Thank you.
Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law and where I am a member of the Centre for Law, Technology and Society. I appear today in a personal capacity as an independent academic, representing only my own views.
I have been closely following the committee's work, and I have much to say about copyright reform in Canada. Given the limited time, however, I'd like to quickly highlight five issues: educational copying, site blocking, the so-called value gap, the impact of the copyright provisions in the CUSMA, and potential reforms in support of Canada's innovation strategy. My written submission to the committee includes links to dozens of articles I have written on these issues.
First, on educational copying, notwithstanding the oft-heard claim that the 2012 reforms are to blame for current educational practices, the reality is that the current situation has little to do with the inclusion of education as a fair dealing purpose. You need not take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court.
Further, the claim of 600 million uncompensated copies that lies at the heart of allegations of unfair copying is the result of outdated guesswork using decades-old data and deeply suspect assumptions. The majority of the 600 million, or 380 million, involves kindergarten to grade 12 copying data that goes back to 2005. The Copyright Board warned years ago that the survey data was so old it may not be representative. The remaining 220 million comes from a York University study, much of which is as old as the K-to-12 data. Regardless of its age, however, extrapolating some old copying data from a single university to the entire country does not provide a credible estimate.
In fact, this committee has received copious data on the state of educational copying, and I would argue that it is unequivocal. The days of printed course packs have largely disappeared in favour of digital access. As universities and colleges shift to digital course management systems, the content used changes too. An Access Copyright study at Canadian colleges found that books comprised only 35% of the materials. Moreover, the amount of copying that occurs within these course management systems is far lower than exists with print.
Perhaps most importantly, CMS allows for the incorporation of licensed e-books, open access materials and hyperlinks to other content. At the University of Ottawa, there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Further, governments have invested tens of millions in open educational resources, and educational institutions still spend millions annually on transactional pay-per-use licences even where those schools have a collective licence.
What this means is that the shift away from the Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licences that provide both access and reproduction rights. These licences provide universities with access to content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for previously acquired materials. Therefore, efforts to force the Access Copyright licence on educational institutions by either restricting fair dealing or implementing statutory damages reform should be rejected. The prospect of restricting fair dealing would represent an anti-innovation and anti-education step backwards, and run counter to the experience of the past six years of increased licensing, innovation and choice for both authors and educational users.
With respect to statutory damages, supporters argue that a massive escalation in potential statutory damage awards is needed for deterrence and to promote settlement negotiations, but there is nothing to deter. Educational institutions are investing in licensing in record amounts. Promoting settlement negotiations amounts to little more than increasing the legal risks for students and educational institutions.
Second, on site blocking, the committee has heard from several witnesses who have called for the inclusion of an explicit site-blocking provision in the Copyright Act. I believe this would be a mistake. First, the CRTC proceeding into site blocking earlier this year led to thousands of submissions that identified serious problems with the practice, including from the UN special rapporteur for freedom of expression, who raised freedom of expression concerns, and technical groups who cited risks of over-blocking and net neutrality violations. Second, even if there is support for site blocking, the reality is that it already exists under the law, as we saw with the Google v. Equustek case at the Supreme Court.
Third, on the value gap, two issues are not in dispute here. First, the music industry is garnering record revenues from Internet streaming. Second, subscription streaming services pay more to creators than ad-based ones. The question for the copyright review is whether Canadian copyright law has anything to do with this. The answer is no.
The notion of a value gap is premised on some platforms or services taking advantage of the law to negotiate lower rates. Those rules, such as notice and take down, do not exist under Canadian copyright laws. The committee talked about this in the last meeting. That helps explain why industry demands to this committee focus instead on taxpayer handouts, such as new taxes on iPhones. I believe these demands should be rejected.
Fourth is the impact of the new CUSMA. The copyright provisions in this new trade agreement significantly alter the copyright balance by extending the term of copyright by an additional 20 years, a reform that Canada rightly long resisted. By doing so, the agreement represents a major windfall that could result in hundreds of millions for rights holders and creates the need to recalibrate Canadian copyright law to restore the balance.
Finally, there are important reforms that would help advance Canada's innovation strategy, for example, greater fair dealing flexibility. The so-called “such as” approach would make the current list of fair dealing purposes illustrative rather than exhaustive and would place Canadian innovators on a level playing field with fair use countries such as the U.S. That reform would still maintain the full fairness analysis, along with the existing jurisprudence, to minimize uncertainty. In the alternative, an exception for informational analysis or text and data mining is desperately needed by the AI sector.
Canada should also establish new exceptions for our digital lock rules, which are among the most restrictive in the world. Canadian businesses are at a disadvantage relative to the U.S., including the agriculture sector, where Canadian farmers do not have the same rights as those found in the United States.
Moreover, given this government's support for open government—including its recent funding of Creative Commons licensed local news and its support for open source software—I believe the committee should recommend addressing an open government copyright barrier by removing the Crown copyright provision from the Copyright Act.
I look forward to your questions.