Copyright Review in Canada: INDU Committee Issues Clumsy and Tone-Deaf “We’re in Charge” Press Release

In an extraordinary display of gamesmanship, (one might say one-upmanship) the Standing Committee on Industry, Science and Technology (INDU Committee) felt compelled to issue a clumsy and tone-deaf press release, titled “On Shifting Paradigms” on June 18 reminding the world that it has “sole responsibility” for the statutory review of the Copyright Act. It is most unusual for one Parliamentary Committee to comment publicly on the work of another, in this case the report of the Standing Committee on Canadian Heritage, Shifting Paradigms, issued last month. In effect, the press release confirms that in delivering its report, the INDU Committee did not take into account the Heritage Committee’s report even though Shifting Paradigms addressed a number of issues relevant to the current review of the Act, and even though it was commissioned by INDU when it invited the Heritage Committee to conduct a companion study on remuneration models for artists and creative industries, and to provide INDU with a summary of its findings. The Heritage Committee did just that although in the form of a report to Parliament, as is its right, rather than through a direct submission to the INDU Committee.

It is perhaps not surprising that the INDU Report, issued barely two weeks after Shifting Paradigms was released, did not comment on or appear to take into account any of the Heritage Committee’s recommendations because the two committees ran a largely parallel process. Drafting a committee report of this magnitude, in both of Canada’s official languages, is not an overnight process and for the INDU Committee to have stopped its work to fully examine and comment on the work of another Parliamentary committee would have considerably delayed the release of its own study, which is already well beyond the supposed five year mandate for review. However, one would have hoped that there would have been an informal sharing of views by members of both committees as the work of both progressed so that the two reports might have found more areas of commonality in terms of recommendations. Be that as it may, both reports are now out there for Parliamentarians, the government and the public to consult and to provide input to inform the policy-making process.

When I commented on the Shifting Paradigms report after it was issued, I called it an “important milestone” but noted that it was only part of the story. A “second shoe” (the report of the INDU Committee) had yet to be dropped. That occurred on June 3, and as expected, the two committees were not always on the same page, although on a number of issues they were not that far apart.

The release of Shifting Paradigms seemed to have enraged some anti-copyright commentators in Canada almost as much as it was welcomed by members of the creative community. Anti-copyright crusader Michael Geist condemned it as “the most one-sided Canadian copyright report issued in the past 15 years” and claimed that there was “no attempt to engage with a broad range of stakeholders”, even though he himself appeared along with a number of others who share his perspective on copyright. Perhaps it’s because the Heritage Committee didn’t buy into their views that it has been accused of being “one-sided”, whereas the INDU Report–which endorsed a proposal that Geist has long favoured of making the list of fair dealing purposes in the Act illustrative rather than exhaustive—comes off as being “balanced” insofar as Geist is concerned. In other words, if you agree with my views, your outlook is balanced; if you don’t you are one-sided.

In recent days, Geist has continued his assault on the Heritage report, trying to undermine its credibility by citing the fact that, among other things, INDU heard from more witnesses and received more briefs than did the Heritage Committee; 203 for INDU versus 79 for Heritage with regard to witnesses and 271 to 76 for briefs, according to his figures. (Some witnesses appeared before both committees and some organizations submitted briefs to both.) I am not sure what this numbers-game proves other than the fact that more people and organizations chose to provide input to INDU than to Heritage. This is entirely logical as INDU was the committee with statutory responsibility, while the Heritage Committee’s focus was on artist and creative industries remuneration models, an issue they addressed in some detail. No-one who wanted to submit a brief to the Heritage Committee was prevented from doing so. For example, I submitted a brief to the INDU Committee (on pirate website blocking as an anti-piracy measure) but did not submit this same brief to the Heritage Committee although I could have. I did not do so because, in my view, it would have been unnecessary duplication but also because my brief did not directly address the issues that the Heritage Committee was considering. This is no way invalidates the conclusions that the Heritage Committee came to regarding the issues that it reviewed.

Not just content to criticize the recommendations in Shifting Paradigms, which is his right, Michael Geist seems intent on trying to denigrate and belittle the work of the Heritage Committee, claiming that it has been “dismissed” and “ignored” by INDU (although in fact, according to Dr. Geist’s own words, “the (INDU) committee thanked its colleagues and noted that it “looks forward to consulting their report.”). Moreover, in the mandate letter provided to the INDU committee by the Ministers (note plural) of Industry, Science and Technology and Canadian Heritage, the Committee Chair was tasked, among other things, to “tap into the expertise and informed perspectives of the Standing Committee on Canadian Heritage throughout this review”. The INDU Committee appears not to have done so in preparing its report although apparently it will consult the Heritage Committee’s views and conclusions at some later date. Certainly the government (whoever the government will be after the General Election set for October 21) will need to take into account the views of the Heritage Committee even though the INDU Committee has statutory authority under the Act. You don’t govern successfully by ignoring or dismissing the creative community in Canada, an important constituency culturally and economically.

Given the timeframe of the review, and the impending election, it is not surprising that the Heritage Committee sent its report directly to Parliament, but one wonders what insecurity compelled the INDU Committee to proclaim publicly in a press release that “Reviewing the Act was INDU’s sole responsibility” and “INDU fully stands by the report it presented to the House of Commons”. I don’t think I have heard anything quite so shrilly self-justifying since Al Haig’s “I’m in charge here” comments back in the 1980s. One would expect the members of the INDU Committee to stand by its report, otherwise why issue it?

I guess we will never know what prompted the INDU Committee to issue a press release stating the obvious, and seeking to justify their statutory role. Recall that both the INDU and Heritage Committees are all-party committees and both are chaired by members from the governing Liberal Party. The takeaway here is that one would have thought this could have been sorted out between colleagues without the need to go public in a press release. In doing so, they seem to have played into the hands of the anti-copyright crowd. No sooner was the press release issued, than Geist was crowing how, just hours after he had posted an analysis claiming that the Heritage Committee had “ignored its mandate”, INDU felt the need to confirm that its report is the “exclusive copyright review”. Maybe so, but in shaping policy the government can accept all, parts or none of the INDU report and its recommendations, and can in addition take such other input as its deems necessary, including as an example some of the recommendations put forward by the Heritage Committee.

Anyhow, thank you INDU. We now know that you’re “in charge” and that you stand by the recommendations that you put forward. You have confirmed the obvious, that you have the statutory authority to conduct the review. (Whether putting the Copyright Act under the authority of what is in effect a “Ministry of Industrial Development” rather than a “Ministry of Culture” is another question, but that is the way it is in Canada for the moment. In a number of other countries, copyright policy is the responsibility of ministries more attuned to the realities of creators and the creative industries). Having the statutory authority (“sole responsibility”) doesn’t mean you have the exclusive monopoly over knowledge, insights or wisdom—let alone communication skills! If one wanted to alienate and insult Canada’s cultural community, the tone-deaf INDU press release couldn’t have been a better way to do it. INDU didn’t even have the smarts to think up a catchy title for its report, like the Heritage Committee did with Shifting Paradigms.

What all this will mean for the eventual shape of any changes to Canadian copyright law remains to be seen. After October 21 it will depend in part on who forms the government. Whoever that is will be truly “in charge” of whatever changes are brought forward to Canada’s copyright legislation, notwithstanding the INDU Committee’s ill-thought out, insensitive and badly-timed press announcement.

© Hugh Stephens, 2019. All Rights Reserved.