Canadian Copyright's Just Three Things

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

Among the many potential issues that I could discuss in Canada’s copyright consultation process, I will address just three things that I think are necessary to help position Canada as a global leader in copyright policy. Namely, the need to consider (1) process in copyright reform (2) copyright within IP (and other areas of law); and (3) substance in simplicity. 

(1) Process: while the substance of the Copyright Act is paramount, the way at which we arrive at the right stuff is also key. Besides the importance of copyright being recognized within many more government departments (and this multi-departmental web of work, also merits discussion) we need to found process mechanisms that can weather us through many more copyright reform cycles. Here I think we can learn from other countries. The UK, to name but one example is getting it right. Out of the 54 recommendations from the 2006 Gowers Review, one which saw immediate action was the need for ongoing strategic analysis in IP policy; this led to the 2008 establishment of the Strategic Advisory Board in IP (SABIP).

SABIP provides an independent and evidence-based approach to policy reform.  SABIP recognizes that “policy developments, especially those requiring legislative change or international agreement, will probably take significant time to be implemented.  Yet, the current economic situation is causing a particular spotlight to fall on the need to maximise, urgently, the contribution of the creation and exploitation of intellectual property as an aid to economic recovery and future prosperity.”

We need to be guided by more independent, evidence-based research; this should not be something that is done at the drafting stage; indeed, it should be the evidence that guides the policy reform and not the interest groups. There is a difference between evidence-guided reform versus reform guided by the loudest voices: the loudest voices don’t equal the soundest voices.

In Canada, we see that the lack of evidence-guided reform has led to a climate lacking trust, cooperation, and reason. For innovation and creativity to flourish, we need more transparency, collaboration, and harder facts. Government needs to lead and forge more open and transparent links with industry and academia; here establishing a group like SABIP is a first step.

(2) Copyright within IP (and other areas of the law): copyright is just one piece of the puzzle. When we speak of fostering innovation and creativity, it’s impossible to see copyright in isolation of the other IP areas, especially when some of the fundamental principles underpinning protection are shared; and when rights-holders often obtain duplicate protection within other IP areas such as patents, trade-marks and industrial designs without rhyme or reason. This can’t be efficient or helpful to foster innovation. Here Canada’s leading software and gaming industries are two cases in point where we need to strategize on this IP convergence and complexity. Osgoode’s Professor David Vaver has called for a unified intellectual property code to encourage activities that benefit Canada’s economy; for more, do read his post on IP Osgoode, Osgoode’s new IP and Technology Program at http://www.iposgoode.ca/the-ipigram-october-22-2008/.

We should also recognize that the Copyright Act should not and was not meant to do it all and fix the entire kitchen sink and that we should be less demanding of all the issues we want it to solve. Also, other areas of the law such as competition, labour, education, consumer law, and privacy law present reform options across various levels of government; in addition, regulations and self-standing sui generis legislation can also provide redress.

Last, (3) substance in simplicity: this point has been made numerous times by my colleagues and members of the general public; for laws to work they need to be clear and understandable to Canadians.  Simplifying copyright should not be an afterthought as considered in the federal government’s Oct 2002 Section 92 report. So when we speak of copyright, the Act needs to articulate a purpose, a vision at the outset. This is not a panacea, but from this vision flows the substance. In this purpose, the copyright bargain with the public must be recognized, as must the need to protect creators; increasingly, authors and users have been overshadowed by provisions largely favouring rights-holders, and here a theme which has consumed a lot of my work on freelance authors is that creators are often not rights-holders.

These important copyright contract matters merit legislative intervention; again to mention the UK, a government commissioned study on point is underway. I’ve advocated for clearer provisions favouring weaker parties such as creators especially in the era of standard-form contracts as just one possible solution; and here contract law also impacts users.

These simple and flexible principles need to be considered when addressing other issues like fair dealing and technological protection measures.

By focusing on just three things, we will be taking a major step towards fostering a more innovative, competitive and creative Canada.