I want to start by thanking the committee for inviting me as a witness on such an important issue in the history of Canadian copyright, which I care deeply about.
I offer my comments as a law professor at Osgoode Hall Law School and as founder and director of IP Osgoode, Osgoode Hall Law School's IP and technology program. I offer my comments without an agenda or interest in supporting any one stakeholder group. I aspire towards a balanced approach that weighs all the challenges the government faces and the various stakeholders' interests.
The bill is ambitious in its attempt to achieve this balance, as there are numerous provisions put forward that try to address the varying interests and challenges. Despite this valiant attempt, the bill does need fine tuning, since some issues are still left unaddressed and others are ambiguously addressed.
If we start with the policy that we want to have end-users--the public--enjoy works, that we want to ensure that authors have the ability to create and to continue creating, that we want to have creativity and innovation flourish, and that we want to have the greatest possible dissemination of works while ensuring at the same time that there's some viable means of compensation for the use of others' works, then this bill still needs some work. If we want legislation that is clear and understandable to Canadians, then we need to do better.
In the time I have I will focus on just a few points that can be rehabilitated in this committee.
My first point deals with the amendments proposed for section 29 on fair dealing. While it is salutary to have added “parody or satire” as a new purpose, I am still unclear as to why “education” was added as a new purpose under this provision. This new purpose is too broad and invites years of litigation to clarify it, which will lead to access-to-justice issues and will force the courts to resolve matters that are for the government to legislate with confidence in so doing.
What is the policy behind this provision? What problem is there with respect to education that is not currently addressed in the other sections of the act? If the government has something in mind, it should simply say so expressly and not purport to do so ambiguously through a catch-all term, hoping that whatever it is that is meant or might be meant is addressed. Significantly, there is no precedent case law for this purpose, and so the courts will be left to do the job of government. I should note that there is now ample case law on the other purposes.
How do we fix it?
Legislating the Supreme Court of Canada's CCH factors is not an answer. It does nothing to clarify what we mean by education. The government should pronounce itself on court decisions when it wishes to overrule them, not when it agrees with them, and certainly not when it has before it a unanimous Supreme Court of Canada decision, as indicated with CCH. It might, for instance, intervene to legislate a lower court decision it agrees with if it thought higher courts might overrule it, but it makes little sense to intervene and restate what the Supreme Court of Canada has already said.
So the question remains: how do we fix it? Do we legislate the Berne or TRIPS three-step test that restricts permissible exceptions in national legislation to certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author? I don't think this, by itself, is the full answer either. This would be inviting more ambiguity into an already ambiguous framework in defining for Canada what is meant by “normal exploitation”, what is meant by “unreasonably prejudice”, what the “legitimate interests of the author” are, and so on. It would run the danger that Canada's law would be determined in Geneva by WTO panels making decisions on the TRIPS provisions.
What we need to do to fix fair dealing with respect to education as a purpose is to isolate, at a very basic level, the problem we are trying to solve through legislation, and then express that problem.
If we know what it is, then we should say so. If we don't know what it is but have a sense that we need to do something, then I would suggest the use of a more flexible framework. For example, you could include a provision at the end of section 29 stating something like, “it is not an infringement of copyright to deal with such educational purposes in such manner as the Governor in Council may prescribe by regulation”.
This would allow for a more evidence-based approach and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and to be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time.
My second and concluding point is that given the policy question of balance, the issue of tackling matters for creators head-on in a way that would ensure that they are compensated for the uses of their works is not addressed. I would be happy to address this matter more fully if given the time in discussion.
Creators, in some ways, are caught between owners on the one hand and users on the other. An area I've done a lot of work on is the copyright relationship between owners and creators. In terms of this bill, creators seem to be potentially undermined either by the revised fair dealing clause or by another provision, section 29.21, on non-commercial user-generated content, which in its current form also remains vague and may have unintended consequences.
Those are my introductory comments. I look forward to your questions.