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The second copyright resolution I'm recommending the Government of Canada adopt for the new year is to lose some weight from the Copyright Act. Or at least, the Government ought to avoid putting on too many more pounds when it introduces a copyright reform bill in the near future. The Act is already too fat and too complex. While I fully realize that copyright is a complicated subject, the Government should do its best to simplify the law. Here's why, and as importantly, how.
There are several reasons why the Government should keep it simple when
trying to reform the law. First, a simpler law is accessible to
ordinary citizens. If people can read and understand the law, they're
more likely to respect and follow it. Enforcement then becomes a much
easier task. Second, reforms should aim to be technologically neutral.
There's no need for convoluted statutes when a couple of concise
provisions can set out the governing principles in a clear and
straightforward manner. Third, streamlined legislation is likely to
more economically efficient than an opus attempting to deal with every
detail which might arise in the application of the law. The
counter-argument that statutory provisions are more stable and certain
than common law precedents is a red herring if we believe that judges
are capable of doing their job to create a relatively predictable legal
environment. Anyways, some litigation to settle ambiguities is
inevitable no matter how the law reads. Even if you believe that a
putatively exhaustive statute is less likely to trigger lawsuits, is it
really worth sacrificing fairness and flexibility for a rough and rigid
framework? I don't think it is.
So I'll give you two examples of how we can keep reforms clear and
simple. Each of these examples will be the subject of their own
resolution recommendations in the coming days, so I'll just sketch out
the basics at this point.
One way to trim fat is to adopt an open-ended fair dealing provision
that doesn't limit allowable dealings to enumerated pigeonholes. No
matter how wise a legislator believes itself to be, it can't foresee
the future. Once we start down the path of listing limited exceptions
to copyright infringement, the list will inevitably keep growing. It
will always be incomplete, and is likely to be outdated before it is
enacted. In my opinion, the best approach is to replace sections 29, 29.1 and 29.2
with a new section 29. The new section 29 would include the presently
allowable purposes as non-exhaustive illustrations of the sorts of
activities that are permissible as fair dealings. A few other
illustrations, such as "shifting" might be helpful to clarify the
legislative intention to allow such activities. Get rid of the strict
requirement of attribution for criticism and reporting, because that's
something judges could and should consider when assessing the fairness
of the dealing. And in terms of fairness, forget about legislating the
list the fairness factors that judges may (or worse, must) take into
account. The Supreme Court of Canada has already endorsed Judge
Linden's guiding principles at paragraph 53 of the CCH v. LSUC case.
The second way to keep the act as simple and concise as possible is to
carefully consider how, if at all, anti-circumvention provisions are to
be incorporated into the Act. Now, for the record, I've written a whole book chapter
explaining that these paracopyrights don't belong anywhere in the
Copyright Act, and why putting them in the Act would exceed the scope
of Parliament's constitutional powers. Thousands of other academics,
commentators, companies and even artists have argued that paracopyright
laws are just bad policy. But, skeptically, I'm going to assume the
Government will ignore the policy arguments, cave to political pressure
from the U.S. ambassador and lobbyists, and enact such laws anyways. If
the Government insists on doing so, it can increase the likelihood the
law would survive constitutional scrutiny and minimize the law's
unintended consequences by putting the new provisions in subsection 27(2)
alongside other sorts of secondary infringement. In Canada, liability
for secondary infringement depends upon knowledge that the work being
sold, distributed, traded, possessed or imported is itself a
copyright-infringing work. So just add a paragraph to subsection 27(2)
making it a secondary infringement to circumvent an effective
technological measure in order to make a copy of a work that the person
knows or ought to know will infringe copyright. We could achieve WIPO
Treaty compliance with one or maybe two artfully drafted new sentences.
It's a simple yet elegant solution.
Ariel Katz
has wisely pointed to Israel's reformed act as a model for Canada to
emulate. Israel's new legislation is about 15% of the size of Canada's
law, and that's before we've introduced a potentially bulky new bill.
In contrast, after Australia amended its law
to appease the Americans, the Aussie act is now a staggering 645
printed pages long. Yes, you read that correctly. Six hundred and
forty-five pages! That includes more than 100 total pages of exceptions
and dozens more pages pertaining to paracopyrights.
By resolving to enact a simple fair use provision and, if
anti-circumvention provisions are inevitable, putting them in section
27 with other forms of secondary infringement, Canada can keep its
Copyright Act's weight under control in the new year.
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