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Economic prosperity is an important priority for the current Government of Canada. Copyright plays an important role in our economy, but its influence is often misunderstood. Overreaching copyright laws can stifle competition, reduce productivity and limit growth. To avoid these results, the Conservatives must resist pressure from foreign governments and special interest groups to enact laws that encourage the lock-up of digital content. Paracopyright provisions that protect digital rights management systems, or anti-circumvention laws as they're commonly called, can be bad for Canadian businesses. I recommend that the Government resolve to steer clear of them for a prosperous new year.
First, my academic research has revealed serious
constitutional problems with paracopyright laws that go beyond the
traditional contours of copyright law. I explain why paracopyrights are
probably unconstitutional in this peer-reviewed book chapter. This decision of the High Court of Australia
proves that the issue is real, not imagined. Justice Kirby wrote at
paragraph 214: "To the extent that attempts are made to push the
provisions of
Australian copyright legislation beyond the legitimate purposes
traditional
to copyright protection at law, the Parliament risks losing its nexus
to the constitutional source of power."
Not only are over-broad
paracopyright laws probably unconstitutional, they're potentially
anti-competitive too. The Electronic Frontier Foundation has tracked the unintended consequences of anti-circumvention legislation
that has existed in the US for nearly a decade now. This research
shows how such laws can be used to limit competition and threaten
innovation. For a concrete example, look at Skylink,
a Canadian company that spent millions defending an absurd lawsuit in
the US alleging that its universal garage door openers violated the
anti-circumvention provisions of the DMCA. Sure, Skylink was eventually
held not to be liable, but only the lawyers really win from such
wasteful litigation. These are the types of unintended cases we're likely to see more of in Canada if we follow the American example.
Anti-circumvention provisions are also inconsistent with the Conservative's express commitment to access to knowledge for education and innovation. The Policy Statement of 2005 that I cited in my last post read: "The Conservative Party believes that reasonable access to copyright
works is a critical necessity for learning and teaching for Canadian
students and teachers, and that access to copyrighted materials
enriches life long learning and is an essential component of an
innovative economy." By enacting paracopyright laws that go beyond the traditional scope of copyright protection, the Government would be encouraging the lock-up of learning materials in Canada. This is unlikely to lead to an innovative economy.
Some people might argue that anti-circumvention provisions are needed to facilitate a thriving online market for digital content, especially music and movies. I believe the opposite is true. Consumers have rejected restrictive technologies, and the market is clearly moving away from business models that rely on digital locks. Even the world's major music labels are starting to realize this. Most of them have dropped DRM requirements from their licensing terms. Canadian music creators have come out against digital locks, dismissing them as risky and counterproductive.
It is sometimes said that Canada needs paracopyright protections to comply with its obligations under the decade-old WIPO Internet Treaties. False. Canada has signed but not ratified these treaties. That, as Howard Knopf is fond of pointing out, is like dating is to marriage. Moreover, even if Canada were to implement the two treaties, I'd encourage the Government to have a look at what the WCT and WPPT actually require. The general consensus among experts is that there's no need to enact anything as over-broad as the provisions of the American DMCA.
Instead, if the Government chooses to ignore sound policy arguments and risk violating the Constitution by enacting paracopyright laws, it could and should do so only by making circumvention for unlawful purposes a secondary infringement under subsection 27(2). That simple approach is likely to do the least harm. The better solution, of course, is to follow Isreal's lead and leave anti-circumvention provisions out of this round of copyright reforms. After all, why would Canada want to adopt a 20th century legislative model when
artists, consumers and business have already moved into the new
millennium?
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