Thank you very much, Mr. Chair and committee members.
My name is Jeremy de Beer. I'm a law professor at the University of Ottawa and a member of the Centre for Law, Technology and Society, but I'm appearing here in my individual capacity.
I offer this committee only my own views, but based on my experience as a former legal counsel to the Copyright Board of Canada and adviser to the Copyright Board of Canada, as well as to collecting societies, user groups, government departments and international organizations. For over 15 years I've designed and taught courses on copyright, argued a dozen cases on copyright and digital policy before the Supreme Court, and published extensively in this field.
I'd like to specifically mention just two of my recent articles commissioned by the Government of Canada. One was a widely cited empirical study on the Copyright Board's tariff-setting process, which I did for the Departments of Canadian Heritage and what is now Innovation, Science and Economic Development Canada. The other was a thorough review for ISED on methods and conclusions from evidence-based policy-making. I cite these studies to emphasize that my views aren't based on the special interests of certain industries or mere speculation, but on rigorous research that I hope will help this committee make some well-informed decisions.
It’s my third appearance in about a week before a parliamentary committee. Last week my testimony to the Senate's Standing Committee on Banking, Trade, and Commerce focused on proposed reforms in Bill C-86, the budget implementation act, to the Copyright Board and the collective administration of copyright. Yesterday, I testified to the Standing Committee on Canadian Heritage for its study on remuneration models for artists and creative industries, which will feed into this committee's review of the Copyright Act.
I won't repeat that testimony, but I would like to highlight the most important points. First, as I told the banking committee, the resources and proposed reforms to the board and collecting societies are on the whole good, but there remains some important work for this committee to do on a policy level. To the heritage committee, I made the point that if artists have remuneration problems, the root cause may not be copyright at all, but rather power imbalances and unfair contracts with publishers, record labels and other intermediaries. I said that if the government wants to expand anyone’s rights, it could start by recognizing and affirming that copyright doesn't derogate from indigenous people's rights over knowledge and culture.
I think most importantly that whatever the heritage committee and this committee recommends must take account of the dramatic extension of copyright protection in Canada’s most recent trade deal with the United States and Mexico, the USMCA.
With that, let me turn to the statutory review of the Copyright Act that this committee is mandated to do. You do not have an easy task. I've seen the 100 briefs already submitted, and the list of 182, and counting, witnesses you’ve heard from. Here's what I take from all of that. It's much too soon since the last round of amendments to consider any major overhaul of Canadian copyright law. In my view, the most important recommendation this committee can make is to get off the hamster wheel of perpetual copyright reform. lt's not just pointless. It's counterproductive to reopen the act every five years, as section 92 currently requires. Just looking at the list of special interest groups coming to you cap in hand makes one’s head spin.
The act was modernized. That was the word, it was the “modernization” act in 2012. Before that there was a massive expansion of copyright in 1997, and before that in 1989. How can anyone credibly claim to have evidence on whether the last batch of reforms is working or not? How can anyone say with a straight face that the act is already out of date again? These frequent reviews aren't free. There are cash expenses, there are opportunity costs, you could be focusing on other things, and most importantly, there are big policy risks.
To be clear, I'm not suggesting that copyright is unimportant. To the contrary, it's a crucial issue. My point is that we need, and we have, technologically neutral principles, and we need the time to properly implement and interpret, in practice and by the courts, and then consider the principles before giving lobbyists another kick at the can.
When it is seen in that light, I think it becomes easier to discount a lot of the rhetoric and the recommendations around—to list just a few examples—statutory damages to coerce educational institutions into buying licences they may not need or want, website-blocking schemes or special injunctions to give copyright owners more procedural powers than other plaintiffs have, iPod or Internet taxes or other cross-subsidies, and on and on and on.
That said, there's one very recent game-changer that I think this committee should consider, and that's the dramatic expansion of copyright required by the USMCA. The USMCA will give copyright owners an additional two full decades of monopoly. Copyright in Canada will soon last for the life of an author plus 70 years. On average, if you look at life expectancy, that's 150 years—a century and a half—that we have to wait to freely build on and embellish works in the public domain.
I understand why we did that. I'm a pragmatist. If that's what it took to salvage free trade in North America, all right. However, what it means is that Canada has now aligned the term of protection of copyright with that in the United States but not the safety valves, like fair use, that are so crucial for driving innovation. Without counterbalancing measures to align Canadian and American copyright flexibilities, Canadian innovators would be at a huge disadvantage.
In light of the time, let me conclude with my general point on this. For the theory of free trade in copyright-protected works to function in practice, both the floor and the ceiling of protection have to be harmonized. We can't take just the bad of American law without taking the good, so my recommendation above all for this committee is to ensure that in any measures it takes, it consider the changes that USMCA will bring in its report.
Thank you very much.