Vancouver Sun: 2008 February 19
This is the third weekly submission by Business BC’s newest columnist, Michael Geist, one of Canada’s leading experts in technology law and policy. A law professor at the University of Ottawa, Geist is a frequent and outspoken commentator on digital copyright, privacy, telecommunications, and Internet law issues. His column provides a uniquely Canadian perspective on the intersection between law, technology, and policy.
Under most circumstances, Telus and Rogers Communications fiercely compete in the marketplace. The same can be said for Google and Yahoo!, the world’s two leading rival Internet search companies. Yet last week these companies joined forces with a who’s who of the telecom, Internet, retail, and broadcast communities in a single cause — the call for fair and balanced copyright reform.
Following months of Industry Minister Jim Prentice citing business demands as a critical factor behind his commitment to copyright reform, a powerhouse group of companies and business associations formed the Business Coalition for Balanced Copyright ( BCBC) to speak for themselves.
The coalition, which also includes the Canadian Association of Broadcasters, the Canadian Wireless and Telecommunications Association, the Canadian Association of Internet Providers, the Computer and Communications Industry Association, and the Retail Council of Canada, publicly released a seven- point plan for balanced copyright reform that responds to business concerns that “ the government would err too much on the side of the copyright holders.”
For example, the BCBC’s plan cautions against overly restrictive legal protection for digital locks, warning that new provisions “ must not prohibit Canadians from engaging in non- infringing activities.” The private copying levy, which the Conservatives promised to abolish in their 2005 policy declaration, was also featured as the coalition urges the government to “ seriously question the continued existence of the private copying regime."
Business is unsurprisingly interested in facilitating innovation. Its plan calls for greater flexibility in the law’s fair dealing provision, which it believes will spur new business models and remove the legal uncertainty associated with common consumer activities such as recording television shows.
Several of the coalition’s other issues serve as an important reminder that matching copyright laws in other countries involves far more than ratcheting up the level of protection. It notes that while most other developed countries grant broadcasters certain copyright exceptions and ensure that Internet service providers face no liability when acting as intermediaries, Canada has thus far neglected to address these issues.
Consistent with the recent emphasis on more effective intellectual property enforcement, the BCBC also urges the government to ensure that there are appropriate penalties for commercial scale copyright infringement.
However, in a clear reference to the file- sharing lawsuits in the United States that raise the prospect of multi- million dollar liability for individuals, it argued that “ courts should have more flexibility to limit damages in circumstances where there is only minimal harm to rights holders resulting from the conduct.”
The emergence of a major business coalition is noteworthy not only for a broad array of participants ( every Canadian region is represented including Eastlink from Atlantic Canada, Cogeco Cable from Quebec, as well as MTS Allstream and SaskTel from the West), but also for the remarkable consistency between its policy position and those of other key stakeholders such as the education community and consumer groups.
In fact, it appears that business, education, consumer, and many creator groups are moving toward a consensus around Canadian copyright policies that would meet the requirements of the World Intellectual Property Organization’s Internet treaties, preserve consumer rights over their personal property, and provide Internet and technology companies with a legal framework that fosters greater innovation.
Members of the BCBC indicated that given the lack of government consultation, they felt that there was a need to develop a common public position. Combined with the outcry from thousands of Canadians, the government may have heard enough as rumours swirled late last week that it has again decided to hold off introducing the copyright bill. The Canadian business, consumer, and education communities undoubtedly hope that Prentice uses this latest delay to consult more broadly in order to build support for a made- in- Canada copyright solution.
Michael Geist holds the Canada Research Chair in Internet and E- commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@ uottawa. ca
