Mr. Chair and members of the committee, to continue on the theme of a balanced approach to copyright introduced by my colleague Myra Tawfik, allow me to briefly present the journey that has brought me here today.
My many years of practice as a lawyer, during which I ensured the protection of the intellectual property of my clients, as well as the findings of my academic research and my doctorate in law, which led to the publication of a book on the rights of users of copyrighted works in 2017 at Oxford University Press, allow me to assess the issues at stake, both on the side of copyright holders and on the side of users and the public. My remarks are, therefore, in line with this perspective.
Copyright has unique characteristics, but it should not be treated in an exceptional way. It is part of a framework of law and established standards that it must a priori respect. Any derogation from these principles must be taken seriously and cannot be done without thinking about the ramifications it may have on the credibility and legitimacy of copyright, in the eyes of the public as well. Recognizing that copyright must respect fundamental rights, the Canadian Charter of Rights and Freedoms and freedoms, property law and contract law is in fact one of the corollaries of the balanced and measured approach that we advocate in our brief.
My colleague and I will now address specific recommendations in passing that reflect these two guiding principles of a balanced system that must respect fundamental rights and general laws. I will start by making a few recommendations, as contained in the brief, with respect to solidifying exceptions to copyright infringement and user rights.
The specific recommendations made in our briefs regarding the rights of users of copyrighted works are in fact a continuum of the evolution in Canada toward a more balanced approach to copyright, recognizing that users play an integral part in fulfilling the objectives of copyright. We promote continuing an evaluation of recognizing the rights of users, but to the extent that it does promote the objectives of copyright—to the same extent that any expansion of the rights of copyright holders should be made only to the extent that it promotes the objectives of copyright, that is, the promotion of the creation of works and their dissemination to the public.
To begin, a fair use style of approach should replace fair dealing provisions. Eliminating a closed list of specific purposes—such as research, private study, criticism and parody, as in our current act—and replacing them with illustrative purposes, while maintaining a test of fairness justifying some uses of works without the authorization of the copyright holder, would continue to protect copyright holders' interests while offering more adaptability to include new purposes. For example, as we were contemplating, addressing text mining and data mining would come to mind. It wouldn't need to be added each time new technologies evolve. That would also be in keeping with the principle of technological neutrality.
Second, the act needs to clarify that copyright owners cannot contract out of exceptions to copyright infringement, and certainly that would be the case in non-negotiated standard form agreements. A “no contracting out” approach recognizes that exceptions to copyright infringement are an important engine to ensure that copyright respects fundamental rights and other interests that are essential to optimizing users' participation to the objectives of copyright. Such an approach has been taken by other jurisdictions, recently the U.K.
Third, and consistent with a “no contracting out” approach to user rights, technological protection measures should not override exceptions to copyright infringement, as they currently do to a large extent. Copyright holders choosing to secure access and use of their works through TPMs should have the obligation to provide access to the exercise of exceptions to copyright infringement through built-in architecture or other mechanisms.
Fourth, in relation to the constraining effects of TPMs on the legitimate exercise of user rights, specific remedies need to be built into the act when copyright holders fail to provide access to the legitimate exercises of user rights. In addition, proper administrative oversight should be in place to monitor automated business practices of copyright self-enforcement—here, content ID used on Google platforms such as YouTube comes to mind—to ensure that non-infringing material is not inappropriately removed and that freedom of expression is protected.
Just as copyright owners benefit from a wide range of legal remedies when their rights are infringed, it goes without saying that users should also have recourse against copyright owners when their rights of use are not respected. Unfortunately, this is not the case in the act at this time. The creation of specific remedies for users in the act would rectify this imbalance and crystallize the need to respect the rights of users of protected works. Specific remedies for users are provided for, for example, in legislation such as that of France and the United Kingdom.