Giuseppina D’Agostino is the Founder and Director of IP Osgoode, and an Associate Professor at Osgoode Hall Law School

On Dec 1, 2010, I was invited to appear as a witness to the Parliamentary Committee Hearings of Bill C-32, An Act to Amend the Copyright Act (also known as the “Copyright Modernization Act”). I was part of a panel with Professor Michael Geist (University of Ottawa) and Barry Sookman (partner at McCarthy Tétrault). My opening statement is reproduced below and the full video can be accessed from the Parliamentary site.

I want to start by thanking the committee for inviting me as a witness on such an important issue in the history of Canadian copyright that I care deeply about. I offer my comments as a law Professor at Osgoode Hall Law School, where I am the Founder and Director of IP Osgoode, Osgoode’s IP law and Technology Program. I offer my comments without an agenda or interest to support any one stakeholder group, but to aspire towards a balanced approach weighing all of the challenges the government faces and the various stakeholder interests.

The Bill is ambitious in its attempt to achieve this balance as there are numerous provisions put forward trying to address the varying interests and challenges. Despite this valiant attempt, the Bill does need fine-tuning since some issues are still left unaddressed, and others ambiguously addressed.

If we start with the policy that we want to have as many end users, the public, to have the ability to create, authors to continue creating, for creativity and innovation to flourish, and have the greatest dissemination of works, while at the same time ensuring that there are some viable means by which the uses of others’ works are compensated, then this Bill still needs some work.

And if want legislation that is clear and understandable to Canadians, then we also need to do better.

In the time that I have I will focus on just a few points that can be rehabilitated in this Committee:

My first point deals with the amendments proposed to s. 29 on fair dealing: While it is salutary to have added “parody or satire” as a new purpose, I am still unclear as to why “education” was added as a new purpose under this provision.

This new purpose is too broad and invites years of litigation to clarify, leading to access to justice issues and forcing the courts to resolve matters that are for the government to legislate on (with the competence in doing so).

So what is the policy behind this provision? What problem is there with respect to education that is not currently addressed in the other sections of the Act? And if the government has something in mind, then it should say so expressly, and not purport to do so ambiguously through a catch-all term, hoping that whatever it is that is meant or might be meant, is addressed.

Significantly, there is no precedent case law for this purpose and so the courts will be left to do the job of government. I should note that there is now ample case-law on the other purposes.

How do we fix it? Legislating the Supreme Court of Canada’s CCH factors is not an answer. It does nothing to clarify what we mean by “education.” The government should pronounce itself on court decisions, when it wishes to overrule them, not when it agrees with them, and certainly not when it has before it a unanimous Supreme Court of Canada decision as in the case of CCH. It might, for instance, intervene to legislate a lower court decision it agrees with where it thought higher courts might overrule it, but it makes little sense to intervene and restate what the Supreme Court of Canada has already said. 

So the question remains, how do we fix it? Do we legislate the Berne or TRIPS 3 step test that restricts permissible exceptions in national legislation to “certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author”? I don’t think this by itself is an answer either.

This would be inviting more ambiguity to an already ambiguous framework in defining, for Canada, what is meant by normal exploitation, what is unreasonable prejudice, what are the legitimate interests of the author and so on. It would run the danger that Canada’s law would be determined in Geneva by WTO panels making decisions on the TRIPs provisions.

What we need to do to fix fair dealing with respect to “education” as a purpose is to, at a very basic level, isolate what the problem really is that we are trying to solve through legislation, and express that. If we know what it is then we should say so.

If we don’t know what it is but have a sense that we need to do something, then I would suggest the use of a more flexible framework, for example: include a provision at the end of s. 29 stating something like “it is not an infringement of copyright to deal with such educational purposes in such manner as the Governor in Council may prescribe by regulation.” This would allow for a more evidence-based approach, and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time.

My second and concluding point: given the policy questions of balance, unaddressed is the issue of tackling matters for creators head on in a way that would ensure that they are compensated for the uses of their works, and I would be happy to address this matter more fully, if given the time in discussion. Creators in some ways are caught in the middle of owners on the one hand and users on the other. An area I’ve done a lot of work on is the copyright relationship between owners and creators.

In terms of this Bill, creators seem to be potentially undermined either by a provision like the revised fair dealing clause, or by another like s 29.21 on non-commercial user-generated content (UGC), which in its current form also remains vague and may have unintended consequences.

Those are my introductory comments and I look forward to your questions.