Creative Commons is looking forward to hosting its Global Summit in Toronto at the end of this month. One of the topics to be discussed is how CC allies from around the world can share information and work together around supporting the reform of copyright rules in service of users and the public interest. CC affiliates are already active in copyright reform and commons advocacy in Europe, Australia, Latin America, and other places. Can you describe what’s going on with copyright reform in Canada, and how the Creative Commons network can help mobilize positive changes? What do you think we should push to achieve at the Summit re: copyright reform organising?
Canada is often held out as a great example of successful copyright advocacy leading to a more balanced law. After more than a decade of debate, the law was overhauled in 2012. While there are plenty of provisions for rights holders – strong anti-circumvention laws and anti-piracy measures – the law also features some innovative limitations and exceptions such as an exception for non-commercial user generated content. There is also a cap on statutory damages in non-commercial cases and a privacy-friendly approach to intermediary liability. Moreover, the Supreme Court of Canada has ruled that fair dealing is a user’s right that should be interpreted in a broad and liberal manner, leading to results that affirm a balance to copyright.
The 2012 reforms also included a mandatory review every five years, which means that a new review will start late in 2017. There is still room for improvement and learning from best practices from around the world would be enormously helpful. Moreover, there is an expectation that some rights holders will demand that the government roll back fair dealing at the very time that other countries are open to fair use provisions. The Global Summit offers an exceptional opportunity to develop national and international strategies, learn about reforms around the world, and begin the process of speaking with a consistent voice on positive copyright reform.
You’ve been a key voice in opposition to international trade agreements that attempt to push through restrictive clauses around intellectual property and e-commerce that enhance corporate protections while downplaying user rights. The most recent version of this was the Trans-Pacific Partnership (TPP), a sprawling agreement signed by 11 Pacific Rim nations, including Canada. Now that the United States, under the Trump administration, has formally withdrawn from the agreement, what is the future for the TPP? And what do you make of the seemingly inevitable reopening of NAFTA, especially with regard to digital rights?
The TPP in its current form is dead. The agreement reflects a bargain for countries premised on access to the U.S. market. Without the U.S., that bargain doesn’t make any sense.
That said, the U.S. seems intent on reviving many of the IP provisions in future trade talks, including NAFTA. The renegotiated NAFTA will have enormous implications for copyright and digital rights more generally. I expect to see pressure for copyright term extension and increased criminalization of copyright. On the digital rights issue, privacy concerns such as data localization and data transfers will be on the agenda. The U.S. is likely to promote restrictions on both issues, leaving countries between a proverbial rock and a hard place with the U.S. seeking open transfers and the European Union focused on privacy protections from localization and limits on transfers in some circumstances.
As usual, there’s a lot of FUD (fear, uncertainty, and doubt) that’s continually sown around claims about copyright’s effect on rightsholders. You’ve written on several of these topics recently, including efforts by rightsholders associations to inflate numbers on piracy rates, fraud in search index takedown notices, and disinformation around the impacts of fair dealing on publishers’ businesses. How can digital rights advocates fight against such tactics?
There has been a remarkable amount of fake news associated with copyright’s effect on rights holders. The Google data on fake takedown notices from its search index were stunning – more than 99% of requests did not involve an actual page in its search index. Similarly, during a recent trip to Australia and New Zealand I was shocked to see how Canadian law has been badly misrepresented with claims about effects on publishers that were simply false.
The best way to counter FUD is with facts. In Australia, one representative from a leading publisher approached me after a talk to express embarrassment over the claims that had been in that country’s policy process in light of the real facts. Our community should not hesitate to counter inaccurate claims on piracy and fair use/fair dealing with a clear, objective discussion of the reality online and in the marketplace.
The issue of supporting and expanding copyright exceptions for education is on the table now within the context of the reassessment of the EU copyright rules, the international agenda at WIPO, and other national level copyright reforms. How do you see this will be addressed within the Canadian copyright reform which will commence this autumn?
Canada included several new exceptions within the 2012 reforms, including the additional of “education” as one of the fair dealing purposes. The reality is that this change was relatively minor since the existing purposes such as research and private study covered most purposes within education. Indeed, the Supreme Court’s rulings on fair dealing were far more important than the legislative change. That said, there will be a concerted lobbying effort to roll back fair dealing for education in Canada that must countered with facts. Further, there is room for improvement. Canada’s anti-circumvention laws are among the most restrictive in the world and do not include a fair dealing exception. That should change if Canada wants to ensure that fair dealing is treated equally in the analog and digital worlds. Moreover, Canada would still benefit from a fair use provision, particularly given the increased emphasis on data and machine learning, which may not neatly fit within our existing purposes in all circumstances.