The federal government needs to stop dragging its feet and take some concrete steps toward revamping Canada’s antiquated copyright laws, say intellectual property lawyers.
The political hot potato of copyright reform is again on the agenda after the government’s recent launch of a broad consultation process with an eye to introducing new legislation this fall.
Industry Minister Tony Clement and Canadian Heritage Minister James Moore recently announced the process would wrap up by Sept. 13.
The government will seek input from Canadians through an online discussion forum, a centre for posting detailed submissions, roundtables for experts and organizations to weigh in, and town hall meetings hosted by the ministers.
The government last year introduced bill C-61 in hopes of pushing through the first major overhaul of the Copyright Act in over a decade. That attempt died when the October election was called. A previous effort also went by the wayside in 2005.
Clement has said the consultations give Canadians “a chance to express their views on how the government should approach the modernization of copyright laws.”
But Glen Bloom, a partner with Osler Hoskin & Harcourt LLP’s Ottawa office, says the consultation process is unnecessary.
“The government has had years of input,” he says. “I think it’s a political decision. The bill will be controversial regardless of what’s in it.
“The government has got to come out and state, ‘This is our policy; this is why we’re doing it,’ and proceed. Endless consultation is useless,” he says.
Canada is trailing its trading partners in putting together legislation to enact the 1996 World Intellectual Property Organization copyright treaty, he says.
“It’s something we have to do, and we have to do sooner rather than later,” says Bloom. “It’s an embarrassment, frankly, internationally for Canada to be in the position it is.”
He also notes that earlier this year Canada was placed on the United States Trade Representative’s “priority watch list” in its annual “Special 301 Report,” which rates the protection and enforcement of IP rights across the globe.
The government must adopt the copyright reforms currently on the table in order to move on to “some pretty fundamental reforms,” says Bloom.
A general review of the current copyright legislation, with the intention of harmonizing and simplifying it, was first discussed in the late 1990s, he notes.
“That’s really what needs to be done, and that’s all being delayed because of the inaction on issues that have been addressed by our trading partners worldwide,” he says.
McCarthy Tétrault LLP partner Barry Sookman agrees that the government needs to get moving on copyright reform.
“There’s been, already, very significant study on certain copyright issues, and the consultation process shouldn’t be any reason to slow down moving ahead on certain areas that have been well consulted on and well studied,” he says.
The consultation process could come in handy in future phases of copyright reform, says Sookman, but for now, the government should introduce legislation to ratify the WIPO treaty and clarify the role of internet service providers in discouraging copyright infringement.
He also says the Copyright Act is in desperate need of modernization, as it was enacted well before the Internet or digitization.
“There is a significant amount of unauthorized file sharing, and we need to modernize our laws to help re-calibrate the balance of copyright, so that rights holders can develop economic models that create businesses out of cultural products,” he says.
In Sookman’s view, copyright reform “is not a zero-sum game.” While it’s often said that stronger protection for creators is bad for consumers, he disagrees.
“Without copyright protection in a digital environment there wouldn’t actually be an appropriate amount of investment made into the production of cultural products,” says Sookman.
“Copyright is what enables works to be made available for users to use in the first place. So actually reform can be a win-win.”
Colleen Spring Zimmerman, a partner with Borden Ladner Gervais LLP and manager of the firm’s IP practice group, applauds the government’s consultation process. She notes the government was criticized from some corners for its heavy-handed approach to rolling out bill C-61.
Zimmerman is also glad to see Clement attending town hall meetings in Toronto and Montreal. But she suggests he will have trouble creating consensus afterward.
“Everyone in the room comes from very different points of view,” she says. “It is important for him to hear from all of these various stakeholders, but I think it may be a little difficult in the end for him to give enough feedback for those competing voices.”
Zimmerman suggests the government’s top priorities should including tinkering with the Copyright Board of Canada, which plays a key role in setting tariffs, for example. She says the jurisdiction of the board should be reconsidered, while a broader “revamping” should also be investigated.
The government has set up a web site,
www.copyrightconsultation.ca, as a hub for the consultations.
