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Conference Board of Canada Releases New IP Report, Backs Away From Prior Recommendations

By Michael Geist

The Conference Board of Canada has released its long-promised report on intellectual property policy in Canada.  Readers will recall that last spring the Board withdrew three reports funded by copyright groups after admitting that the reports contained plagiarized passages.  In fact, the copyright report recommendations and text were taken directly from the IIPA, the leading copyright lobby in the United States.

The new report, which weighs in at 113 pages, was completed by Ruth Corbin, a Toronto-based IP expert.  Corbin started from scratch, reading a broad range of materials, conducting interviews, and leading a private roundtable on the issue (I participated in the roundtable and met separately with her).  While there is much to digest, the lead takeaway is to marvel at the difference between a report cribbed from lobby speaking points and one that attempts to dig into the issues in a more balanced fashion.  Three examples:

First, the report puts intellectual property policy into perspective as just one portion of the innovation agenda, noting that over-protection can be lead to diminishing returns:


Furthermore, protection rights are not the only policy option for the big-picture goal of improving Canada's innovation track record. Indeed, statistical evidence demonstrates a non-linear relationship between strength of intellectual property rights and a country's record of innovation. There are diminishing returns to rights after a certain point of 'strengthening' ('the more the better' loses validity at some point), and countries have other policy means of encouraging innovation. Intellectual property rights should thus not become the whipping boy of debate. They are a necessary component, but not the sole guarantor of Canada's innovation ranking and economic competitiveness. That conclusion should allow other considerations to enter the debate, such as compatibility with foreign policy, attraction of investment capital, consistency with privacy laws, business soundness, and common sense.

Following a literature review on the issue, the report concludes "a review of the literature reveals conflicting evidence and non-definitive conclusions regarding the impact of intellectual property rights on innovation."

Second, Chapter 5 of the report - The Digital Economy and Copyright in the 21st Century - is effectively the re-write of the withdrawn copyright report.  While the withdrawn report called specifically for DMCA-style anti-circumvention rules, notice-and-takedown requirements for ISPs, and blocked education-specific exemptions, the Conference Board has now backed away from all of those recommendations.  The ISP issues and fair dealing are simply described in a balanced fashion, pointing to the debate but avoiding a specific recommendation.

On anti-circumvention and WIPO, the report recommends ratification but notes the flexibility that exists in implementing the treaty.  After discussing the need to ratify, the report states:

legitimate concerns have been raised. Many of these concerns, it would appear, can be dealt with as tactical matters. For example, one concern is that the WIPO Internet Treaties could end up doubling our existing private copying levy in order to support royalty payments to foreign entities. Assuming such an analysis to have been accurately conducted and found to yield so perverse an outcome, a tactical repair could be readily undertaken by parliamentary direction to the Copyright Board of Canada.

With respect to anti-circumvention regulations, and assuming the WIPO Internet Treaties are brought into force, professors de Beer and Geist offer additional analysis of the cautionary measures that the Government of Canada should exercise to limit the scope of what should be considered a circumvention offence (i.e., circumventing for the purpose of committing copyright infringement). Their analysis provides yet another example of how to break the issues into manageable pieces. Indeed, there is some room for Canadian customization in how the WIPO provisions would be accommodated in our laws: the implementation models all differ for the U.S., the European Union, Japan, and Australia, although all have ratified the same WIPO treaty.

In other words, the Conference Board report now points to the flexibility in the WIPO Internet Treaties and the possibility of "Canadian customization."  This is precisely what many fair copyright supporters argued during the national copyright consultation and it is good to see the Conference Board now reach the same conclusion.

Third, the report recommends greater adoption of open access strategies.  In discussing the tabling of a new copyright bill, it notes:

Simultaneous support for "open-access" initiatives, where appropriate - such as facilitation of the use of government data with suitable safeguards, and readier access to publicly funded research - would help to unlock tremendous stores of knowledge and balance out the resources being expended on protection of rights.

While there is much to consider in this report, it certainly appears to be a good faith effort to examine the issues from a non-partisan perspective.  The Conference Board points to the need for copyright reform, but does so in a manner with far more context and balance than was found in the withdrawn, plagiarized reports.

Full post as published by Michael Geist on February 10, 2010 (boomark / email).