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Designing A Copyright Law That's Built To Last

By Michael Geist

As the national copyright consultation launched earlier this summer hits the midway point, the first four weeks have attracted considerable interest.  There have already been more than a thousand submissions, one town hall meeting, and five roundtable discussions, with many Canadians visiting copyrightconsultation.ca to provide their views on copyright reform.

Changes such as expanded fair dealing, legal protection for digital locks, and new digital levies have emerged as the most-discussed issues. However, my weekly technology law column (Toronto Star version, homepage version) grapples with one of Industry Minister Tony Clement's core concerns: In an era of rapidly changing technology, how does the government ensure that a new copyright bill is built to last?

Clement's focus on longevity appears to be a tacit acknowledgement that Bill C-61, the last Conservative copyright bill that died with the federal election call last fall, was not sufficiently forward looking.  With specific references to VHS tapes, emphasis on digital rights management, and blocks on the use of network-based personal video recorders, critics argued that bill was past its best before date the moment it was introduced. Designing copyright reforms that are not rendered outdated soon after introduction requires identifying the right principles to use as a metric against which new provisions can be measured.  At least four come to mind.

First, copyright law should strive for balance between creator rights and users' rights.  If the law tilts too far in one direction, the other side is virtually guaranteed to put the issue of reform back on the table and the changes do not last. 

Second, the law must be technologically neutral.  Copyright has proven remarkably resilient over the decades in large measure because it states broad principles about the scope and limits of protection.  If copyright veers too far toward specific technologies by mandating new protection for specific business models or technological innovations, those rules risk being overtaken as the technologies and marketplace evolve.

Third, the law should strive for simplification and clarity.  Copyright may once have been a niche issue understood by a small number of experts, yet today it affects the daily lives of millions.  If Canadians are to respect the law, they must first understand it.  When Bill C-61 proposed a 12-part test to determine whether recording a television program was legal, it rendered the law far too complex for the average person.

Fourth, the law should embrace flexibility, which has allowed many copyright provisions to adapt to continually changing economic and technology environments. Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary film makers, musicians, teachers, researchers, businesses, or consumers.

How would these principles apply to the thorniest issues faced by Clement and Canadian Heritage Minister James Moore?

On the issue of fair dealing, balance requires that it remain fair dealing, not free dealing.  Technological neutrality, simplification, and flexibility suggest that the best approach may well be to expand the current list of fair dealing exceptions by making it illustrative rather than exhaustive. Courts would be freed to add new exceptions such as parody or recording television shows. This approach would remove the link to specific technologies and would build in new legal flexibility.

Similarly on the issue of digital locks, linking the picking or circumvention of a digital lock to the intent to infringe copyright would retain the copyright balance, avoid the need for complex exceptions, and do away with specific references to technology. 

Copyright reform is never simple, but a principled, forward-looking approach is the right place to start.

Full post as published by Michael Geist on August 17, 2009 (boomark / email).