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

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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.

The USMCA/CUSMA and Intellectual Property: Canada Wins

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The government of Justin Trudeau is now moving quickly with legislation to ratify the new trilateral North American trade agreement in the wake of the announcement last month that the Trump Administration would lift the steel and aluminum tariffs that were imposed on Canada (and Mexico) in June 2018 on ostensible “national security” grounds. Yes, aluminum and steel from Canada (and other US allies) apparently threaten US national security according to the justification for the tariffs put forward by the US Administration and imposed during the NAFTA 2.0 negotiations. Continue reading “The USMCA/CUSMA and Intellectual Property: Canada Wins”

Copyright Review in Canada: The Second Shoe Drops

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In the ongoing process of Canada’s copyright review, the “second shoe” has dropped and, as expected, the thud as it landed on the floor of the House of Commons was different from that of its companion report, Shifting Paradigms, the report of the Standing Committee on Canadian Heritage tabled on May 15 of this year. This most recent report delivered by the INDU Committee (officially known as the Standing Committee on Industry, Science and Technology) on June 3 contains thirty-six recommendations. As I noted in an earlier blog posting on Shifting Paradigms, it is not surprising that a number of the INDU Committee’s recommendations are not fully consistent with those of the Heritage Committee; indeed some of them are directly inconsistent. In some cases, the two committees come to similar conclusions but propose different remedies. In a couple of cases, the recommendations are identical. Now the government will have to take both reports into consideration as it decides how to move forward with any changes to legislation. It has 120 days to respond in writing to the report. All of this will be subsumed by a general election on October 21, which will decide whether the current Liberal government will be dealing with the recommendations or someone else. Continue reading “Copyright Review in Canada: The Second Shoe Drops”

Google in Australia: Sudden Conversion or Tactical Manoeuvre?

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In news coming out of Australia, it has been reported that Google has voluntarily agreed to de-index several hundred websites that distribute pirated audio-visual content. This will make it more difficult although not impossible for Australian consumers to access these sites. Village Roadshow Chairman Graham Burke, Australia’s most prominent anti-piracy crusader, has been reported as saying, with regard to Google, “We’ve gone from being enemies to being allies”. That’s quite a transformation. Continue reading “Google in Australia: Sudden Conversion or Tactical Manoeuvre?”

Obituary Piracy Punished: Has Infringement No Bounds?

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A couple of months ago I put up a blog posting about copyright and its intersection with that most universal of human conditions, our finite time on this earth. OK, let’s call it by its real name, death, something that we all have to deal with sooner or later. In that blog, after discussing the issue of how copyright protection extends for a specified period of time after the passing of the author, a term of protection generating economic benefit for the author’s estate which can vary in length by country, I referred to the case of a website that was operating in Canada called Afterlife. If you can believe it, the operators of this site were running a business based on the unauthorized postings of obituaries that they harvested from newspapers and the websites of funeral homes. The business model consisted of selling virtual candles and other forms of remembrance for the departed, all without any authorization from the family of the deceased. Since most obituaries are creations (personal descriptions of a person’s life), they enjoy the protection of copyright, so Afterlife’s business model was not only tasteless and an invasion of privacy but also a violation of copyright law. Now the law has caught up with the operators of the site. Continue reading “Obituary Piracy Punished: Has Infringement No Bounds?”

Canadian Copyright Reform: “Shifting Paradigms” Report Released—An Important Milestone, But Not Yet the Final Destination

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On May 15, the Standing Committee on Canadian Heritage tabled its report, “Shifting Paradigms”, in fulfilment of its mandate to study remuneration models for artists and creative industries. This study forms part of the legislative review of Canada’s Copyright Act being led by another Parliamentary Committee, the Standing Committee on Industry, Science and Technology (AKA the INDU Committee). The Heritage Committee was composed of Members of Parliament from all major political parties, and was chaired, as is normal, by a member representing the government. The report’s conclusions and recommendations are bipartisan (there was no dissenting report other than commentary from a member of the New Democratic Party that the Committee did not go far enough in its recommendations to protect creators). In all 22 recommendations were made, most of them music to the ears of the copyright community. Lawyer Barry Sookman has done an excellent job of summarizing the findings and process here. Continue reading “Canadian Copyright Reform: “Shifting Paradigms” Report Released—An Important Milestone, But Not Yet the Final Destination”

Online Book Piracy: “An Offence Against Moral Justice”

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These were the words used by Philip Pullman, President of the Society of Authors in Britain, in support of a letter to UK Business Secretary Greg Clark, co-signed by over thirty other prominent British authors. The letter pointed out that one in six e-books read online in the UK, about four million books, was pirated annually, with the author receiving no remuneration for his or her efforts. The letter goes on to say that the growth of online book piracy will potentially damage the overall market for books in the UK and make it even more difficult for authors, who on average earn only around 10,500 Pounds (USD $13,700) annually, to make a living and will be a disincentive to the creation of new content. The Society of Authors letter stops short of calling for specific remedies but calls on the British government to “take action against the blight of online book piracy”. Continue reading “Online Book Piracy: “An Offence Against Moral Justice””