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Publishing at the polls: Copyright reform

As Canadians head to the polls on May 2, Q&Q looks at key federal policies affecting the publishing industry. Stay tuned for upcoming features on federal funding, mass digitization, and foreign-ownership regulations.

After nearly a year of parliamentary hearings and heavy industry lobbying, Bill C-32, the Copyright Modernization Act, succumbed to a sudden death on March 26, when the latest Canadian federal election was called.

For nearly a decade, publishers, authors, and other content creators have lived without a copyright act that takes into account the realities of a digital economy. Bill C-32 was the federal government’s third attempt to update the legislation. To get a sense of how outdated Canada’s current laws are, the last copyright reform, passed in 1997, instituted a levy on cassette tapes. It will now be up to the new government to table yet another copyright bill ” and successfully get it passed for there to be meaningful reform.

As Canadians head to the polls once again on May 2, Q&Q spoke to several publishing copyright advocates about the lessons learned from Bill C-32.

In December, after the second reading of the copyright amendment bill was passed in the House of Commons, a parliamentary committee ” comprised of seven Conservative members of parliament, three Liberal, two Bloc Quebecois, and one NDP ” began studying the bill in greater detail. Amid Conservative accusations of partisanship, the opposition brought in industry experts (including Margaret Atwood) who identified major flaws with the legislation.

Roanie Levy, general counsel and director of policy and external affairs for Access Copyright, says she hopes whomever is voted into office will closely examine the negative reaction Bill C-32 received after it was tabled. Access Copyright’s biggest concern was the vague language written into several of the bill’s key provisions, which were also formally opposed by the Quebec and Canada bar associations.

I believe it was drafted purposely that way so that they can adapt and modify to the changing and new technologies and uses that consumers are making of content, says Levy, who suggests that tightening up the bill’s language would be a step in the right direction. What happens when you’re drafting something so vaguely is that you invite a lot of litigation. And that is not a desirable outcome for anyone.

Bill C-32’s most contentious point was its fair dealing provision, specifically the proposed educational exemption.

A joint statement supported by over 90 cultural organizations estimated the revenue at risk from the exception to be $41.4 million. Access Copyright alone collects roughly $28 million annually from the educational sector.

That really galvanized writers’ groups, says The Writers’ Union of Canada chair Alan Cumyn. It puts a big hole in copyright and affects writers’ incomes and potential incomes.

To draw attention to the issue, TWUC produced its first advocacy video, which Cumyn says was hotly debated.

Another concern for Cumyn is the so-called mash“ups provision that would have allowed copyrighted material to be included in user-generated content for non-commercial purposes. We don’t know how it would work in practice, and we don’t know if it would lead to widespread abuse of people’s works and creations for other means.

TWUC also identified Bill C-32’s provision for inter-library digital loans as a potential financial risk for copyright holders. We felt that also leaves a hole for possible indiscriminate lending of works that could undermine the market for books in libraries, says Cumyn.

Although creators believe Bill C-32 had its flaws, no one Q&Q spoke to thinks the parliamentary committee’s work over the past four months should be tossed out, and all agree on the urgent need for reform.

I hope [the new government] moves at speed, because this really needs to be prioritized, says author and copyright advocate John Degen. There are all sorts of copyright-dependent industries waiting to move forward, to develop new business models and plans, and to test out new technologies ” but we can’t because we’re stuck. It’s hard enough to invest in a publishing company with the minimal profit returns ¦ without worrying about piracy or alienating readers by looking like a hardliner on copyright.

There also appears to be a consensus that, despite differences of opinion with some members of the Bill C-32 parliamentary committee, the vast majority of MPs diligently and seriously studied the issues.

Any one of the parties could put through a progressive copyright act as long as they took into account all the past testimony and approached it in a way that clearly said, ˜Bill C-32 had some significant flaws, let’s correct those before we move into whatever the next legislation is,’ says Degen.

Perhaps the most critical lesson to be learned from Bill C-32’s failure is timing. Cumyn stresses the importance of early buy-in and consultation prior to drafting a new bill, rather than after it is tabled. Once it gets to the parliamentary committee stage, it becomes part of a public circus, he says. It’s very difficult to talk constructively, because it’s part of a public performance.