Thank you very much.
On behalf of the Consumer Technology Association, I am pleased to participate in the committee's review of Canada's Copyright Act. I am also honoured to appear before you because as a child I lived in Oakville, Ontario, and I have many happy memories of growing up in your wonderful country.
CTA represents 321 billion Canadian and U.S. consumer technology industries, comprising more than 2,200 Canadian and U.S. companies, of which 80% are small businesses and start-ups. CTA also owns and produces CES, the international trade show for consumer technology.
In our written brief, CTA urged that this review's outcome should be one that makes Canadian and international works, services and technologies more accessible in Canada and abroad. We expressed concern over proposals to move in the opposite direction by imposing new constraints on technologies, devices and local and international service providers. These innovations have helped Canadians to lead the world economy. This review should enhance rather than limit Canada's contribution. Therefore, we have made the following recommendations:
One, maintain and enhance limitations on exceptions such as the doctrines of fair dealing and fair use. Two, avoid unique impositions on online service providers, or OSPs, that would hobble Canada's contribution to international discourse and result in a loss of service in Canada. Three, reject attempts to oversee the design of technology and devices or define classes of technology or devices to be subjected to some sort of levy.
Finally, with respect to copyright terms, we have argued against the extension of copyright terms, believing the focus should be on creating new works and directions. We see the USMCA's contrary results as unfortunate and hope the effect can be mitigated in your law through exceptions, limitations and more discretion with respect to fair dealing.
In terms of fair use, having accepted the U.S. provisions on copyright term and the U.S. policy on circumvention of technical measures, Canada should also balance these with appropriate limitations and exceptions of the sort that mitigate their impact on U.S. law. Canada took constructive steps in 2012 to recognize best practices and fair dealing. These practices promote research, study and criticism, and they recognize the value of satire, parody and user-generated content. While a full fair use regime would perhaps better serve the present dynamic environment, perhaps Canada's fair dealing regime could be made more flexible and more adaptable.
The strict application of a code-based regime such as fair dealing cannot account for new technologies and new uses. One step harmonious with U.S. law would be to add the words "such as", which appear in the U.S. code, section 107. This would allow Canada's courts to keep up with the reasonable and customary practices of businesses and users.
The fair use doctrine, developed by courts as an iteration of the U.S. First Amendment principles, has continued to adapt even after being codified. Its application by the Supreme Court in the 1984 Sony Betamax case opened the door to personal communications, commerce and the Internet. In our industry, we refer to this as the Magna Carta of the consumer technology industry. Fair use has also been the basis of informal codes and best practices, which I know exist in Canada as well in many areas.
Internationally, the ability to quote and criticize has been important for democracy and innovation. CTA believes the U.S., Canada and Europe should encourage these values both at home and abroad.
In terms of technical measures, Canada did follow the U.S. lead in making circumvention of technical measures illegal, but in this area as well has not provided corresponding limitations and exceptions. As the U.S. Register of Copyrights ruled last week in its DMCA section 1201 recommendations, lawful user exceptions are particularly necessary in the diagnosis, maintenance and repair of modern cars, farm equipment and other devices, because embedded software has replaced analog circuitry in mechanical parts. Under the new regulations, U.S. farmers will no longer have to worry about the legality of getting expert assistance to repair a tractor or harvester during a short northern growing season.
After exhaustive study and commentary from CTA and others, the registers found such exceptions can and should be implemented without putting creative expression at risk. This is a step forward that Canada should also consider. Even though fair use is not seen by U.S. courts as a defence to DMCA 1201, it is the metric used by the Register of Copyrights in evaluating exception petitions. Limitations based on such considerations would serve Canada well.
An issue on which Canada and the USMCA now lead together in a positive direction is the recognition of safe harbours for online service providers hosting user-generated content. As we noted in our brief, studies have shown that the impairment of safe harbour protections would have the greatest impact on small and local OSP entrants that don't have the resources to do mass filtering. We recognize, however, that no regime is perfect. In our brief, we urge the consideration of measures to address spamming activities under Canada's notice and notice regime. As in the case of technical measures, both the constraints and necessary relief from them are now moving targets that are best aimed in tandem.
In terms of site blocking, this is a measure long opposed by CTA, which has been raised again by participants in your review. When drafted in the U.S. as part of the proposed SOPA/PIPA legislation six years ago, such proposals collapsed under expert scrutiny and public outrage. In the Canadian context, such measures would have the additional drawback of depriving entrepreneurs and users of access to sites available in other portions of North America and beyond.
CTA also opposes recent proposals for new levies and design constraints on products and services. Such measures become distortive of technologies and markets, and eventually are made irrelevant by technology change except for lingering lawsuits. In our experience, device levies do not satisfy rights holders' needs to respond to technical change, and, again, quickly become outmoded.
In terms of copyright term extension, CTA views the public domain as a valuable resource for cultural creativity and for future innovation. We see Canada's agreement in the USMCA to add 20 years to terms to match the situation in the United States as unfortunate, but we would hope that in your review, through the measures we have suggested, you can mitigate the consequences of contracting the public domain. It has been suggested in the U.S. that some formality should apply in the last 20 years of protection to avoid orphan work problems, and Canada may also consider such a solution.
In conclusion, the pace of innovation is often faster than anybody's ability to legislate responsibly. Even the pace of a five-year review cannot anticipate or keep up with the changes that have replaced mechanical devices with digital ones, and then replaced many of those devices with online services. CTA recommends that this committee put a premium on creativity and innovation and be skeptical of impositions on digital services, digital devices and online services.
On behalf of CTA, I thank you for this opportunity to participate.