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Last Thursday the National Post published my editorial on copyright reform, under the headline  Respect and reality are keys to reform. Unfortunately the article was pretty hard to find online, so I've provided the full text here.
The editorial largely reflects my comments at the copyright consultation roundtable held in Gatineau in late July. Here's the audio recording of that event and the transcript is here, if you want to know how I elaborated on some of the ideas I presented.
In the Post I argue that copyright can be a polarizing topic,
caricatured with imagery of toiling creators and freeloading pirates.
The latest line is that Canada’s laws are hopelessly antiquated and
can’t possibly cope with new cultural or technological phenomena.
This kind of talk may produce headlines and a quick batch of legal
reforms, but it does nothing to constructively facilitate intelligent
policymaking. That requires a more nuanced point of view.
The truth is Canada’s copyright laws already help make our business
and creative investment environments among the best in the world, and
it is past time to stand up and say so. Is there room for improvement?
Of course.
But in the reform process, we should realize that the same old
factions or factors that once controlled creativity don’t drive
innovation and investment decisions in the 21st-century digital
economy. So the government should be congratulated for launching broad
public consultations on copyright.
Digesting the hundreds or thousands of diverse responses and somehow
spinning them into a coherent policy framework to underpin legal
reforms will, however, be a daunting task. It is too early to say for
sure, but I suspect comments will coalesce around a few guiding
principles.
The first is respect for rights-holders. Most Canadians value our
extraordinarily talented community of creators and understand the
importance of encouraging investment in this sector. The rights of
creators, producers and distributors must be protected for Canadian
culture and commerce to thrive.
Don’t confuse this support, however, with endorsement of outdated
American experiments that have not delivered their promised benefits
for the digital economy. Instead, let’s focus on promoting and
defending the rights already contained in our legislation against the
self-defeating lobbyists who undermine faith in Canada’s copyright
system. Reacting to the rhetoric that Canadians are all pirates whose
laws don’t reward creativity would disrespect our artists and devalue
our work to protect them.
Better to listen closely to Canadian creators — our songwriters,
musicians and documentary filmmakers and others — about streamlining
licensing systems. Many of Canada’s biggest technology and telecom
companies share the desire to make voluntary licensing easier. There
are ways this can happen. Innovative market permissions, not complex
legal prohibitions, will get rights-holders paid for the valuable
products they provide.
Sadly, there will always be people who want something for nothing,
freely downloading their digital entertainment, copyrights be damned.
The key question is what to do about it.
All the digital locks in the world won’t stop downloading, and
neither will even the toughest prohibitions on circumventing
technological protection measures. Those kinds of laws won’t encourage
investment either. Anyone who plans to be in business five or 10 years
from now already knows that relying on locks and lawsuits is a bad
idea.
Rather, anti-circumvention laws and accompanying prohibitions on
multi-purpose technological tools will almost surely have unintended
consequences. Research shows these could include less competition in
digital content and consumer-electronics industries, reduced training
and research capacity for future leaders and barriers stopping Canadian
creators and entrepreneurs from fully engaging in the networked
information economy.
A second principle likely to emerge from consultations is that
Canadian creators, consumers, educators, high-tech industries and other
innovators all need more flexibility for fair dealing — our right to
use copyrighted materials without the owner’s permission in certain
contexts. Fair dealing, called fair use in some countries, is allowed
by our current copyright law, but only if the purpose fits a particular
pigeonhole like news reporting, private study or a few others. These
artificial categories can’t really capture new technologies and
practices.
Laws that criminalize common behaviour and do not reflect Canadians’
everyday realities are not sustainable. The only result will,
unfortunately, be more public frustration around the very concept of
copyright.
Canadian law currently suffers from this flaw, so reforms are needed.
But the last attempt at legislation, Bill C61, wouldn’t have solved
anything. Rather, it masked the symptoms with unbelievably bizarre
provisions pertaining to things like videocassettes. These were
outdated the moment they were drafted, and anyways would have been
trumped by the aforementioned anti-circumvention provisions.
The most sustainable fix is a simple, technologically neutral approach
that makes enumerated examples of fair dealing illustrative rather than
exhaustive. Flexible fair dealing doesn’t mean total freewheeling. The
Supreme Court has given us the guidelines for figuring out what’s fair
and what isn’t. Stakeholder collaboration will lead to best practices,
but only if the legal framework is flexible enough to accommodate
reality.
There are other pressing matters, like performers’ rights,
intermediary liability and statutory damages, that should also get
attention. As with anti-circumvention and fair dealing, a balanced
approach to these issues will benefit everyone by facilitating the
cultural, technological and industrial innovations to power the
Canadian economy for decades to come.
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