Theme emerging at the C-11 legislative committee

I have noticed a theme emerging at the C-11 committee.  Copyright law impacts other areas of policy, including cultural policy and with the type of Paracopyright policy in C-11 we see impacts on property, contract, eComerce and other areas of (primarily provincial) law.

While the governing Conservatives have the copyright policy right, they have the non-copyright policy wrong.  The official opposition NDP have the non-copyright policy right, but have the copyright policy wrong.   The lonely Liberal is just doing what he can to get a question or comment in from time to time.

It is obvious I believe the Paracopyright aspects of this bill override any of the good that could come from the copyright aspects of the bill. I believe this to be true whether we are talking from the perspective of creators, audiences, software authors or technology owners.  The Conservatives got this non-copyright part of the bill so wrong that this bill shouldn't be passed unless amended to fix these provisions to minimize rather than maximize infringements of IT property rights.  These infringements enabled and induced by the current policy in C-11 harm nearly every Canadian, and only help those promoting illegitimate business models built on infringing other people's rights.

The Conservatives got the policy right on whether copyright should regulate the private activities of citizens, or the internal processes of businesses.  While they inappropriately protected the existing Private Copying regime (what they have called a blank media "tax") in C-11, they strongly reject proposals to expand the regime to devices or beyond recorded music. They included an exception for reproductions for private purposes (29.22), as well as exceptions relating to temporary reproductions for technological purposes and ephemeral recordings exception (Modifications to sections 30.71-30.9).  This is the correct copyright policy direction.

The NDP are correct to point out that these are lost revenue streams for artists.  The right thing to do as the Conservatives fix these copyright policy flaws is to create new (or enhance existing) arts funding programs to replace these revenue streams.   I am a strong supporter of a regime based on the existing Public Lending Right as a replacement of the existing private copying regime, and its expansion to include creativity beyond recorded music.  Truly private copying should not be regulated or compensated in copyright law at all, whether music or any other type of work, but like the public lending right there should be appropriately transparent and accountable arts funding associated with these non-copyright related activities.

Radio, television and other broadcasters already pay into or receive money from various funds such as the Canadian Media Fund, Canadian Television Fund, Local Program Improvement Fund, and others. As the temporary revenue stream from the ephemeral copies is removed, it is quite appropriate to ensure that a properly transparent and accountable fund is set up to replace or possibly enhance the funding that the ephemeral copies offered. In that conversation all the data from the NDP on the relative revenue of broadcasters compared to artists is on-topic and appropriate, and I would be fully behind these policies. I consider it off-topic and inappropriate for a conversation about copyright policy.

It is important to remember that copyright is not a substitute for strong and stable arts funding, and each political party is incorrectly trying to make that substitution. When the wrong policy is used (copyright vs non-copyright), the resulting government policy will be ineffective at best, and will often be counter-productive. Allowing copyright to substitute for arts funding (among other problems) allows non-transparent and unaccountable collective societies to create programs such as we see with the Access Copyright Foundation, policy which must be accomplished through transparent and accountable government arts funding programs. Allowing arts funding to substitute for copyright disallows the market to reward the best creativity, and disables the best that Canada has to offer from receiving appropriate incentives for better creativity.

While each witness may bring up different aspects of the bill, or other policies not in the bill, the overall theme has been fairly constant. If the policy can truly be said to be copyright related the Conservatives seem to have the right balance in the policy, but when it is non-copyright related it is the official opposition NDP that have the right policy.

Each party uses inappropriate rhetoric to try to justify the incorrect policies. The Conservatives abuse the "theft is theft" nonsense about copyright infringement to justify their Paracopyright provisions infringing IT property rights (and through that other rights of technology owners). The NDP speak about the rich (broadcasters, telecommunications companies, technology manufacturers, etc) somehow owing something to the poor (creators, non-creator copyright holders, collective societies, etc).

In an ideal world these non-copyright related policies would be removed from or otherwise remain outside any copyright bill. These non-copyright related policies would be discussed in the right committee (Heritage for much of what the NDP are discussing) or the right level of government (provincial governments for the Paracopyright policy). Unfortunately we don't live in an ideal world, and I fully expect to see this theme continuing through March: through the remaining witnesses and the clause-by-clause study of the bill.