In this submission, the author presents seven principal proposals for reform that he argues would foster innovation, creativity and marketplace success.  First, he argues for an expanded fair dealing provision that would enhance its flexibility.  His second reform proposal engages with the issue of anti-circumvention provisions, where he argues: 1) for a direct link between anti-circumvention provisions and copyright infringement; 2) against bans on devices that can be used to circumvent technological protection measures (provided that it has non-infringing uses); 3) for the creation of authorized circumventers; and 4) for a positive requirement to unlock for exceptions/right of access.  The author then moves on to a consideration of intermediary provisions, and argues for the establishment of a legal safe harbor in the form of a “notice and notice” takedown system for internet intermediaries and a useful provision for Information Location Tool Providers, while rejecting the “three strikes” system adopted in other jurisdictions.  Fourth, the author proposes reforming the backup copy provision and rationalizing the statutory damages provisions as a means of modernizing copyright law. The fifth reform proposal involves enhancing the public domain, by rejecting an extension in the copyright term and abolishing Crown copyright. Sixth, library provisions should rely on fair dealing provisions, while there should be no internet exception for education. Lastly, it should not be possible to contract out of the core protections and policies underlying the copyright balance.

Michael Geist, Copyright Consultations Submission (2009) 2 Osgoode hall Rev.L.Pol'y. 59.  

This submission elucidates 8 basic principles, and 11 pragmatic recommendations to guide copyright reform. Canadian copyright reform is long overdue, especially in comparison to the progress made in other jurisdictions. The modernization proposed herein is in the public interest as it aims to better protect creators’ rights so as to foster innovation, creativity, competition, and investment and position Canada as a leader in the global, digital economy.

This submission details the reforms that the author believes are necessary in order to “rationalize” the Copyright Act. It attempts to answer five questions which have been posed by the Ministers of Industry and Heritage in connection with the public consultation on the need to “modernize” the Copyright Act. The author is concerned that the ‘modernization’ that is called for may simply serve to protect powerful interest groups such as the MPAA. A variety of reforms are suggested, including: protection from any form of government censorship; a functional definition of ‘works’ which focuses on originality, self-expression and fixation; minimum benefit guarantees for users; an extension of the blank storage device levy; streamlining the acquisition and use of works commissioned for commercial purposes; and the recognition of the right to create and publish works of parody. The author concludes by noting that the whole point of copyright is to obtain the widest access to published works.

This submission addresses the issue of fair use, in both the traditional sense, and in the sense of an expanded and more flexible fair dealing regime. Fair use should not be adopted as it leads to uncertainty, expensive litigation, and leaves important public policy decisions to be made by courts instead of Parliament. Further, fair use would reduce revenues available to creators, (which, in turn would reduce the capacity of creators to innovate), while potentially undermining legitimate collective licensing models. Fair use may also be inconsistent with Canada’s international treaty obligations. Finally, in light of international experience rejecting the adoption of fair use it would be imprudent for Canada to do so.

Barry Sookman and Dan Glover, Why Canada Should Not Adopt Fair Use (2009) 2 Osgoode Hall Rev.L.Pol'y 139.

The Writers Guild of Canada (“WGC”) supports a copyright regime which balances the needs and interests of consumers with the rights and protections of authors. Works should be widely available for use by consumers provided that authors are fairly remunerated for those uses. Rather than criminalize consumers’ actions, the WGC would prefer to see a Copyright Act that pre-authorizes common consumer uses of works in exchange for a revenue stream payable to authors and copyright owners by using the current Private Copying Levy as a model for a more expanded collective licensing scheme. Further, Canada should embrace a National Digital Strategy and implement reforms such that Electronic Rights Management should not be permitted to be removed, fair dealing should not be expanded by the inclusion of a ‘such as’ clause, parody and satire should cease to be infringing activities, shared authorship should be bestowed jointly on the credited writer and credited director of cinematographic work, and the WIPO Treaties should be implemented and subsequently adapted to Canadian circumstances, in no small part to avoid the hostile reception accorded to Bill C-61.

The entertainment software industry is one of the fastest growing market segment in the global economy, with Canada rapidly establishing itself as a world leader in the multi-billion dollar global video game industry.  The employment opportunities in this industry, as well as its investments in research and technology are also significant. These investments are not without risk – in the highly competitive industry of video game production the chance of a video game being a commercial failure outweighs the chances of its success. Internet piracy of video game software has also undergone explosive growth and represents a significant problem for the entertainment software industry. Video game piracy drastically reduces the industry's capacity to sustain the enormously high creative costs associated with video game production, potentially leading to lost revenue, lost jobs, or worse. In an effort to protect their products from piracy, the video game industry has implemented various measures, including technological protection measures and other copy protection techniques, yet such measures are not fail-safe and are subject to circumvention.  Compounding this problem, copyright law in Canada does not provide sufficient protection. Consequently, the Entertainment Software Association of Canada herein presents ways in which Canadian legislators can use copyright law to reduce piracy. Modernizing copyright law will, in turn, allow for a fair and vibrant marketplace and, in so doing, enhance both Canada’s competitiveness and the public interest.

In this submission, the author articulates the principles that she feels should guide copyright reform. Appropriate reforms would aim to restore legitimacy to the Copyright Act by ensuring technological neutrality, and by implementing the WIPO treaties in a manner that best suits Canada’s specific circumstances, policy traditions, and cultural goals. Clear legal drafting so that ordinary Canadians can understand the Act is also essential. Strong users’ rights foster expression, enhance learning opportunities, and make creation possible in the first place. With respect to specific reforms, Digital Rights Management must not prohibit anti-circumvention for non-infringing purposes, licensing regimes must be accountable and transparent, and copyright protection generally should be subject to a flexible and broad fair dealing test by the inclusion of a “such as” clause in the current fair dealing provision of the Copyright Act, as guided by the Supreme Court’s test in CCH v. Law Society of Upper Canada.

Laura Murray, Copyright Consultations Submission (2009) 2 Osgoode Hall Rev.L.Pol'y. 239.