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Another Copyright Bill Hits the Scrap Heap: Taking Stock of Canadian Digital Law and Policy Reform

By Michael Geist

Later today, it appears certain that the government will lose a non-confidence motion, spelling the end to the current Parliament and sending Canada into yet another election. There have been some legislative and policy successes since 2008 including the Anti-Spam law (C-28), a law involving ISPs and child pornography (C-22), and the recent launch of open government and open data initiatives.  In addition, the government re-appointed Privacy Commissioner of Canada Jennifer Stoddart for another three year term, supported the entry of Globalive into the Canadian wireless market, and pressured the CRTC to revisit its policy on usage based billing.

Notwithstanding these developments, the focus will undoubtedly shine on the bills and policies that were started but not completed. These include:

• the digital economy strategy
• a policy on foreign investment in telecommunications
• a policy on foreign ownership in book publishing and distribution
• a policy on the forthcoming wireless spectrum auction
• Bill C-29, a bill to reform PIPEDA
• Bill C-32, the copyright reform bill
• Bills C-50, 51, 52, the lawful access bills
• Bill C-393, the private members bill to facilitate access to generic medicines in Africa

The future for each of these initiatives varies.


A digital economy strategy (which could incorporate the other policies) will be introduced sooner or later, perhaps sooner if the political parties use the election campaign to outline their vision of what the policy should look like. Bill C-393 will always face an uphill battle given opposition from pharmaceutical companies, but the broad range of Canadians who spoke out on the issue are unlikely to stop pursuing reform.  Lawful access never dies and will undoubtedly be reintroduced by a future government with little enthusiasm.

The privacy bill is probably dead. PIPEDA faces another statutorily-mandated review this year, so any future government is likely to wait for the results of that review before re-introducing privacy reform.  Given that it took four years to get this bill, that does not bode well for meaningful privacy reform in the foreseeable future.

Many people may welcome the demise of the copyright bill, but I must admit that I'm not one of them. This is the third copyright bill to have hit the scrap heap, following in the footsteps of Bills C-60 and C-61, neither of which made it past first reading. Bill C-32 is obviously the closest Canada has come to digital copyright reform - a full public consultation in 2009, a bill in 2010, and several months of committee hearings into 2011. 

I always described the bill as flawed but fixable and that remained my sense after the many committee witnesses. The committee process did provide some valuable information - confirmation of the effectiveness of the notice-and-notice system, the broad support for a digital lock exception for non-infringing purposes (including consumer groups, education, libraries, retailers, and telecom companies), and the value of codifying the Supreme Court of Canada's fair dealing test into the Copyright Act to address uncertainty concerns. No matter the outcome of the upcoming election, copyright reform will quickly be back on the legislative agenda (though likely not until late 2011), hopefully in amended form that builds on the good in C-32 and the lessons learned through months of hearings and public feedback.

Full post as published by Michael Geist on March 25, 2011 (boomark / email).