Comments on Liberals' propose amendments to copyright bill C-32

The Liberal party has sent out a release where they propose amendments to copyright bill C-32. Overall I think it is a positive direction they are taking, but the devil may be in the details. I know I don't understand in detail what they are proposing.

Private copying

They are proposing a Private Copying Compensation Payment to be written into law within the Copyright Act. I have to admit that I don't understand what this means. Is it a compulsory licensing regime, translating an activity that previously required permission into something that only requires payment? If not, then what specific modification to the Copyright Act is being proposed?

Michael Geist suggests in his summary that this is money that comes out of general revenue. If so, then this is closer to the Public Lending Right (PLR) regime than a compulsory license.

In the case of the PLR this is an activity that is not covered by copyright (public lending of books by libraries), but where the government felt it appropriate to compensate authors (note: not copyright holders, but Canadian authors!) whose works are widely publicly shared in this perfectly legal away.

If the Liberals are proposing carving truly private activities out of the copyright act, and creating long-term stable funding for a PLR-like program applicable to all Canadian creators (Note: not largely copyright holders, but Canadian creators), then I would be 110% behind them on this. I can not tell from the release if this is what they are proposing.

I believe if Canadians were actually asked using language they understood, they would confirm that they already believe that private activities are not regulated by Copyright. Most Canadians would likely agree with the statement that "Copyright has no business in the bedrooms of the nation". The less that the Copyright Act reflects what Canadians believe to be reasonable, the less respect Copyright will receive.

On the other hand, a majority of Canadians believe that artists should receive fair contributions to their contributions to Canadian society. While some of that will come from the marketplace, most recognise the critical need for additional public recognition/support through government funding programs at all levels of government.

We need to remember that the PLR program is not part of the Copyright act, and the compensation is for activities not regulated by copyright. If the new Liberal program is confused as covering activities that are covered in the copyright act, it will be seen as "paying for" these activities. This will will have the unintended consequence of encouraging infringing activities. This is one of the many failings of the current Private Copying regime which I have often observed inducing infringement.

The Liberal party needs to ensure this is not ever thought of as compensation for unauthorized filesharing of content. We already know how confusion about the existing Private Copying Regime, often from government officials including past Liberal Heritage ministers, has induced Canadians into believing that unauthorized P2P filesharing of music is perfectly legal in Canada.

Extension of existing private copying regime for recorded music to devices

“The Liberal Party does not support the iPod levy.  It is not sustainable in a world of changing technology, and is unpopular with consumers,” said Marc Garneau, Liberal Industry, Science and Technology Critic.

This simple extension is in Charlie Angus' private members bill C-499, and until I read this release I thought it was supported by all 3 opposition parties. It will be interesting to see if there is any policy statements from the Bloc on this issue.

It seems the Liberal party recognised the politics of this regime, and that the vast majority of Canadians are aggressively opposing it. No matter whether politicians privately supported the regime or not, it is clear that it is a vote loser for parties that support it and a vote winner for those opposing it. This issue, more than anything that is actually in Bill C-32, has recently received considerable public outcry.

Restrict the education exemption by clearly defining “education” and inserting a clear and strict test for “fair” use for education purposes;

This is another public relations issue. The USA uses a much simpler flexible Fair Use regime which has a clear set of criteria to use in their one-step fairness test, and then a set of illustrations that include "teaching (including multiple copies for classroom use)".

Canada on the other hand has a two-step test where something must first qualify under a limited set of categories, and then does not document the criteria for the fairness test within our Copyright Act at all.

While I support the addition of "a clear and strict test for fair use", I believe we should take the US lead and have this replace the limited set of criteria. The educational publishers behind the opposition to the educational exemption are not greatly harmed by US law, and it is silly to suggest they would be harmed by Canadian law.

This is a political issue and not an issue of good policy. To move forward and to reduce the number of Access Copyright supporters trying to derail and/or delay copyright reform, something excessively complex that will lead to more litigation may be required.

Re-insert the right of ephemeral recordings;

I disagree with this. Arbitrarily making it more expensive to do things depending on the technology used doesn't make sense. This isn't a sector that touches me directly, so I'll let these folks upset their customer base and decrease their own revenues.

See CAB press release

Restrict and tighten the language for “mash-ups”;

Adopting a flexible fair use regime would be far more efficient, and would reduce the inevitable inducement to infringe that will result from having this complexity added to the Copyright Act. The criteria discussed in committee were essentially the Supreme Court criteria for fairness. Having mash-ups mentioned in an illustrative list under a flexible fair use regime would be sufficient for the goals the Conservatives seemed to have.

Unfortunately the politics are such that collective societies and their allies prefer the fact that Canadian law is more tilted in their favour than US law, and are going to oppose any move to offer similar flexibility and balance. While I believe the interests of collectives are very different than (and sometimes opposed to) the interests of Canadian creators, this is not how MPs see this issue.

Remove the arbitrary 1988 statute on public expositions;

I believe this relates to the transitional language added as part of the 1988 copyright bill which included in section 3 the following language:

"(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,"

I understand the purpose of the existing language, and also why artists would want the "created after 1988" removed.

Introduce a new resale right on art, similar to European laws;

This is quite vague, and the devil will be in the details.

It will need some sort of transitional regime, as it is unfair for the resale value of visual art to be reduced for visual art already sold. That will seem like expropriation of value without compensation. It will need to apply to sales made directly by artist or the the "next" resale of art after it is sold by current owner. I worry that such a transitional regime would not be used, given the transitional regime applicable to public exhibitions are being proposed to be removed.

The most important detail will be whether this is done as a traditional form of copyright (permission needed by copyright holder), or as a compulsory regime imposing a mandatory collective society onto all visual artists. As an addition to traditional copyright I am supportive, but as an imposition of a collective society I am strongly opposed. It should be the artist, not a third party like a collective society or government, that should be choosing what is in their own best interests. I have heard many times from visual artists in other countries where they consider mandatory collective societies to be as offensive to them as outright infringement is to creators in general.

Ensure the rights of Canadian photographers are comparable to those shared by photographers around the world;

This is also vague. It is obvious to me that we don't all operate on the same set of "facts" about what is true in other countries.

I believe the question of first holder of copyright for a borrowed camera is one where most countries hold that the owner of the equipment is the copyright holder. I believe that this should be clarified and retained in Canadian copyright law.

I am not overly concerned about the commissioned photography situation from a copyright perspective, which I consider to be a contractual and privacy issue. A photographer should not be able to communicate or display images taken in a private setting without their express informed consent of the subject. Far too many issues which shouldn't be considered the subject matter of copyright end up embedded within the Copyright Act.

Address the overly-restrictive digital lock provisions for personal uses.

This is the quiet opening of a door, but I don't think the Liberals really walked through it. I have seen no sign that we are talking about real-world examples of real-world technology. I don't think they have understood that in most digital content scenarios there are four owners, not one, and that there are two locks, not one. They have not yet asked any of the relevant questions about who owns the things that are locked, and who manages the keys to those locks.

I think that until they move from the science fiction world of believing that the marketing term "copy control" references real technology, whatever policy is proposed will have considerable unintended consequences.

Politically the best that we might hope for is that the Liberals propose Bill C-60 style language. I worry that what is being proposed here will be far closer to what the Conservatives proposed, but with the addition of more excessively complex and unworkable exceptions. These exceptions will never make sense, and never accomplish what the Liberals are intending, until we transition from science fiction to real-world understandings of the technology involved.