I appeared before the Bill C-32 legislative committee as part of a hearing that addressed a wide range of issues including digital locks, fair dealing, and statutory damages. I’ll post the full transcript once available, but in the meantime, the video can be streamed from the Parliamentary site and my opening statement can be found below.

Appearance before the Bill C-32 Legislative Committee, December 1, 2010

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa. As many of you know, I have been very active on copyright policy issues for many years. In 2007, I launched the Fair Copyright for Canada Facebook group that grew to over 92,000 members with local chapters across the country. Earlier this year, I edited From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda, the largest academic study on Bill C-32 to-date, with peer reviewed contributions from 20 leading Canadian experts.

That said, I appear before this committee today in a personal capacity representing only my own views.

While I am sometimes characterized as a copyright critic, the reality is that I am supportive of much of Bill C-32. When the bill was first tabled, I described it as flawed but fixable, with strong support for many of the compromises found in the legislation. That remains my view and I’m happy to talk about any aspect of the bill but want to focus my opening remarks on two issues, fair dealing and digital locks.

Fair Dealing

Bill C-32’s fair dealing reforms represent an attempt to strike a balance between those seeking a flexible fair dealing provision and those opposed to new exception categories altogether. I think the C-32 compromise is a good one.

With full-page advertisements and regular op-eds, we are all aware that some groups claim that these changes will harm Canadian culture. I’d like to point to two reasons why the reality is far less worrisome and offer a potential amendment to alleviate ongoing concerns.

First, fair dealing in education is not new. Fair dealing already encompasses research, private study, news reporting, criticism, and review. As you can well imagine, these categories cover a considerable amount of copying on Canadian campuses. These latest reforms are not revolutionary, but evolutionary, reforms that will help enable the use of new technologies in the classroom and support student creativity, innovation, and curiosity in their scholarly pursuits.

Second, Canadian fair dealing analysis involves a two-part test. Part one is whether the use (or dealing) qualify for one of the fair dealing exceptions. Part two is, where it does qualify, is analysis of whether the use itself fair.

The extension of fair dealing to education only affects the first part of the test. In other words, while Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair. The Supreme Court of Canada has identified six non-exhaustive factors to assist a court’s fairness inquiry and the Federal Court of Appeal, in a case involving educational copying, confirmed this summer that the C-32 changes will still require a fairness analysis.

While I think the concerns are misplaced, but there is the potential to provide greater certainty to alleviate writer and publisher fears.

This can be accomplished by codifying the six-part fairness test within the Copyright Act. This reform would ensure that judges would be required to assess the fairness of any use, including education, before it was treated as fair dealing. It would also put to rest claims that fair dealing would lead to a free-for-all. Quite the opposite is true, by design, the reforms would ensure that fair dealing is fair for all.



Digital Locks

The digital lock rules have been among the most discussed â€“ and criticized – aspects of Bill C-32. I should clarify that much of the concern does not come from digital locks per se. Companies are free to use them if they so choose. Moreover, there is general agreement that there should be some legal protection for digital locks since it is a requirement of the WIPO Internet treaties.

Rather, the concern stems from C-32’s unbalanced position on digital locks in which the digital lock trumps virtually all other rights, as the committee heard last week from Mr. Blais in the context of education. This distorts the copyright balance not only for the existing exceptions in the Copyright Act, but also for the new consumer rights, all of which can be trumped by a digital lock at a time when locks are widely found on devices, DVDs, e-books, and more.

The most obvious solution would be to amend the bill by clarifying that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright. This approach, which has been adopted by trading partners such as New Zealand and Switzerland, would ensure that the law could be used to target clear cases of commercial piracy but that individual consumer and user rights are preserved.

I’d like to expand on this proposal with five points. First, this approach is compliant with the WIPO Internet treaties, which offer considerable flexibility in their implementation. There are competing opinions on the issue, but no shortage of scholarly analysis and country implementations that confirm this is an option open to Canada. In fact, we need look no further than Canada’s own Bill C-60 to recognize that Canadian officials determined that this approach was consistent with the treaties.

Second, the claim that 13 years after the treaty Canada should adopt a U.S. style approach runs contrary to the emerging international record. With the benefit of experience, the clear trend is toward greater flexibility as even the U.S. has added exceptions for jailbreaking phones and unlocking DVDs for some non-commercial purposes.

Third, this approach is entirely consistent with the goals of Bill C-32. It enables us to target commercial infringers who are profiting from their actions since their circumventions would still constitute violations of the law. Meanwhile, it provides business with legal protection for locks some say they need and maintains consumer fairness by assuring Canadians that their personal property rights will be respected.

Fourth, it is worth emphasizing that amending the new consumer exceptions alone is not enough. For example, even if the lock provision on format shifting were removed, consumers would still face the general anti-circumvention restrictions. Both must be amended in order to preserve the digital copyright balance.

Fifth, in the event that the committee instead considers specific new exceptions and reforms to the digital lock rules, I have provided the committee clerk with a full list of proposed reforms, many of which are based on rules found in other countries.

I welcome your questions.