Creative Commons licenses, where a visual label indicates the creator’s wishes in terms of subsequent use, the researchers revealed a slate of possible labels including: Give Back / Reciprocity; Community Consent, Use-Based / Noncommercial; Education and Research Only; etc.  They also drew attention to two other similar, active, operations with respect to labels as a means of communication: the Mukurtu Project and its sister organization Local Contexts. While communication cannot guarantee respect for the wishes of Indigenous communities, it is a starting point.

In addition, Canadians could consider that Indigenous paradigms about creative endeavor are more akin to the creative process, than modern insistence that creativity is an individual exercise and that property is strictly private. My research looks at the overlap of Indigenous paradigms with Canadian copyright law — not in terms of the specificity of legal language, but in the processes that underwrite and shape creativity itself.

To be clear, when I use the phrase Indigenous paradigms, I am not suggesting a uniformity of thought, tradition or law, across the many Indigenous communities situated within Canada. Rather, the phrase is an attempt to describe a different approach to creativity and property than that which followed in the wake of Judeo-Christian theological teachings or (for the more secular minded) the writings of John Locke. Modern conceptions of intellectual property are rooted in assumptions about property itself – chief among them, the misconception that a right of property is absolute in its control and capacity to exclude others. (Even the most treasured property – land – is subject to measures deemed essential to the public good: building codes, zoning divisions, environmental laws, etc.)

All music, art, poetry and literature are creative outcomes via time immemorial communities of musicians, artists, poets and writers. This is hardly a revelation; Northrop Frye’s words have been with us for over sixty years: “Poetry can only be made from other poems, novels from other novels. All this was much clearer, before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

Briefly, that assimilation to private enterprise was largely carried out through the introduction and expansion of copyright. Those events are intertwined with the rise of the reading public, the shaping of a book market, new technology; events that combined to alter the perspective of where art, music and literature came from. While previously art was allied to the Divine – inspired by and in service to – the Romantics were never too happy with a world in which books were articles of sale, and writers were mere producers of commodities. As authors wrestled with changing streams of income and the need to compete in a marketplace, the idea of the individual creative genius whose work is original unto himself served to shelter the esteem of an author and justify the boundary of property around a creation. Ironically though, authors themselves were never a focal point in the development of copyright law.

In concert with the universality of the process of creativity is a bond between creative artifact and the author, artist, musician etc. In intellectual property law, this has a name: moral rights. (The term is misleading; despite the somewhat pious inference, the rights reflect personal connections between the creator and the thing-created.) Among moral rights is the protection of the integrity of the work – the creative artifact has a persona,** which sits in relation to the creator.

And there might be another relationship present; Rudyard Kipling famously spoke of daemons who led the creative process, writers must “drift, wait, obey.” Contemporary writers are not shy of acknowledging this third-party, Elizabeth Gilbert and Philip Pullman come to mind. Even without this partner, writers may have the eerie feeling that their characters are writing their own story. (I welcome input from writers of fiction.)

This nexus of relationships occurs with the creative artifact situated at the centre and a community of writers engaging in relationship with it. A set of relations that is similar to the structure of Indigenous cultural property/traditional knowledge. It is the interpretation of property that differs between Indigenous and non-Indigenous paradigms; in Indigenous hands, property is far more immersive, far more relational, one belongs to the property as compared to the converse interpretation of property by non-Indigenous legal paradigms.***

As I wrote in my brief to the Standing Committee: “… recognizing indigenous traditions that we implicitly already follow, supports the objectives of the Truth and Reconciliation Commission, particularly the recurring call for better integration of indigenous law into Canadian life

Much as we acknowledge that the physical ground beneath our feet is Indigenous territory, we ought also to acknowledge those Indigenous paradigms which serve as the foundation to our daily creative effort.

* My research offers an alternative, legitimate conception of the public domain that is more flexible in its composition — I draw from the work of Jessica Litman and our Supreme Court decisions.

** Anishinaabe legal scholar Aimée Craft reminds us that some jurisdictions have granted personhood to bodies of water. That physical or cultural property could have agency, at least in legal proceedings, is, again, not a revelation.

*** Brian Noble, “Owning as Belonging/Owning as Property …” in Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage and Law (Vancouver: UBC Press, 2008) 465.

Net Neutrality and NAFTA: Canadian Government Says It Will Address U.S. Policy Should Harms Arise

Michael Geist Law RSS Feed - Fri, 2018/06/22 - 09:49

The Canadian government has released its response to the Standing Committee on Access to Information, Privacy and Ethics report on net neutrality. The report featured a strong endorsement of net neutrality and raised concerns with Bell’s site blocking proposal. The government response emphasizes its support for net neutrality, highlighting the current legal framework. While the response does not directly address the site blocking proposal (noting it would inappropriate to comment on a case currently before the CRTC), it reiterates that it has the power to vary, rescind, or refer a CRTC decision back for reconsideration, perhaps a signal that a CRTC decision favouring site blocking could face a government response to rescind or review.

The most interesting aspect of the response involves the international considerations, particularly the U.S. reversal of its support for net neutrality. The government acknowledges the concerns with how U.S. policy could affect Canadians and promises to take action, including pursuing outcomes in the NAFTA renegotiation:

The Government of Canada is mindful of the concerns of Canadian enterprises and citizens over the recent changes in the United States (US) to its net neutrality regime and will seek to address with the US any situation whereby a Canadian enterprise is negatively affected by the traffic management practices of a US ISP. In the event that US ISPs engage in traffic management practices that harm Canadian interests, the Government will proactively seek to address these concerns to ensure that the US is meeting its commitments under the North American Free Trade Agreement (NAFTA), including through the established NAFTA committees and co-operation provisions, and will engage with its international trade partners to promote an open Internet based on international best practices. Furthermore, the Government of Canada will pursue outcomes in the renegotiation of NAFTA that continue to provide for reasonable and non-discriminatory access for Canadian businesses to US telecommunications networks and services, including those of an ISP, and recognize the importance for consumers being able to access and use services and applications of their choice on the Internet.

While Canada presumably has bigger NAFTA concerns at the moment, the firm commitment to net neutrality, including within trade negotiations, sends a strong signal that the net neutrality has emerged as a foundational principle of Canadian digital policy.

The post Net Neutrality and NAFTA: Canadian Government Says It Will Address U.S. Policy Should Harms Arise appeared first on Michael Geist.

Site Blocking, The Sequel: After Telling Courts They Can Issue De-Indexing or Blocking Orders, Movie Industry Calls for More in Copyright Act

Michael Geist Law RSS Feed - Thu, 2018/06/21 - 11:32

Representatives of the motion picture association appeared before the Standing Committee on Industry, Science and Technology this week as part of the copyright review and called on the government to ensure the law permits site blocking and search result de-indexing rules to address piracy concerns. The representatives, who acknowledged under questioning from Liberal MP David Graham that the Motion Picture Association of America (MPAA) and Motion Picture Association Canada (MPAC) are the same organization, also argued to increased liability for Internet intermediaries.

The MPAA/MPAC called for the following reform:

allow rights holders to obtain injunctive relief against online intermediary service providers. Internet intermediaries that facilitate access to illegal content are best-placed to reduce the harm caused by online piracy. This principle has been long recognized throughout Europe where Article 8.3 of the EU copyright directive has provided the foundation for copyright owners to obtain injunctive relief against intermediaries whose services are used by third-parties to infringe copyright. Building upon precedents that already exist in Canada in the physical world the act should be amended to expressly allow copyright owners to obtain injunctions, including site-blocking and de-indexing orders, against intermediaries whose services are used to infringe copyright.

Article 8.3 of the EU Copyright directive states:

Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Lobbying for an explicit site blocking and de-indexing injunction provision is presumably designed as a back-up to the site blocking proposal currently before the CRTC. Yet the reality is that Canadian law already provides for injunctive relief in appropriate circumstances with the Supreme Court of Canada’s Equustek decision one of the more recent manifestations of courts issuing orders to non-parties in support of intellectual property rights. Indeed, the MPAA/MPAC’s global association intervened in that case, where it argued:

Canadian courts have equitable jurisdiction to grant ancillary orders against non-parties to give effect to existing orders. This authority is not new, and it is not limited to persons interacting face-to-face or businesses operating in bricks-and-mortar shops. This authority also applies to the internet, provided that the court has jurisdiction in respect of the relevant parties…Canadian courts have jurisdiction to grant equitable relief to enforce orders concerning unlawful activity online, including by enlisting intermediaries’ assistance to curtail wrongdoers’ attempts to circumvent the rule of law.

In other words, the MPAA/MPAC has previously argued before the Supreme Court that Canadian courts already have the power to issue injunctions that could include site blocking or site de-indexing. There is no guarantee that courts will issue such an injunction – courts around the world have consistently identified the challenge of balancing protection of intellectual property rights with the implications of site blocking on freedom of expression – but a comprehensive, impartial court review with full due process is precisely what should be required before the power of the law is used to block access to content on the Internet or require the removal of search results. That is one reason the Bell coalition site blocking proposal is so problematic and why the movie industry’s latest call for additional site blocking injunction rules in the Copyright Act are, by its own admission, unnecessary.

The post Site Blocking, The Sequel: After Telling Courts They Can Issue De-Indexing or Blocking Orders, Movie Industry Calls for More in Copyright Act appeared first on Michael Geist.

How Did George Brown College Come to Support the FairPlay Site Blocking Plan? Docs Show Bell Lobbied the School’s President

Michael Geist Law RSS Feed - Wed, 2018/06/20 - 12:05

How did George Brown College President Anne Sado come to write a letter in support of the Bell coalition website blocking plan?  Given the prior reports on Bell’s internal astroturfing campaign and the pressure on a Brock University executive (subsequently distanced by the University) it will come as little surprise to learn that the origins stem from direct Bell lobbying. According to documents obtained under provincial access to information laws, Mark Milliere, TSN’s Senior Vice President and General Manager (part of Bell Media) relied on the same playbook as with Brock University, citing its support for the college and urging it to write in support to the CRTC. The request included sample letters from Brock and Ryerson University (more on Ryerson in a forthcoming post).

The George Brown College letter is notable for several reasons. First, the Bell website coalition’s reply to comments on its proposal specifically referenced it as demonstrating support from Canadian colleges for its proposal. Second, it came from the College President, which Bell advised would have more impact. Third, Sado was warned that there were concerns with the proposal, but after discussing directly with Bell decided to write in support.

Much like the Brock University lobbying effort, the Bell pressure began with a letter to a known contact.


Bell George Brown request, March 22, 2018, obtained under FIPPA


The contact forwarded internally, noting Bell’s support for the school and its programming.


Dumanksi Email, March 22, 2018, obtained under FIPPA


Once the issue made its way to Sado, she asked her team whether there were reasons not write a letter, advising that she would speaking directly to Bell.


Sado Email on support, March 23, 2018, obtained under FIPPA


That sparked a warning from the Director of Corporate Communications that there were concerns and some risks. After Sado spoke directly to Bell, she dismissed those concerns and decided to write the letter, though notably asked Luigi Ferrara, the College’s Dean of the Centre for Arts, Design and Information Technology if he would be willing to write the letter in his name.


Sado Email to Ferrara, March 23, 2018, obtained under FIPPA

After Bell advised that the letter would have more impact if it came from the College president, the final submission came directly from her.


The post How Did George Brown College Come to Support the FairPlay Site Blocking Plan? Docs Show Bell Lobbied the School’s President appeared first on Michael Geist.

CRTC Rebuked: Government Signals Frustration With the Commission Prioritizing Carriers Over Consumers

Michael Geist Law RSS Feed - Fri, 2018/06/15 - 09:42

Telecom issues were in the spotlight yesterday with the government ordering the CRTC to “examine claims of aggressive or misleading sales practices concerning telecommunications services, the prevalence and impact on consumers, as well as potential solutions.” The Order-in-Council, which was accompanied by a request to the Competition Bureau to provide assistance, follows CBC reports on misleading sales tactics from companies such as Bell and Rogers and the CRTC’s rejection of a request to conduct an inquiry into the matter. The announcement from Innovation, Science and Economic Development Minister Navdeep Bains is a welcome development, signalling the government’s frustration with a CRTC under new chair Ian Scott that has seemingly abandoned consumer interests.

The difference in perspective between the government and the CRTC on the misleading sales tactics is instructive. The CRTC’s response to PIAC’s request for an inquiry amounted to little more than a message to Canadian consumers that they were on their own:

I note that Canadians already have a variety of options available to them to seek redress depending on the nature of the issue. If Canadians consider that their wireless, Internet, home phone or TV service provider has not provided clear and accurate information to them about their contract(s), or is not acting in a manner consistent with the CRTC’s Wireless Code or Television Service Provider Code, they should first try to resolve the issue with their service provider.  If the matter is not resolved to their satisfaction, they are encouraged to escalate the complaint to the Commissioner for Complaints for Telecom-Television Services (CCTS).

In contrast, the government’s order-in-council recognizes that misleading sales tactics by their nature means that most consumers won’t know that they have been misled. As the government notes:

those misleading or aggressive sales practices may include the abuse of information asymmetries by Canada’s large telecommunications carriers in order to benefit those carriers

The same point is made in its letter to the Competition Bureau:

There are reports that these practices exploit the unequal level of information possessed by sales agents relative to consumers and that vulnerable Canadians are more likely to be harmed.

In other words, the market features systemic inequality and simply assuming that most consumers can identify misleading tactics and take steps to remedy the issue by complaining to the company or the Commissioner for Complaints on Telecommunications Services is pure fiction. That the CRTC did not recognize its responsibility in addressing these issues is deeply troubling. Indeed, the government’s order identifies several things it should have investigated, including whether there are misleading practices, measures to monitor consumer risks, the effectiveness of consumer protections, and potential ways to strengthen or expand those protections.

The absence of the consumer from the CRTC’s world view of the telecom market is consistent with its recent broadcasting report that envisions new Internet and wireless taxes that will increase consumer costs and its earlier decision to reject new measures to inject competition into the marketplace through MVNOs, relying instead on the creation of new low-cost data-only plans. A proceeding into the carrier proposals is underway, sparking a Competition Bureau submission that highlights why the CRTC’s measures are inadequate and the “low-cost” plans priced far above costs. The Bureau laments that “market power concerns persist in the Canadian wireless industry” with the following consequences:

When market power is exercised, prices are higher, and wireless penetration is lower, than in a market that is competitive. The exercise of market power forces some consumers, who would purchase a product or service at a competitive price, to forego such purchase because prices, as a result of market power, are simply too high. These consumers no longer participate in the marketplace, and these foregone purchases create what economists refer to as deadweight loss.

That is the state of the Canadian wireless market, yet the CRTC chose to claim “there have been positive signs that the intensity of facilities-based competition is increasing across the country”, focusing more on the investment of the carriers than on the actual pricing and affordability of wireless services. The CRTC concluded that low-cost data plans would help address the affordability issue, leading to proposals that the Competition Bureau notes exceed wholesale pricing by more than 300 percent:

The Bureau also notes that the prices of proposed plans filed by Canada’s national wireless carriers exceed the wholesale roaming rate by a wide margin. Table 2 reports the results of calculations comparing the wholesale roaming rate per megabyte of data with prices per megabyte proposed by Canada’s national wireless carriers in this proceeding. These calculations show that the proposed prices exceed wholesale prices by more than three hundred percent.

The over-priced “low-cost” data-only plans are little surprise given that the CRTC has given every sign in repeated decisions over the past year that it will prioritize the interests of carriers over consumers. Yesterday, the government made it clear that needs to change.

The post CRTC Rebuked: Government Signals Frustration With the Commission Prioritizing Carriers Over Consumers appeared first on Michael Geist.

Music Canada at the Copyright Review: “Illegal Content is Drifting Away”

Michael Geist Law RSS Feed - Thu, 2018/06/14 - 10:25

Music Canada was one of several witnesses that appeared before the Standing Committee on Industry, Science and Technology this week as part of the copyright review. The group continued its campaign on the so-called value gap, largely ignoring huge increases in streaming revenues with claims about legislative reforms that bear little resemblance to the Canadian experience. While those arguments will be old news to the committee members, it was the discussion of piracy and government handouts that merit attention.

With respect to piracy, the industry acknowledged that unlicensed streaming has largely disappeared. When asked about the YouTube music channel Vevo, Music Canada’s Graham Henderson responded:

“98% of everything that’s on YouTube is licensed now, right, because we’re all remunerating it. The days of it all being illegal content is drifting away.”

Henderson went on to say that he wasn’t exactly sure who Vevo is, an odd comment given that it is owned by music labels Sony Music Entertainment, Universal Music Group and Warner Music Group. In fact, Vevo recently struck an advertising deal with YouTube that highlights how the industry is capitalizing on the potential of ad-based streaming services.

Yet even more remarkable was the committee discussion on one of the four main “asks” from the music industry. After Henderson opened with a specific request for an annual $40 million handout from the government for private copying (the lack of payment being implausibly characterized as “an unfair subsidy”), committee members asked for specifics. It started with MP Frank Baylis:

Baylis: I’m going to talk, then, about private copying. I think, Ms. McAllister and Mr. Henderson, you brought that up. When we used cassettes, discs, and blank CDs, there was a levy put on them. That doesn’t exist, I believe you said, due to a court case. It doesn’t exist, let’s say, when iPod came out, or my phone that has music. Do I understand and maybe you could elaborate that you’d like to see it applied to these mediums, and what amounts? Do you have any amounts that you’re thinking of? How would you see that being distributed among the artists? I’ll ask both of you.

Henderson: What’s being asked by the community, and I think we’ve all aligned on this, is not to
impose a levy on consumers but to seek a fund, a temporary four-year fund. The number that has come up is about $40 million per year. That is, therefore, not a levy. It becomes something that comes out of Treasury, and it’s a decision that the Government of Canada will have to make as to whether it feels it’s important enough to remunerate artists and others for private copying, which, by the way, is what happens elsewhere in the world, often through levies. But that’s not our proposal.

After Henderson called it temporary and another witness reiterated that the fund would be a short term measure as the government developed new legislation to apply the tax to all devices, MP Dane Lloyd questioned the fairness of a broad based device tax:

Lloyd: If it’s just a blanket levy on a device, wouldn’t you admit that there are people who could buy these devices who won’t be infringing on any copyright?

Henderson: I think the important thing is if you were to go the fund route, then we’re not worried
about impacting consumers.

Lloyd: That’s the short-term route.

Henderson: Yes, but it could be the long term. The point would be that the government is recognizing the importance of performers and others getting paid for this type of copying.

In other words, despite having said it was a temporary measure minutes earlier, Henderson switched gears to argue it could be long-term. In fact, as Lloyd continued, Henderson acknowledged that he opposes a levy on devices:

Lloyd: So in my last 30 seconds, you would say there’s no better way that you can think of to implement a levy than to put a levy on devices?

Henderson: Well, I personally think it should be a fund.

Having now acknowledged that he does not support a levy on devices and would like the government handout to run on a long-term basis, MP Mary Ng wanted more details and Henderson desperately wanted to change the subject:

Ng: So beyond the four years then, we talked about moving towards a system where there could be levies, and then the levies would actually generate the income. If I think about it at the macro level, the income of the content creators has been so disrupted because of the overall disruption following the emergence of the Googles, Youtubes, etc., right? So how do we get to a place, then, where in that rebalance the content that is created by the creators then has a fair compensation in the new world? Right? A fund is a fund but presumably, somewhere down the road, you’re going to
have to increase it because there’s more content generated, etc., so that’s not sustainable.

Henderson: No, I think that this is absorbing a lot of attention here today, but it’s actually a minor
piece in the puzzle.

What message did the Music Canada appearance leave the committee on the issue of a device copying tax or massive government handout? Presumably with the view that it is asking for $160 million for copying despite acknowledging that in a streaming world “illegal content is drifting away”, admitting that it actually opposes a levy, and that what it originally billed as a “short term” solution is really a long-term expectation that taxpayers will spend hundreds of millions of dollars for non-existent copying.

The post Music Canada at the Copyright Review: “Illegal Content is Drifting Away” appeared first on Michael Geist.

Off the Rails: How the Canadian Heritage Copyright Hearings Have Veered Badly Off-Track

Michael Geist Law RSS Feed - Wed, 2018/06/13 - 11:52

The Standing Committee on Canadian Heritage has conducted several weeks of hearings as part of its study on Remuneration Models for Artists and Creative Industries. While the copyright review is the responsibility of the Standing Committee on Industry, Science and Technology, the heritage committee was asked to conduct a study to help inform its work. The mandate was described in the following motion:

That the Standing Committee on Industry, Science and Technology request that the Standing Committee on Canadian Heritage conduct a study, in the context of copyright, on remuneration models for artists and creative industries, including rights management and the challenges and opportunities of new access points for creative content such as streaming and emerging platforms.

That Standing Committee on Canadian Heritage call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.

That Standing Committee on Canadian Heritage provide Standing Committee on Industry, Science and Technology with a summary of testimony and recommendations related to the items mentioned above for the parliamentary review of the Copyright Act.

The study still has a long way to go as the committee is accepting requests to appear until September 28, 2018 and briefs until December 14, 2018. Yet to date, the committee has done little to meet its actual mandate of hearing from a broad range of stakeholders to explore remuneration models and emerging platforms. Instead, it has largely provided a forum for some creator groups, particularly copyright collectives, to get a duplicate opportunity to present their case for reforms.

The recent witnesses bring few new ideas or even updated data on new business models. For example, on May 29th, the committee did hear from one musician from the Jerry Cans, but more of the time was allocated to the Canadian Private Copying Collective to argue for a $160 million handout as an alternative to taxing the sale of all digital devices in Canada. On May 31st, music groups emphasized reforms such as copyright term extension, a tax on all smartphones, the imposition of Cancon requirements on online music services, ISP licensing, and ISP liability for the activities of their subscribers. It was more of the same the following week with many more music collectives including Re:Sound and SOCAN raising the same issues that will come before the Industry committee.

Over a two week period, the committee heard from one artist appearing on his own behalf and 17 copyright collectives, publishers, rights management companies, and other music associations:

  • Society of Composers, Authors and Music Publishers of Canada
  • Canadian Independent Music Association
  • ole
  • Society for Reproduction Rights of Authors, Composers and Publishers in Canada
  • Artisti
  • Association québécoise de l’industrie du disque, du spectacle et de la vidéo (ADISQ)
  • Re:Sound Music Licensing Company
  • Songwriters Association of Canada
  • Canadian Music Publishers Association
  • Guilde des musiciens et musiciennes du Québec
  • Professional Music Publishers’ Association
  • Alliance nationale de l’industrie musicale
  • Canadian Federation of Musicians
  • Canadian Private Copying Collective
  • Conseil québécois de la musique
  • Music Canada
  • The Jerry Cans
  • Société professionnelle des auteurs et des compositeurs du Québec

Committees should hear from a wide range of stakeholders representing all perspectives, however to date, there has been no user representation, no innovative business, and few artists appearing on their own behalf. In the music context, where are the streaming services? Where are the other businesses that are finding innovative ways to use music in the digital environment? Where are the artists with experience in the digital marketplace?

The problem with the study is not limited to the one-sided perspectives. The hearings have also directly overlapped with the work of the Industry committee raising questions of the need for a duplicate set of hearings. Rather than supplementing the Industry committee with a focus on remuneration models for artists and creative industries as required by the mandate, much of the Heritage committee discussion emphasizes tired reform proposals such as term extension or copying taxes. In fact, witnesses at Industry have referenced their Heritage appearances, suggesting there is little reason for both if the Heritage committee veers far from its mandate. There are still many months to go, but getting back on track requires repositioning the hearings consistent with the original motion and taking the instructions calling for a broad range of stakeholders seriously.

The post Off the Rails: How the Canadian Heritage Copyright Hearings Have Veered Badly Off-Track appeared first on Michael Geist.

Canadian Music Industry Wants Government to Pay Copying Fee for Every Smartphone Sold in Canada

Michael Geist Law RSS Feed - Mon, 2018/06/11 - 10:10

Last fall, months before the start of the Canadian copyright review, the Canadian Private Copying Collective, the collective that administers the tax on blank CDs that has long advocated for extending the payments to iPods and other electronic devices, met with senior officials at Canadian Heritage including Deputy Minister Graham Flack and Melanie Joly’s chief of staff Leslie Church (over two days the collective also met with politicians such as Dan Ruimy, Peter Van Loan, and Pierre Nantel). According to documents released under the Access to Information Act, the collective arrived with a startling demand, asking the federal government to pay $160 million over the next four years to compensate for music copying.

The demand, which now forms part of the platform of demands from the Canadian music industry, is based on a $40 million annual handout. While the industry has not provided details on how it arrived at its figure, notes (likely from Graham Flack) reveal the basis of the demand.


CPCC meeting notes, obtained under Access to Information Act

First, the industry argues that legislative reform will take too long, so rather than changing the law to apply to all smartphones and similar devices sold in Canada, it wants the government to pay what it believes would be the equivalent revenues directly out of tax revenues. Second, the source of the $40 million is revealed in the notes. The CPCC wants a copying payment for every device sold in Canada. It estimates that in Europe there is a per device copying fee of $3.50. In Canada, that would yield $40 million.

The demand is striking for several reasons. First, private copying of music has gradually diminished as Canadians gravitate to subscription services such as Spotify or ad-based streaming services that remove the need for copying. The government memo notes that “a functional, fully-licensed music streaming marketplace reduces the practice of unlicensed copying by consumers.” Second, the government also notes in the preparatory materials that private copying revenues are declining in many countries including Japan, Poland, and Portugal, which recognize the diminishing relevance of music copying in a subscription-based world.

As I wrote in a piece on the broader music industry demands, the Canadian music market is growing much faster than the world average, with Canada jumping past Australia last year to become the sixth largest music market in the world. Music collective SOCAN, a coalition member, has seen Internet streaming revenues balloon from $3.4 million in 2013 to a record-setting $49.3 million in 2017. Yet despite the success stories, the CPCC and the broader music industry wants a $160 million handout based on the premise that every device sold in Canada should have a music copying fee attached to be paid by taxpayers.

The post Canadian Music Industry Wants Government to Pay Copying Fee for Every Smartphone Sold in Canada appeared first on Michael Geist.

The CRTC’s Fundamental Flaw: Broadcasting May Be the Internet, but the Internet is Not Broadcasting

Michael Geist Law RSS Feed - Fri, 2018/06/08 - 10:52

Canada’s communications regulator last week reversed decades of policy by recommending that the government implement new regulation and taxation for internet services in order to support the creation of Canadian content. The report on the future of program distribution, which will surely influence the newly established government panel reviewing Canada’s telecommunications and broadcasting laws, envisions new fees attached to virtually anything related to the internet: internet service providers, internet video services, and internet audio services (wherever located) to name a few.

My Globe and Mail op-ed notes with the remarkable popularity of services such as Netflix and YouTube, there is a widely held view that the internet has largely replaced the conventional broadcast system. Industry data suggests the business of broadcasters and broadcast distributors such as cable and satellite companies won’t end anytime soon, but it is undeniable that a growing number of Canadians access broadcast content through the internet.

The foundation of the Canadian Radio-television and Telecommunications Commission report, which garnered applause from cultural groups that have been asking for internet regulation since the 1990s, was aptly summarized by NDP MP Pierre Nantel, who tweeted “the internet IS now the broadcast system.”

Yet Mr. Nantel and the CRTC have it backward. It may be true that the broadcasting system is (or will soon be) the internet, but the internet is not the broadcasting system. Indeed, the decision to treat the internet as indistinguishable from broadcast for regulatory purposes has sent the CRTC down a deeply troubling path that is likely to result in less competition, increased consumer costs, and dubious regulation.

The CRTC maintains that internet access is “almost wholly driven by demand for audio and video content.” However, its own data contradicts that conclusion since it also notes that 75 per cent of wireless internet traffic is not audio or video. The reality is that internet use is about far more than streaming videos or listening to music. Those are obviously popular activities, but numerous studies point to the fact that they are not nearly as popular as communicating through messaging and social networks, electronic commerce, internet banking, or searching for news, weather, and other information.

From the integral role of the internet in our education system to the reliance on the internet for health information (and increasingly tele-medicine) to the massive use of the internet for business-to-business communications, internet use is about far more than cultural consumption. Yet the CRTC envisions the internet as little more than cable television and wants to implement a taxation system akin to that used for cable and satellite providers.

There are several significant problems with viewing the internet through the prism of a broadcasting system. First, the CRTC mistakenly thinks that since (a) it regulates broadcast and (b) broadcast is now the internet, then (c) it must now regulate the internet. However, given that the internet is much more than just broadcast, the CRTC’s proposal would attempt to regulate far more than the broadcasting sector.

The CRTC recommendation covers any audio or video services that touch Canada, presumably including foreign media organizations, podcasters, and video game makers. There is no reason to conclude that the commission should be entitled to regulate these entities, but that is precisely where its logic ultimately leads. Further, faced with the prospect of Canadian regulation, some of those services could decide to geo-block Canada, concluding that a relatively small market was not worth the regulatory costs and hassles.

Second, the taxation (or mandated contributions) for cable and broadcast to support Canadian content production are at least premised on the fact that a cable subscription provides little other than access to broadcast content. The internet offers a limitless array of possibilities that have nothing to do with broadcasting, however, rendering the policy link far more tenuous. Governments can (and do) support the creation of Canadian content through grants, tax credits, and other subsidies, but foisting support on a monthly internet or wireless bill stretches the definition of the conventional broadcast system beyond recognition.

Third, precisely because the internet is such an integral part of our daily lives, ensuring universal, affordable access is a competing policy goal that should not be so easily discarded. But the CRTC provides little more than an unconvincing assurance that the impact of new internet taxes will be “cost-neutral”, even though Canadians who only rely on internet access will clearly pay more under the proposed approach. The government has handed this policy conflict to its review panel, asking it to consider new ways to support the creation of Canadian content while at the same time confirming that it opposes an “approach that increases the cost of services to Canadians.”

The CRTC report suggests that the government and its review panel think they can have it both ways with new taxes but no new costs. Yet its proposed approach is grounded in the past, with an ill-fitting solution that wrongly expands the CRTC broadcast regulatory mandate and new taxation into every corner of the internet.

The post The CRTC’s Fundamental Flaw: Broadcasting May Be the Internet, but the Internet is Not Broadcasting appeared first on Michael Geist.

Math Not Magic: If Melanie Joly Mandates Internet Taxes, Consumers Will Foot the Bill

Michael Geist Law RSS Feed - Wed, 2018/06/06 - 09:59

The government launched its telecom/broadcast review yesterday and the discussion immediately turned to Internet and Netflix taxes. Despite the wide array of issues ranging from net neutrality to the CBC before the newly established panel, for many the focus of its recommendations and the government response will ultimately come down to whether there are new Internet regulations and taxes established to support the creation of Canadian content.

Canadian Heritage Minister Melanie Joly and Innovation, Science, and Economic Development Minister Navdeep Bains both commented on the issue, suggesting divergent priorities. Bains told the Toronto Star:

For me, a critical issue is making sure that Canadians do not pay more. This is really around quality, coverage and price, and price is something that Canadians have expressed as a concern.

Joly’s emphasis was not on consumers, but rather contributions from any service connected to the Internet, telling the Wire Report:

All players in the system must contribute. So if you’re part of the system, you have to contribute, and there’s no free ride. But that can’t be at the expense of Canadians.

I have argued that there is no need for new Internet taxes to fund Cancon as there is no Canadian content emergency. The Canadian production industry has experienced record investment in recent years, demonstrating that Joly’s initial instinct to focus on export markets and the discoverability of Canadian content was the right approach. But after facing criticism over a Netflix deal that brought hundreds of millions into the industry, Joly has been consistently inconsistent on the Internet tax message, fomenting uncertainty and lingering suspicions that the end-game is now Internet taxes and regulation.

In fairness, it should be noted that Prime Minister Justin Trudeau has been steadfast in opposing new Internet taxes. For example, when the Canadian Heritage committee recommended an Internet tax seemingly out of the blue last June in its report on local media:

The Committee recommends to expand the current 5% levy for Canadian content production on broadcasting distribution undertakings to broadband distribution.

Trudeau unequivocally rejected the recommendation an hour later while the committee was still presenting its findings at a press conference:

We respect the independence of committees and Parliament and the work and the studies they do, but allow me to be clear: We’re not raising taxes on the middle class – we’re lowering them. We’re not going to be raising taxes on the middle class through an Internet broadband tax. That is not an idea we are taking on.

Months later, the official government response explained the policy rationale for rejecting Internet taxes:

The Committee’s recommendation to generate revenue by expanding broadcast distribution levies so that they apply to broadband distribution would conflict with the principle of affordable access. The open Internet has been a powerful enabler of innovation, driving economic growth, entrepreneurship, and social change in Canada and around the world. The future prosperity of Canadians depends on access to an open Internet where Canadians have the power to freely innovate, communicate, and access the content of their choice in accordance with Canadian laws. Therefore, the Government does not intend to expand the current levy on broadcast distribution undertakings.

Despite clear messaging from the Prime Minister, for the past year Joly has sent mixed messages about Internet taxes. Her launch of Creative Canada last September assured Canadians there would be no new taxes:

When it comes to content, Canadians want choice. But we know that access and affordability of Internet and wireless are real issues for many. Broadband coverage is uneven across the country. We pay some of the highest rates in the world. Our government won’t increase the cost of these services to Canadians by imposing a new tax.

A week later, Le Devoir reported that Joly was targeting Internet providers, noting Joly’s tweet to  Pierre Karl Péladeau asking why Videotron wasn’t paying cultural contributions and comments that a new system would be developed to ensure those benefiting from the Internet provide cultural funding.


Melanie Joly tweet, 1 October 2017, https://twitter.com/melaniejoly/status/914635791313272832


In February, Trudeau was asked about making “web giants pay their fair share” during Question Period in the House of Commons. His response:

We explicitly promised in the 2015 election campaign that we would not be raising taxes on Netflix. People may remember Stephen Harper’s attack ads on that. They were false. We actually moved forward in demonstrating that we were not going to raise taxes on consumers, who pay enough for their Internet at home.

Yet two days later, Joly was asked the same question, but offered a different response:

Mr. Speaker, the Prime Minister was very clear on this. We made a promise and we plan to keep it. That being said, we recognize that in the long term we need to develop a comprehensive solution for taxing digital platforms. We are not going to take a piecemeal approach.

In fact, just yesterday, Joly’s press release on the review panel included the quote “the principle guiding this review is clear: if you profit, you contribute—there is no free ride.” Hours later, a department official qualified the quote by telling Cartt.ca that “the government will reject all proposals that increase what Canadians pay.” The same tension arose during a Joly appearance at the Senate in the afternoon, where she alternately told Senators “all the players who benefit from the system, including Internet giants, must contribute. There are no free passes” and “I will also be making affordable Internet access a priority.”

When asked how to reconcile the competing goals of mandated contributions with no additional consumer costs, Joly responded to the Wire Report that “the panel will find solutions.” The panel led by Janet Yale features some of Canada’s leading experts, but they are largely lawyers, not magicians. The simple reality is that for all the talk of cost-neutral schemes, forcing Netflix to pay its share, or demanding that ISPs contribute to the system, if Joly mandates new Internet taxes, basic math suggests Internet costs will go up and Canadian consumers will ultimately foot the bill.

The post Math Not Magic: If Melanie Joly Mandates Internet Taxes, Consumers Will Foot the Bill appeared first on Michael Geist.

Government’s Telecom/Broadcast Review Sets Up Internet Taxes and Regulation As a 2019 Election Issue

Michael Geist Law RSS Feed - Tue, 2018/06/05 - 12:39

The government unveiled the members of its telecom and broadcast review panel this morning setting the stage for Internet access taxes, Netflix regulation, and the imposition of cultural policies on telecommunications to emerge as a 2019 election issue. The new panel will be chaired by Janet Yale, who brings experience from both telecommunications and broadcasting to the role. The remaining six panel members line up nicely as telecom nominees (Hank Intven, my colleague Marina Pavlovic, and Monica Song) or broadcast nominees (Peter Grant, Monique Simard, and Pierre Trudel).

The leaked coverage this morning paints the panel as an effort to redraft broadcasting regulation with Internet companies such as Netflix and Facebook firmly in the government sights. Yet the reality is far more complex with terms of reference that touch on a wide range of telecom and broadcast issues. The Canadian Heritage perspective may be focused on broadcast and Internet regulation (despite repeated assurances that there is no support for new Internet taxes), but the ISED view will be focused on competition, consumer issues, and net neutrality. Last week’s CRTC report provides momentum for Internet taxes and regulation, however, the government has yet to provide much of a response. Indeed, the instructions to the panel reflect the departmental tensions with language that supports both sides and questions that touch on everything from consumer protection to the CBC.

Given the timelines – the panel is expected to release an interim report in a year – there will be no legislative changes during the current government. However, the timing virtually guarantees that this will be an election issue in the fall of 2019. With the CRTC report and the panel’s interim recommendations, the government will have to take a position on Internet taxation and regulation. While the digital sales tax issue is relatively easy to address, the broader recommendations of widespread Internet regulation and taxation on Internet access will require all parties to adopt a clear policy position.

My general perspective on the potential combination of the two statutues was articulated in an April 2017 op-ed in the Globe and Mail, namely that broadcasting and telecom policy serve different purposes and objectives. The key section in the op-ed:

Revisiting Canada’s twin communications laws is regarded by the cultural lobby as the opening to treat telecommunications regulation as a matter of cultural policy in what would amount to the Broadcasting Act taking over the Telecommunications Act, with the Internet treated as little more than a giant cable-television system.

Few Canadians would view their wireless or Internet connections as a matter for cultural regulation, but that is precisely what the cultural groups envision. Indeed, in light of an earlier Supreme Court of Canada decision that rejected attempts to impose cultural taxes on Internet service providers owing to the separation of the two statutes, creating a combined culture-focused Communications Act would establish a fundamental change in Canadian Internet regulation.

Yet, the reality is the policy objectives of telecommunications and broadcast do not mesh well, making it difficult to craft a single communications statute. Telecommunications regulation is fundamentally about competition and consumer protection. The rules are designed to foster affordable network access, effective consumer rights through transparency and redress and to prevent the temptation of vertically integrated telecom giants to grant their own content preferential treatment.

Those rules must be adapted for the Internet – decisions scheduled for release this week by the Canadian Radio-television and Telecommunications Commission on net neutrality that address equal access for Canadian content and applications are the Internet’s version of old battles over common carriage – but the twin policy goals of competition and consumer protection remain largely unchanged.

Broadcast policy, on the other hand, is primarily a cultural policy document designed to maximize the benefits of broadcast spectrum in a world of scarcity. In that analog world, the “broadcast system” features policies such as licensing requirements, Cancon contribution mandates, public-broadcaster support and simultaneous substitution policies as a means to encourage the creation of Canadian content and to safeguard broadcast space for domestic content.

The broadcast world of scarcity has given way to a world of abundance, however, with no channel limits nor restrictions on the ability for anyone to “broadcast” or distribute their content to a national or international audience. Instead, the key ingredients to encourage cultural choice and to provide incentives for creativity include equality of network access, marketing, distribution and ease of discovery in a world of seemingly unlimited content.

Given the seemingly endless reviews and reports, there is considerable fatigue on this issue. Yet given what is at stake, Canadians will need to pay attention and speak out in the months ahead.

The post Government’s Telecom/Broadcast Review Sets Up Internet Taxes and Regulation As a 2019 Election Issue appeared first on Michael Geist.

Why the Government’s Copyright Board Plans Threaten to Spark Another Lobbying Battle

Michael Geist Law RSS Feed - Tue, 2018/06/05 - 09:09

Copyright reform has long been viewed as one of the more contentious policy issues on the Canadian agenda, pitting creators, education groups, innovative companies, and a growing number of individuals against one another in processes that run for years and leave no one fully satisfied. Indeed, my Hill Times op-ed notes the copyright review currently underway before the Standing Committee on Industry, Science and Technology promises to run for months with MPs hearing from a broad range of stakeholders presenting perspectives that will be difficult to reconcile.

Given the somewhat messy politics, last fall the government identified a short term solution that appeared to have wide-ranging support. Innovation, Science and Economic Development Minister Navdeep Bains and Canadian Heritage Minister Mélanie Joly announced the substantive policy questions would be left to the copyright review, but that the government would move quickly to address the administration of copyright by introducing long-overdue reforms to the Copyright Board of Canada.

The strategy was a political slam-dunk since both creator and user groups have expressed frustration with the slow processes at the board, which are said to foster marketplace uncertainty and leave creators waiting years to be paid. A public consultation identified the solutions: more funding for the board, a clear articulation of the its mandate, the introduction of case management techniques commonly used in litigation, and strict time limits to stop delay tactics. My submission to the consultation can be found here.

Yet despite an easy political and policy win, the issue is now mired in internal disputes that threaten to sideline the broader copyright review process as parties gear up for a battle over board reform. The source of the dispute is not the administrative changes to the board. Rather, some are also pushing for substantive changes that would have significant implications for broader copyright policy that threaten to create massive liability risks for some copyright stakeholders. The substantive change at issue is described as “tariff harmonization”, which sounds innocuous but would result in a radical change to copyright policy and pre-empt much of the work of the Industry committee.

Canadian copyright law features two different approaches to the use of tariffs determined by the copyright board. Some tariffs, such as those for music collective SOCAN, are mandatory owing to concerns over competitive practices. This means the collective must file tariffs with the board, which determines the appropriate rate. Since the filing with the board is mandatory, the law provides for the possibility of a statutory damages multiplier, meaning that users that fail to pay the prevailing tariff may owe several times more than the actual licence fee.  This helps foster compliance, sets a cap on statutory damages, and represents a quid pro quo for the mandated filing approach.

Alternatively, for some tariffs, such as those involving Access Copyright, the use of the board is optional. This leaves it to rights holders to determine if they want to privately negotiate their rates or have the board establish a rate for the market. Since the process is optional, there are no statutory damages multipliers in effect.

Despite the obvious differences in approach, the government is considering “harmonizing” the two approaches, by granting statutory damages multipliers for both tariff systems. Not only would the approach undo the policy rationale behind multipliers for statutory damages within Canadian copyright, but it would also have a dramatic impact on substantive copyright issues such as fair dealing.

Access Copyright, which supports the measure, argues that the massive escalation in potential damage awards are needed for three reasons: deterrence, promotion of settlement negotiations, and efficient use of court resources. Yet as I argued in this post, none of the arguments ring true.

More can be found at the Hill Times op-ed. However, with a framework in place to win broad support on the administration of copyright and a process at the Industry committee to grapple with the substantive issues, the government established a viable reform process that seems suddenly set to go badly off-track. In doing so, it may turn an easy win into a political quagmire that once again leaves stakeholders largely dissatisfied.

The post Why the Government’s Copyright Board Plans Threaten to Spark Another Lobbying Battle appeared first on Michael Geist.

The 1980s CRTC: The Commission Turns Back the Clock with Old-Style Regulation and Privileged Insider Access

Michael Geist Law RSS Feed - Mon, 2018/06/04 - 10:08

The CRTC was long perceived by many Canadians as a captured regulator, largely inaccessible to the public as it dispensed decisions that safeguarded incumbents from disruptive competition. That reputation was buttressed by initial decisions on regulating Internet telephony, permitting Bell to engage in Internet throttling, and supporting a usage based billing approach that hampered competition. In recent years, some policies changed with the adoption of net neutrality regulations and the efforts of former chair Jean-Pierre Blais to prioritize consumer interests. Yet over the past few months, the CRTC under new chair Ian Scott seems determined to turn back the clock with a commission more comfortable with industry stakeholders and their priorities than consumer groups and facilitating competition.

Last week, I wrote about this trend with respect to lost transparency and privileged access for the industry. My post argued that public trust in the CRTC “is in danger of being frittered away as stakeholders fear a return of privileged access for industry that leaves the public interest stranded far from the centre of the Canadian communications system.” That post focused on the significant increase in lobbyist meetings, the presentation of the FairPlay site blocking proposal to commission staff months before it was available to the public, and meetings with the NFL while the issue of simultaneous substitution of the Super Bowl broadcast was before the commission.

The concerns about changing rules of access are matched by the equally troubling trend of CRTC decisions in which the consumer perspective is practically nowhere to be found. In just a matter of months, the CRTC has rejected policies that might foster greater wireless competition, dismissed calls for an inquiry into questionable telecom sales practices, and placed limits on cost awards for public interest organizations. The combined effect of those decisions points to a commission seeking to restore an old-style regulatory environment with less disruption both in the market and at hearings in Gatineau.

Last week’s CRTC report on “harnessing change” of programming distribution represents an even more dramatic return to the pre-digital days of old. While the report may be “digital-first”, its thinking is distinctly pre-Internet. In the commission’s view, the Internet is barely distinguishable from cable television and should be regulated and taxed as such. Despite ample evidence to the contrary – the CRTC’s own data says that 75% of wireless Internet access is not audio or video – it claims that Internet access is “almost wholly driven by demand for audio and video content.”

With that starting point, it is no surprise that it envisions regulating any audio or visual service that touches Canada and taxing all Internet services as if they were cable or satellite. In fact, the CRTC sets the stage for an unprecedented level of intervention, bringing digital news organizations, podcasters, and streaming audio services wherever located into its regulatory ambit. Moreover, it opens the door to Canadian households paying additional fees for all of their broadband and wireless subscriptions.

Rather than adopting a forward-looking approach, this proposed framework has the feel of something out of the 1980s, in which the interests of consumers are barely addressed, the production of Canadian content is assessed primarily through the prism of regulated support mechanisms, and the CRTC views its regulatory power as virtually limitless.

What might this new (or old) commission foreshadow for several outstanding policy issues?

The future of the Super Bowl simultaneous substitution decision is surely in doubt. The weak response from the major wireless companies on affordability might still be enough for a commission that is untroubled with increasing wireless costs for consumers. The FairPlay site blocking proposal, which should be dismissed on jurisdictional grounds alone, gets new life from a commission that thinks it can “harness change”. And though net neutrality is now firmly entrenched as government policy, as new issues emerge the CRTC may be less receptive to extending or fully enforcing the principle.

In short, this is the 1980s pre-Internet CRTC with a pro-consumer approach seemingly a thing of the past.

The post The 1980s CRTC: The Commission Turns Back the Clock with Old-Style Regulation and Privileged Insider Access appeared first on Michael Geist.

my brief for the Copyright Review

Fair Duty by Meera Nair - Fri, 2018/06/01 - 13:14

As submitted to the Standing Committee:

Thank you for this opportunity to contribute to the examination, and potential revision, of the Copyright Act. This subject has occupied my attention for nearly fourteen years, through life as a graduate student, teacher, researcher, administrator, and parent.

Copyright is a seemingly straight-forward provision; a measure within law that allows a copyright owner to monetize intellectual effort, by controlling (among other things) the right of reproduction. This control is not absolute; it is limited in time by expiry and in space by some rights of use (those statutory exceptions defined in the Copyright Act). Taken together, rights of control and rights of use form the system of copyright and might foster future creativity.

An impediment to fruitful operation of the system is the misunderstanding that authors lie at the heart of the system. Whereas the system was only designed to bring some stability among feuding 18th century publishers. Nevertheless, for over three centuries, control via copyright expanded in depth and breadth, always through the plea that authors were living in poverty. One may rightly ask: if authors are still in dire straits after 308 years of copyright expansion, is copyright their real problem and can it provide a meaningful solution?

The rhetoric escalates with every revision of the Copyright Act; copyright is deemed essential to the very existence of Canadian culture. But copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and an international publishing conglomerate, and, between writing for an audience and writing for financial gain. Revision of the Act must be carefully handled, with the commercial trade imbalance kept uppermost in mind.

On the following pages are my recommendations for action the Federal Government could undertake, with (and without) change to the Copyright Act. Four themes are addressed:

  • Preserving Canadian content.
  • Deterring copyright abuse.
  • Fostering Canadian creativity, exceptions and other means.
  • The system of copyright, in support of reconciliation.

Meera Nair, Ph.D.
Edmonton, AB


Regulate Everything: The CRTC Goes All-In on Internet Taxation and Regulation

Michael Geist Law RSS Feed - Thu, 2018/05/31 - 14:48

For two decades, a small collection of cultural groups have been pressing the CRTC to regulate and tax the Internet. As far back as 1998, the CRTC conducted hearings on “new media” in which groups argued that the dial-up Internet was little different than conventional broadcasting and should be regulated and taxed as such. The CRTC and successive governments consistently rejected the Internet regulation drumbeat, citing obvious differences with broadcast, competing public policy objectives such as affordable access, and the benefits of competition. That changed today as the CRTC released “Harnessing Change: The Future of Programming Distribution in Canada“, a difficult-to-read digital-only report (as if PDF is not digital) in which the CRTC jumps into the Internet regulation and taxation game with both feet.

The report is the Commission’s response to Canadian Heritage Minister Melanie Joly’s report on Canadian content in a digital world, released less than a year ago which asked for a CRTC review. That report – as well as the Commission’s own Let’s Talk TV report – emphasized the benefits of the Internet and sided primarily with an export-oriented, competition focused strategy in which Canadian content and broadcasters would succeed based on the quality of their programming, not regulatory schemes designed to provide millions of dollars in support.

The CRTC has reversed that approach with a regulation-first strategy that envisions new fees attached to virtually anything related to the Internet: Internet service providers, Internet video services, and Internet audio services (wherever located) to name a few. The CRTC’s report now goes to the government, but this has the feeling of theatre with a review of telecom and broadcast legislation set to get underway with a panel that will undoubtedly include several proponents of an Internet regulation strategy. In fact, one wonders if the CRTC would not have embraced prioritization of Cancon on in the Internet if not for the government’s clear support for net neutrality.

The foundation of the CRTC report is fundamentally flawed in at least four respects. First, Canadian broadcasting regulation is essentially regulation on speech. In a world of scarcity – limited channels or spectrum – that regulation is viewed as necessary to ensure that a scarce resource is well-used. In the Internet world of abundance, the rationale for conventional broadcast regulation withers away as there are few limits to the ability for anyone to use the Internet to express themselves, whether with text, audio or video.

Yet in the CRTC’s worldview, much of this is “broadcasting” that requires regulation. The potential scope of CRTC regulation is dizzying as it states:

if legislative change is to take place, it should clearly and explicitly make any video or audio services offered in Canada and/or drawing revenue from Canadians subject to the legislation and incorporate them into the broadcasting system. This should apply to traditional and new services, whether Canadian or non-Canadian.

Is the CRTC suggesting that all podcasters that draw revenue from Canada are now subject to its regulation?  All news organizations that invariably include audio and video?  Where is the line on CRTC regulation when your scope is the Internet?

Second, there is no Canadian content emergency. Notwithstanding the doomsayers who fear that the emergence of digital services such as Netflix will result in less money for production in Canada, the most recent annual report by the Canadian Media Producers Association on the state of screen-based media production in Canada confirms that financing of Canadian television production continues to hit new heights. Last year, the total value of the sector exceeded $8 billion, over than a billion more than has been recorded over the past decade. In fact, last year everything increased: Canadian television, Canadian feature film, foreign location and service production, and broadcaster in-house production. Canadian television, which some claim is at risk due to services such as Netflix, posted the largest expenditure ever (or least over the past two decades looking back at older annual reports).

In fact, the increase in foreign investment in production in Canada is staggering. When Netflix began investing in original content in 2013, the total foreign investment (including foreign location and service production, Canadian theatrical, and Canadian television) was $2.2 billion. That number has doubled in the last five years, now standing at nearly $4.7 billion. While much of that stems from foreign location and service production that supports thousands of jobs, foreign investment in Canadian television production has also almost doubled in the last five years. The data makes it clear that Netflix isn’t a threat, it’s an opportunity with new money entering the sector.

The CRTC report isn’t based on this reality, however. Instead, it provides a handy interactive slider that shows the reduction in mandated funding for Cancon depending on how much spending drops on cable and satellite services. Its own chart shows how that aspect of funding is a small part of the overall ecosystem, but nevertheless it calls for taxation of the entire ecosystem.

Third, an Internet tax is largely premised on the argument that ISPs and Internet companies owe their revenues to the cultural content accessed by subscribers and they should therefore be required to contribute to the system much like broadcasters and broadcast distributors. In fact, the CRTC says exactly that in the report:

there are numerous services in Canada that connect Canadians to content, whether through the Internet or broadcast networks, such as cable or satellite. Demand for these services is almost wholly driven by demand for audio and video content, yet the Canadian market for this content is only supported by BDUs, television programming and radio services.

The reality, however, is that Internet use is about far more than streaming videos or listening to music. Those are obviously popular activities, but numerous studies (CIRA, Statistics Canada) point to the fact that they are not nearly as popular as communicating through messaging and social networks, electronic commerce, Internet banking, or searching for news, weather, and other information. From the integral role of the Internet in our education system to the reliance on the Internet for health information (and increasingly tele-medicine) to the massive use of the Internet for business-to-business communications, Internet use is about far more than cultural consumption. Yet the CRTC envisions the Internet as little more than cable television and wants to implement a taxation system akin to that used for cable and satellite providers.

Fourth, the CRTC suggests that the new fees will be consumer-cost neutral, with reduced broadcast fees offsetting new Internet access fees. In other words, it believes that the current consumer costs are a benchmark against which future fees can be measures and that consumers don’t get to retain the benefits of lower costs and more choice from the Internet. Rather, the CRTC views this as an opportunity to impose new fees or taxes.

There is little reason to believe that the costs won’t have an impact on Internet and wireless pricing that is already some of the highest in the world. Indeed, there is no way around the fact that an Internet tax would make access less affordable, expanding the digital divide by placing Internet connectivity beyond the financial reach of more low-income Canadians. The tax would be particularly damaging in indigenous communities.

The government itself rejected this proposal just last year on precisely the same affordability grounds:

The Committee’s recommendation to generate revenue by expanding broadcast distribution levies so that they apply to broadband distribution would conflict with the principle of affordable access. The open Internet has been a powerful enabler of innovation, driving economic growth, entrepreneurship, and social change in Canada and around the world. The future prosperity of Canadians depends on access to an open Internet where Canadians have the power to freely innovative, communicate, and access the content of their choice in accordance with Canadian laws. Therefore, the Government does not intend to expand the current levy on broadcast distribution undertakings.

The CRTC believes that there is no difference in taxing the same connection, whether used for cable broadcasts or to access the Internet. However, the two can be very different. Cable contributions can be rationalized because the only thing you can do with cable is watch programming. Not so with the Internet, yet the CRTC wants to impose taxes on both in much the same manner.

The CRTC report seemingly views the Internet as an ATM with the ability to withdraw cash from providers and services to fund Cancon or other social programs. It acts as if a reduction in mandated support from broadcasters is the end of Cancon and as if the Internet is little more than cable television rather than the most important communication system ever created. As the title of the report suggests, its recommendation to the government is that the Internet can be “harnessed” from Gatineau for its own policy purposes. The CRTC wants to convince the public it understands the digital world with its digital-first report, but as Canadians struggle to parse through the myriad of links and an unreadable presentation they find a Commission with its gaze firmly fixed in the rear view mirror.

The post Regulate Everything: The CRTC Goes All-In on Internet Taxation and Regulation appeared first on Michael Geist.

Separating Fact From Fiction: The Reality of Canadian Copyright, Fair Dealing, and Education

Michael Geist Law RSS Feed - Thu, 2018/05/31 - 09:10

This week, I had the honour of speaking at a packed event at the World Intellectual Property Organization titled How WIPO Can Contribute to Achieving the Right to Education. The panel featured speakers from around the world focusing on the copyright-related education issues. My talk, which used emerging data from the copyright review, focused on the reality of Canadian copyright, fair dealing, and education. A recording of my remarks embedded into my slide presentation is posted below in a YouTube video.

The presentation drew on my recent blog series on the issue (1, 2, 3, 4), noting that three things have taken place in Canada since the 2012 copyright reforms and the Supreme Court of Canada’s copyright pentalogy that affirmed the need for a broad and liberal approach to fair dealing.

First, education spending on copyright materials has increased over the past five years, citing evidence from Dalhousie University, Ryerson University, and Statistics Canada.


Dalhousie Library Expenditures, https://www.dal.ca/dept/financial-services/reports/budget-advisory-committee–bac–reports.html

Ryerson Library Acquisitions, https://library.ryerson.ca/info/collections/budget/

Ryerson Library Expenditures, Detailed, https://library.ryerson.ca/info/collections/budget/

Statistics Canada Library Acquisitions, http://www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&SDDS=3121


I also noted that there is far more transparency with respect to copyright spending with open data from CRKN and universities such as the University of Alberta.

CARL CRKN Licensing Costs, https://f7f51e08-941e-11e7-aad1-22000a92523b.e.globus.org/1/published/publication_33/submitted_data/SUMMARY_TABLE_CARL_CRKN_2016-17_LICENSING_COSTS.pdf


Second, Canadian publisher profit margins have increased over the past five years, citing Statistics Canada data on both profit margins and increased revenues for Canadian publishers from the educational market.



Third, I emphasized that licensing remains the foundation of access in Canadian education. While fair dealing is essential, it remains a relatively small part of access strategies, with the vast majority of access coming from licensing and open access. I cited specific data from the University of Guelph, which examined its course e-reserves and found that 54% comes through direct links from licenced materials, 24% open and free Internet content, 6% via transactional licences, and the remaining 16% under fair dealing.



The University of Calgary examined thousands of course materials and found that only 8% relied on fair dealing.



I earlier posted on the University of Ottawa’s investment in e-books, with 1.4 million licensed e-books with a great emphasis on Canadian e-books.



The full presentation can viewed here.

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Who Needs an iPhone Tax: Canadian Music Industry Instead Calls for $40 Million Annual Handout

Michael Geist Law RSS Feed - Wed, 2018/05/30 - 11:22

As the Standing Committee on Industry, Science and Technology continues its copyright review, the Canadian Heritage committee has launched its study on remuneration models for artists and creative industries. Yesterday, Music Canada’s Graham Henderson appeared before the committee to make his case for copyright reform (the organization will presumably make the same case in the coming weeks at the Industry committee). The industry is garnering record-setting Internet revenues, but it reverted to claims of a “value gap” that doesn’t fit within the Canadian legislative experience and demands for a copyright term extension that would cost Canadians millions of dollars and that was rejected by the government in the TPP.

Most notably, after privately lobbying for a new tax on all smartphones and other devices, the group is shifting toward an even bigger cash haul. Rather than apply a tax on all smartphones, the industry is spinning for a tax on everyone by simply calling for an annual $40 million handout:

The private copying levy, originally intended to be technologically neutral, has been limited by various decisions to media that are effectively obsolete.  This important source of earned income for over 100,000 music creators is now in jeopardy unless the regime is updated. Music creators are asking for the creation of an interim four-year fund of $40 million per year. This will ensure that music creators continue to receive fair compensation for private copies made until a more permanent, long-term solution can be enacted.

This represents a brazen request for an annual $40 million handout for no reason other than the industry wants it. Indeed, as the industry predicted, the consumer shift to subscription services such as Spotify means there is a less and less private copying taking place. Music Canada (formerly the Canadian Recording Industry Association) was once the lead proponent of the private copying levy, but it dropped its support on the expansion of the levy to iPods in 2007, fearing it “broadens the scope of the private copying exception to avoid making illegal file sharers liable for infringement.” The industry was similarly reluctant to embrace private copying in 2010.

The demand for an annual $40 million taxpayer handout makes sense from the industry’s perspective when you review how the CPCC, the collective responsible for administering the system, distributes its revenues. First, last year a hefty 28% of its revenues went toward administration, meaning that more than $11 million would go toward administrative costs, not musicians. Second, the CPCC’s distribution framework allocates 18% of the remaining revenues to record companies, not authors, publishers or performers. That means millions to record labels, not musicians. In fact, the percentage allocated to record companies has grown significantly: it was 11.3% in 2000, 15.1% from 2001-2007, and now 18%. One hopes the committee will recognize the annual $40 million handout request – $160 million over four years – has nothing to do with business models or the state of industry, which has been growing dramatically in recent years.

The post Who Needs an iPhone Tax: Canadian Music Industry Instead Calls for $40 Million Annual Handout appeared first on Michael Geist.

A Matter of Trust: What Is Happening at the CRTC?

Michael Geist Law RSS Feed - Mon, 2018/05/28 - 09:10

As the term of former CRTC Chair Jean-Pierre Blais came to an end, I wrote a post arguing that he left behind an enviable record, commenting that “a new commissioner may bring a different perspective, but there is no reversing a more open, accessible CRTC.” Less than a year later, it is becoming increasingly clear that I was wrong. Apparently, reversing an open, more accessible CRTC was entirely possible.

Blais understood at least two things with respect to Canada’s communications laws and the CRTC. The first was that in the digital environment the commission should eschew protectionism in favour of a regulatory approach premised on competition. The second was that the CRTC would never gain the trust of the public unless it was seen to operate in the public interest in a transparent manner that offered everyone an equal opportunity to shape Canadian policy.

New CRTC chair Ian Scott has only been in the position since last September, but it feels as if both principles are under threat. The recent CRTC wireless decision rejected the government’s strong hints for more competition, effectively telling Innovation, Science and Economic Development Minister Navdeep Bains that major reforms were the government’s responsibility. This week the CRTC will release its decision on broadcasting and Canadian programming titled “Harnessing Change: The Future of Programming Distribution in Canada”, which suggests the regulator thinks it can harness the Internet and a global programming market.

Yet it is not differing policies that strike at the core of public trust of the CRTC. It is not the odd – if inappropriate – tweet last week in which the CRTC promoted Bell’s CraveTV service (the tweet was subsequently deleted), the discouraging reluctance of the CRTC to launch an inquiry into questionable telecom sales practices, or the approach to cost awards that seem to place new limitations on support for public interest organizations.

Rather, it is the shift in CRTC approach that has opened the door to a resumption of privileged access lacking in the transparency needed to assure the public that the commission still places Canadians at the centre of their communications system. The most obvious manifestation is the presentation of the FairPlay site blocking proposal to commission staff (aided by a commissioner) months before it was available to the public. The documents obtained by the Forum for Research and Policy in Communications show the country’s largest telecom company enjoys easy access to commissioners, who then promote the company’s agenda internally within the regulator.

Not only was the advance internal promotion of the proposal troubling, but so too was the response from both Bell and the CRTC. Bell tried to wordsmith away its privileged access, saying it had not met with CRTC commissioners. Meanwhile, the CRTC may have violated its own Code of Conduct, which states:

Because of the confidentiality of CRTC decision-making and the importance of not only being, but also being seen, to be fair and impartial at meetings with parties before the CRTC, we may not discuss matters before the Commission. To make it clear to all participants that such matters are not to be discussed, we prepare an agenda for meetings with parties and intervene during the meeting if the conversation appears to be moving to a topic before the Commission. Information from such meetings that may be relevant to any future proceeding must be filed on the record of that proceeding in order to be considered by the Commission. Otherwise, other parties to the proceeding would not be aware of or have the opportunity to comment on the information.

To my knowledge, the information from that meeting was not placed on the public record.

Moreover, the newly established (or revived) open door policy was not limited to FairPlay. According to the lobbyist registry, Bell did not meet with CRTC commissioners and senior executives from January 1, 2016 to August 31, 2017. Since September 1st, Bell has had five registered meetings, easily the most of any company in Canada. A new chair unsurprisingly sparks many “get to know you” meetings (I had one with Scott in the fall), but during that period Bell had as many registered meetings as Telus, Rogers, and Shaw combined.

In fact, since July 1, 2017, the organization with second most meetings is the National Football League, which has been active together with Bell on the issue of simultaneous substitution of the Super Bowl. On August 1, 2017, Bell asked the CRTC to reconsider its earlier decision and rescind the order removing simsub from the broadcast. While Bell is the applicant in that case, it is inextricably linked to the NFL, which owns the global rights to the broadcast and has much at stake over the outcome of the decision. But after Bell filed the reconsideration request, it granted the NFL two meetings, with Scott in December 2017 and with Scott Hutton, the CRTC’s Executive Director, Broadcasting in January 2018. It is not clear how the CRTC justifies meetings with the NFL while the matter of the Super Bowl broadcast is before the commission.

Meetings between the regulator and stakeholders outside of the formal hearing process are seemingly an inevitability. Yet the regulator must ensure both equal access and full transparency of access. In fact, the Federal Court of Appeal emphasized the importance of transparency when it upheld the simsub decision, stating “as long as the CRTC’s decision demonstrates ‘justification, transparency and intelligibility within the decision making process’ and ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’, the Court will treat it with deference.”

It is not enough to simply rely on the public to file access to information requests or for companies to register their meetings on the lobbyist registry. Consistent with its code of conduct, all information from those meetings should be filed on the public record. Moreover, the commission should proactively disclose the agenda and non-confidential documents of commissioner meetings as well as registrable meetings with senior commission executives. The foundation of public support for the CRTC is grounded in trust. In light of recent events and records, that trust is in danger of being frittered away as stakeholders fear a return of privileged access for industry that leaves the public interest stranded far from the centre of the Canadian communications system.

The post A Matter of Trust: What Is Happening at the CRTC? appeared first on Michael Geist.

Canadian Copyright, Fair Dealing and Education, Part Four: Fixing Fair Dealing for the Digital Age

Michael Geist Law RSS Feed - Fri, 2018/05/25 - 10:03

My series on Canadian copyright, fair dealing, and education has explored spending and revenue data at universities and publishers, explained the diminishing value of the Access Copyright licence, and conducted a detailed analysis of site licensing on Canadian campuses which demonstrates the foundation for accessing works are the site licences that offer greater flexibility and value than the Access Copyright licence. The series has also shown how some of the publishers who have been most critical of fair dealing are also the ones that have benefited the most from licensing their e-books to educational institutions.

As the Standing Committee on Industry, Science and Technology considers recommendations on fair dealing, the record is clear: Access Copyright distributions have declined, but the collective is hardly the only game in town. With increased copyright spending, new sources of revenue for publishers and authors, and greater flexibility for education, proposals to limit fair dealing for education are unnecessary and would be harmful to students and teachers. What the review has illustrated is that the problem lies not with fair dealing for education, but rather with the challenges of fully adapting fair dealing and educational access to the digital world. Those challenges point to four main areas for reform or policy initiatives.

First, there is a need to fix fair dealing by ensuring that it is not hamstrung in the digital environment. The Canadian test for fairness is consistent with those found in other countries, but there are barriers that exist for fair dealing in the digital world that are not found in the analog one. The most obvious example are Canada’s digital lock rules, which exceed the requirements at international law in the WIPO Internet treaties. As many warned five years ago, Canada has created a system that allows for unnecessarily restrictive limits on digital fair dealing. There is a need to fix this problem by establishing an exception within the anti-circumvention rules to allow for circumvention for any lawful purpose.

Moreover, the fair dealing purposes should be expanded, ideally by adopting a “such as” approach to its list of enumerated purposes that would ensure the law remains relevant in the face of new innovation. Alternatively, given Canada’s prioritization of artificial intelligence, there is a need for a fair dealing exception for text and data mining similar to that found in many other countries.

There is also a need to ensure that contracts cannot be used to override fair dealing rights. This is particularly important given the millions of dollars being spent by Canadians for site licensing with giant foreign multinational publishers. Those negotiations are difficult and a robust fair dealing provision not easily sidelined by contract would help Canadian educational institutions negotiate a fair deal with global giants.

Second, there is a need for greater transparency within the copyright system. MPs have regularly asked for data from stakeholders on all sides that is typically not available. Educational institutions have begun to implement open data initiatives – the University of Alberta is an excellent example – so that everyone can see precisely how much is being spent on subscriptions and copyrights. The copyright collectives and publishers are far less transparent, with limited information on distributions from collectives and publishers loath to disclose alternate copyright royalties from site licensing. Mandating greater transparency would improve policy making and ensure that both creators and users have better insights into where the money is going.

Third, the government should increase its emphasis on open access and open educational resources.  In the case of open access, the public has already paid for the creation of research at least once (sometimes twice) and should not pay a third time. Ensuring open access for research publications reduces costs, gives taxpayers a better return on their investment, and clearly addresses any concerns about copyright payments for use. Open educational resources, which has been embraced by provincial governments, offers greater flexibility for education and an alternate model for payments for creators. Rather than relying on royalties based on the number of books or licenses sold, funded OERs fully compensate creators at the time of creation. The Ontario and B.C. investments in OERs should be adopted federally and in other provinces, consistent with recommendations from the Finance committee last year.

Fourth, the government should ensure that current programs that support publishers and authors function equally well in the digital environment, which correspondents note, would be consistent with the updating of the public lending right to e-books that recently occurred. The Canada Council conducted a study on the issue in 2011. The government should also consider programs to support digitization of books so that publishers can offer digital versions of their full backlists. The data indicates that educational institutions subscribe to the majority of books offered in electronic form by Canadian publishers. The government could support expanding the availability of e-books and should consider linking current publishing assistance to the inclusion of an e-book option.

The post Canadian Copyright, Fair Dealing and Education, Part Four: Fixing Fair Dealing for the Digital Age appeared first on Michael Geist.

Canadian Copyright, Fair Dealing and Education, Part Three: Exploring the Impact of Site Licensing at Canadian Universities

Michael Geist Law RSS Feed - Thu, 2018/05/24 - 09:10

My series on Canadian copyright, fair dealing, and education has thus far explored spending and revenue data at universities and publishers as well as explained why the Access Copyright licence is diminishing in value. This post provides original data on the impact of site licensing at universities across Canada. It is these licences, together with open access and freely available online materials, that have largely replaced the Access Copyright licence, with fair dealing playing a secondary role. Site licensing now comprises the lion share of acquisition budgets at Canadian libraries, who have widely adopted digital-first policies. The specific terms of the licences vary, but most grant rights for use in course management systems or e-reserves, which effectively replaces photocopies with paid digital access. Moreover, many licences are purchased in perpetuity, meaning that the rights to the works have been fully compensated for an unlimited period. The vast majority of these licenses have been purchased since 2012, yet another confirmation that fair dealing has not resulted in less spending on copyright works.

Unlike Access Copyright, which provides minimal detail beyond aggregate numbers on distributions, some universities have provided full open data sets on budgets, acquisitions, and line-by-line costs of subscriptions. For example, recent data released by the Canadian Research Knowledge Network provided details on the subscription expenditures at 28 member libraries from the Canadian Association of Research Libraries. The spending on journals and e-books, even with the benefit of consortium-based negotiations, is enormous. The summary table for 2016-17 licensing costs shows expenditures from those 28 university library alone exceeding $80 million for the year for access to journals, some e-books and other databases.


CARL CRKN Licensing Costs, https://f7f51e08-941e-11e7-aad1-22000a92523b.e.globus.org/1/published/publication_33/submitted_data/SUMMARY_TABLE_CARL_CRKN_2016-17_LICENSING_COSTS.pdf


Other open data sources provide further insights into spending and the breadth of alternative licensing for materials. For example, the University of Alberta’s open data project provides remarkable detail on all subscriptions and purchases by the university library. The data sets show year-by-year, work-by-work pricing, demonstrating that even a single university can spend hundreds of thousands of dollars annually to acquire access to works, many in perpetuity (thanks to University of Alberta’s Trish Chatterley for the assistance).

Those acquisitions extend far beyond journals. For example, last year the university purchased perpetual access to NewspaperARCHIVE Academic Library Edition Canada as part of a $381,617.03 purchase with Proquest that included access a range of materials such as the Washington Post and Los Angeles Times. The Canadian newspaper archive provides perpetual access to over one hundred Canadian newspaper datasets. I am advised that the licence permits copying reasonable portions for educational or research purposes, printing or inter-library loans of materials, and links to articles within electronic reserves or course management systems. The perpetual access includes access to newspapers such as the Winnipeg Free Press, Lethbridge Herald, and Medicine Hat News.

The inclusion of the Winnipeg Free Press is worth highlighting since its publisher, Bob Cox, has been outspoken on the need for copyright reform, yet neglects to mention that he has sold perpetual access to 141 years of the paper’s archives. In other words, licence holders such as the University of Alberta have fully compensated the Winnipeg Free Press for the potential copying of thousands of articles without implicating Access Copyright or fair dealing.

The investment in e-books is the most important trend as it represents a critical alternative to the Access Copyright licence. The committee has already heard from libraries confirming that they have shifted to digital-first purchasing policies, where the digital version of a work is preferred given the greater flexibility the licences typically offer for access and teaching. While some have claimed that the site licensing is largely limited to journals, the reality is that the e-books is a rapidly growing part of university purchasing. At the University of Ottawa, there are now nearly 1.4 million e-books under licence. The University of Alberta dataset shows massive investments in e-books from publishers around the world. For example, last year, it spent over $500,000 for the Springer e-book archive, which provides perpetual access to 110,000 books with the ability to use full chapters for course materials.

With regard to the Canadian component of e-book licensing, the data discussed below suggests that the expenditures and range of Canadian materials is significant (beyond newspapers and Canadian journals). For example, one of the largest Canadian e-book databases comes from the Canadian Electronic Library with a database known as DesLibris. It features thousands of Canadian e-books from Canadian publishers. Last year, the University of Alberta alone spent $24,000 on a licence to access to the database. Assuming that most other universities have done the same, the revenue for a single Canadian e-book database may approach a million dollars annually.

While it is challenging to identify precisely what is covered under the licence at each institution, the University of Ottawa also has a licence to the database. Working with University of Ottawa student Tamara Mascisch-Cohen, we tried to identify the scope of the university’s e-book licences for Canadian publishers within DesLibris (which is just one of several Canadian e-book databases licensed at the university). The University of Ottawa is particularly interesting in this regard since it licences both English and French books from dozens of Canadian publishers (thanks to librarians Tony Horava and Sarah Hill for the assistance).

We looked specifically for four metrics by publisher: number of licensed e-books, number of licensed e-books published since 1997, total number of e-books available, and total number of e-books published since 1997 available. The metrics were designed to provide a sense of licensed e-books from a single database along with a better understanding of how many e-books fell within the last 20 years (Access Copyright says books older than 20 years are rarely copied and are ineligible for its Payback system) and whether the university was purchasing access to the majority of e-books available for subscription. Data on the top 60 Canadian presses is posted below:

University of Ottawa DesLibris data

The data shows a huge investment in Canadian e-books with universities licensing access to thousands of them across dozens of Canadian publishers. In fact, the University of Ottawa approach suggests that universities will typically licence the majority of e-books that are made available by Canadian publishers. In other words, the only thing stopping more e-book licensing are publishers who fail to include them within their databases. Further, there are a sizable number of e-books that are licensed that were published before 1997. These e-books are typically not copied (according to data from Access Copyright) and would not return royalties from the Payback system for the authors or publishers, meaning that site licensing is a crucial way to obtain an ongoing economic return from these older titles.

Moreover, this is only one database. The University of Ottawa library advises that it has purchased perpetual access to more than 15,000 books from Canadian publishers. There are thousands of books from the largest publishers such as University of Toronto Press, McGill-Queen’s University Press, and UBC Press, but dozens of smaller presses have also sold perpetual access.

Interestingly, some of the publishers who have been most critical of fair dealing are also the ones that have benefited the most from licensing their e-books to educational institutions. For example, last December, Dundurn Press tweeted:

Dundurn Press tweet, December 1, 2017, https://twitter.com/dundurnpress/status/936626376651755521

What Dundurn Press doesn’t say is that it is compensated for educational use of many of its books.  The University of Ottawa has licensed access to over 98% of the Dundurn Press e-books that are available through DesLibris: 1,933 Dundurn Press e-books of a total of 1,965 available e-books through the database. Dundurn has also sold 459 e-books under perpetual licences to the university.

There is similar data for other Canadian publishers. ECW Press, whose site says it has published “close to 1,000 books”, told the industry committee last week that it has lost significant educational adoption revenues. The University of Ottawa has licensed over 99% of the available ECW e-books from DesLibris: 685 out of a total 690. ECW has also sold 339 e-books – about a third of its entire catalogue – under perpetual licences to the university.

Fernwood Publishing, a Canadian publisher that started in Halifax and expanded to Winnipeg, was also discussed during last week’s hearing. It says it has published over 450 titles over the past 20 years. Last week, the committee heard that the educational component of its publishing program has decreased from 70% of sales to about half. The University of Ottawa has licensed 86% of the available Fernwood e-book on DesLibris: 254 out of a total of 295. Fernwood has also sold 186 e-books under perpetual licences to the university. The data is replicated at many Canadian publishers, who criticize fair dealing yet remain silent on the new revenues from site licensing their e-books and on the fact that those licences typically mean that potential copying of their works is paid copying, not copying based on fair dealing.

The story is similar for many Canadian authors, who have had their works licensed under these site licenses. For example, Heather Menzies is an exceptionally accomplished Canadian author who received the Order of Canada in 2013. She is the author of ten books, the former chair of the Writers Union of Canada, and has written publicly about the state of Canadian copyright. Six of her books were published before 1997 and are therefore ineligible for Access Copyright’s Payback system since its data shows titles older than 20 years are unlikely to be copied. Of the remaining four titles, at the University of Ottawa electronic versions of Canada in the Global Village have been licensed through three different databases, No Time is licensed as an e-book, and Reclaiming the Commons has been licensed as an e-book. The library does not have a copy, either paper or electronic, of Enter Mourning.

Ms. Menzies is just one author, but the shift to e-licensing of her works is typically of the trend at universities across the country.  Fair dealing is an essential component of copyright law, but it is not the foundation for accessing works in Canadian educational institutions. More relevant is the hundreds of millions of dollars spent on licences that offer greater flexibility and value than the Access Copyright licence. As MPs search for answers, the data makes it clear that fair dealing for education is not problem in need of solving. If anything, there is a need to address ongoing restrictions and barriers in the digital world, a topic that will form the basis for tomorrow’s final post in this series.

The post Canadian Copyright, Fair Dealing and Education, Part Three: Exploring the Impact of Site Licensing at Canadian Universities appeared first on Michael Geist.

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