From the desk of Lizzy:
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With the proliferation of communication technologies such as the Internet as well as the digitization of media, copyright policy has been reinvigorated. Recently it has become an area of large-scale reform. Starting with the United States’ Digital Millennium Copyright Act, many nations have put forth reformation policies in a similar vein. This led to a number of discussions both in legislatures around the world and on the ground level, where individuals began to debate what rights businesses, content creators, and consumers are given with copyright reform. All three of these groups have different demands and all three have different needs from a copyright bill. Because of the plethora of demands, governments were expected to strike a balance between all of these interests. Canada in this way is no different. In 2005 the Canadian government introduced bill C-60 and began a long grueling process of copyright reform. This eventually culminated in the passing of Bill C-11 in 2012, Canada’s most recent act to amend copyright. This bill featured a number of interesting changes to Canadian copyright. It incorporated some of the reform actions undertaken by other nations as well as compliance to international treaties. It also looked to some of the provisions that individual consumers wanted. The resulting bill was perceived as balanced; some of the needs of consumers and some of the needs of business were incorporated, with compromise of course from both sides. Because of this we can see this bill as a case study of copyright reform, and for this reason it should be studied comparatively against other copyright reforms. The purpose of this paper is to analyze Canada’s recent reform to copyright, looking at the external influences on bill C-1l and comparing these responses against the copyright policies of other nations.
As the primary goal of this research is to assess the external pressure placed on the federal government during the legislative process of bill C-11, two types of theory will be utilized: policy convergence, and issue framing. The first set of theories, policy convergence, is an extension of globalization theory with an emphasis on notions of policy sharing. Looking at globalization theory we can see two major theses appear. Grace Skogstad identifies these as a strong and weaker thesis to globalization, the former being that states are in direct competition and thus macro-economic policy will suffer, and the latter being that states, if they so choose, can resist this drive to laissez faire regulation.(1) Both of these thesis influence policy convergence literature, however the stronger thesis is often found in Race to the Bottom (RTB) theory while the weaker globalization thesis is associated more with liberal theories. The framework for this comparison of copyright law will be premised on the weaker globalization thesis, as it allows for some flexibility and explanation of elements resistant to external influence. Thus, we will be primarily utilizing neoliberal institutionalism convergence theory as our framework for understanding policy. Compared to other convergence theories like RTB theory, neoliberal institutionalism regards the individual nation state as a very important actor in the outcome of international policy. As Drezner notes, neoliberal institutionalism would be inclined to say that even if a nation state were to increase regulation or tax, corporations would still have incentive to do business in the nation state as there would still be a good deal of profit.(2) So while there may be external pressure to conform to a lowest-common-denominator of economic policy or regulations, as RTB theory would assume, neoliberal institutionalism would suggest that a state could resist these pressures and businesses would continue to deal with the state regardless, or rather that there would be no real loss of competitiveness. Given this difference, the theory of neoliberal institutionalism is much more concerned with the positive and neutral aspects of policy convergence. Neoliberal Institutionalists see that policy convergence is the effect of cooperation between Nation States, which is more likely to occur on a regional or global basis, provided there are regional or global institutions to facilitate policy coordination.(3) This is especially applicable in the case of bill C-11. As Canada is both a signee of the World Intellectual Property Organization (WIPO) and the Anti-Counterfeiting Trade Agreement (ACTA), neoliberal institutionalism serves as an excellent theoretical lens to discuss the effect on which these international institutions have affected Canadian copyright reform.
However, neoliberal institutional theory only gives us an institutional perspective on the issue of copyright and thus framing theory will be also be utilized to explain some of the conversational aspects of policy convergence. Issue framing itself is deeply tied to discursive politics, theories which discuss the nature of the discourse found in the policy making process. Luc Juillet states that policy problems do not emerge as fact; rather their nature is constructed through the arguments of the actors and other rhetorical devices.(4) In policy, there is often not an indisputable truth, rather everything is up for debate and individual actors contribute and attempt to manipulate the ideas and notions around the debate in order to have their stance acted upon. This is where framing comes in. As the complexity of every policy area is not often understood by the legislators as well as the general public, an actor can weave a facts, beliefs, and values into a narrative in order to reduce the complexity of the problem and ascribe meaning.(5) The purpose of frames then is to give an issue new meaning and value to individuals who would otherwise not care or understand the implications of the prospective policy. Framing and reframing can be used to great effect in the legislative process. Campbell notes that framing was used extensively throughout the 80s to explain globalization and shift towards neoliberal economics and similarly the notion of the welfare state was reframed along racial lines in order to pass legislation that would reform and cut back on the welfare system.(6) Rather than both issues being seen as an attack on “new deal” economics, both were seen as necessary and important due to the frames being utilized. In the context of copyright we also see framing present and thus framing will become important in explaining some of the discourse found in international copyright treaties as well as some of the provisions found in bill C-11.
Moving from the discussion of theoretical approach, the first area that will be discussed in the context of Canadian copyright reform will be the Anti-Counterfeiting Trade Agreement. This agreement was a large multi-lateral agreement between many developed nations pushing towards a stringent and universal intellectual property law. ACTA sets a major precedence in international treaties as it builds greatly on former treaties, however it also increases the strength of intellectual property law as well as securitizes some of the reaction to counterfeiting and piracy.(7) The strength of this agreement to enforce copyright was to many nations a positive takeaway from the agreement and the primary reason to become signees. There were many excellent reasons to co-operate internationally on unified treaty laws, however it was the way ACTA was handled that caused such a large reaction and had such a large affect on the Canadian reform debate. The largest sleight against ACTA was the secrecy in which it was conducted. Michael Geist notes that the initial talks took place in unknown locations with the participating nations giving nothing but similarly cryptic press releases and thus it was unknown whether or not ACTA would incorporate public review and public say in the legislative process.(8) As the case with several international treaties there was a democratic deficit however, this was much more prominent as many nations’ representatives were returning to their constituencies with tight lips; overall there was very little transparency. This did not necessarily bode well for Canadian copyright reform in general, there was a great deal of pressure already to conform to the international treaty and the lack of transparency regarding this bill compounded this matter. However, there were a few major profile information leaks that gave informed voters insight into this bill. In early 2010 there were two major leaks that resulted in much more transparency and after the New Zealand round of talks a draft of ACTA was released.(9) To become more transparent at the international level ACTA had to be forced open through leaks and through persistent questions from the population.
So what did this leak entail? What provisions did ACTA wish to implement? Compared to previous international treaties, ACTA is much more stringent on both piracy of intellectual property and trademark law and also works on a system of information sharing attempting to easier penalize individuals and corporations engaging in these practices.(10) The bill builds on both TRIPS and the previous World Intellectual Property Organization (WIPO) treaties, however it deals far more stringently with the universal criminalization of individuals who would engage in piracy and counterfeiting. Apart from criminalization, there is also a focus in ACTA on preventative measures as well as other penalization apart from simply monetary. One of the most controversial aspects of ACTA was the three strikes rule which has been included and removed from the legislation but may end up being mandated.(11) The three strikes rule would see the introduction of a rule where an individual’s Internet privileges would be taken away if they accrue three copyright claims against them. ACTA’s provisions and some of these enforcement measures have garnered a great deal of criticism. There are questions as to how effective ACTA will be in creating international copyright law, as well as the nature for ACTA to exist as it seems to cover blanket copyright infringement and not specific cases where international co-operation may be appropriate.(12) Many of the issues covered by ACTA are issues that could be handled internally by many nations and thus, the extreme focus of ACTA on criminality measures may be unwarranted. While there are a number of criticisms though, the notion of international cooperation on copyright policy was important to the federal government. This cooperation however marks an interesting change in international policy sharing as this area of law is often not the focus of international collusion and thus may speak to larger movement towards more international policy agreement.
Apart from ACTA, other reforms were taking place that had an affect on the outcome of bill C-11. Several other regions were undergoing critical copyright reforms during the early 2000s such as the EU and China. The European approach to copyright reform, put forth similar reforms to those that Canada were pushing forward. One of their major policy directives put forth was the implementation of contentious digital rights management, and technological protective measures that went far beyond the needs of international treaties and WIPO.(13) This marked one of the first reforms that wished to include protection for digital locks as well as programs that would ensure that a user had ownership rights to software. The effects of digital locks provisions are interesting, especially when considering other types of copyright and intellectual property legislation. For instance, these locks may not only have effects on the criminalization of consumer piracy, they also have a large affect on first sale and fair use provisions that protect the rights of certain consumers.(14) In most cases digital rights management (DRM) law has been seen to supersede the protection of consumer rights such as fair use and fair dealing and since the EU has been one of the first jurisdictions to implement such DRM laws. This has particular implications for the future of balanced copyright. Increased provisions have allowed for these technological protection measures and have altered the balance of copyright much more firmly in the favor of content owners and copyright holders.(15) Power has shifted largely from the consumer and user rights towards that of the large corporate concern, which could perhaps be seen as a misstep in the digital age. If users can take solace in one thing, it is that these laws are incredibly difficult to monitor and regulate. The rules and exceptions regarding technological protection measures and digital rights management have not been implemented satisfactory, which has caused disharmonization in the process of implementation.(16) As Canada looked to implement similar digital lock protections with earlier bills, this might not necessarily bode well in the case of C-11. Apart from digital locks, there were other large reforms taking place that affected the international copyright policy. China’s recent entry into the WTO has pushed Chinese IP reform forward, step by step as the WTO talks continue.(17) China’s reform to copyright may have a large effect on the international discourse, as a great number of the counterfeiting and intellectual property crimes are associated with Chinese manufacturers. However, there is still reluctance for China to participate fully in the international copyright reforms taking place. China and India have both voiced concerns about the nature of ACTA, and other pushes for international copyright reform, as the provisions seem to have a direct effect on their sovereignty and these agreements may interfere with national and international law that is already in place.(18) Here copyright reform is being reframed as an attack to the sovereignty of developing nations, asking them to comply with western notions of copyright and disregarding their own attempts to reform or develop intellectual property laws. This shows a bit of a divide on the perceived value of policy sharing at an international level with several nations being skeptical of the way copyright framed and securitized through treaties such as ACTA. As Canada began copyright reform, they were face with similar criticism from content creators and consumers who feared some of the draconian provisions.
To return more closely to copyright law, international law regarding fair dealing and fair use should be assessed. These particular laws tend to act as balance against the ever-increasing demands of businesses, copyright holders, and content creators. One of the large issues with Canadian copyright before reform was the lack of substantive fair dealing law that would define the contexts in which copyrights did not apply and allow for flexible use of these materials by consumers, for the purposes of criticism or by educators. D’Agostino notes that while Canada had fair dealing provisions they were very limited in scope and until the case of CCH vs. Law Society of Upper Canada, there was very little discussion of the notion of consumer rights.(19) This legal decision opened up fair dealings to broader interpretation and also established the term in the legal precedent building up to full copyright reform. It also changed the notion in Canada surrounding the use of copyright material for purposes in which no profit would be made. The text was interpreted in such a way that placed the responsibility on the user to balance between their needs and the rights of the copyright holder.(20) A user could interpret this to mean that copyright material could be used in the case where there was no profit to be gained and the copyright material was being used as an example for satirical purposes. However, this court case may have opened some of the definitions for interpretation but it did not do enough to define the purposes that fair dealings could be applied to reliably. Thus, the nature of this case was a positive push towards fair dealings, however it needed to be reformed.
To accomplish this, some of the international fair use and fair dealing laws should be assessed. The US example of fair use is hailed as quite flexible compared to the Canadian and UK versions. US fair use law for example takes into account the use of copyright material for parody or remix due to cases such as Sony Corporation of America versus Universal City Studios.(21) Given the ambiguous nature of the CCH case, US copyright has also had several high profile cases that defined their fair use exceptions however the US examples are often much more pointed at particular uses and exceptions for the users of copyright material. There are also a few extraordinary cases in which Fair Use can be applied in the United States. In the Basic Books case, the use of copyright material could be justified due to the fact that Kinko was exercising monopolistic practices.(22) If a copyright holder is abusing their copyright and attempting to establish a monopoly or deny individuals use of a copyrighted material, US fair use law states that users are free to acquire and use these materials at the behest of the copyright holders. Moving on to the European and UK example of fair dealing laws, we see a stark contrast between. One of the issues with the UK example of fair dealing is that it is largely up to the defendant to prove that their use should be protected. To be protected under criticism or review in the UK requires that the work be previously available, that it be considered fair, and that it has significant acknowledgement of its source.(23) The onus in this case is on the user to prove, within a shadow of a doubt, that they are not undermining the rights of content creators and copyright holders. Compared to the US example, this is much less flexible to the user and a stricter interpretation of fair use. This leads to a hierarchy of factors that will fail fair dealing claims outright if there is any sense that they might be true. These three are whether or not there was a market substitute to the dealing, whether or not the work was available prior to the dealing, and the last is the consideration of the work taken itself.(24) The first two factors in this case are very important to the case of fair dealing; if the market for the original copyright material was impacted fair dealing may not apply. Furthermore if the original material were not available prior to the release of any following work, whether it is in the form of satire, criticism, or review, this is not considered fair use. From the example of UK fair dealing and US fair use, we see a slight contrast. Given the semi-ambiguous nature of Canadian fair dealing, copyright reform may adopt either one of these particular examples, with many consumers hoping to see the adoption of US fair use provisions rather than the fair dealing laws of the UK.
Several international policy areas have been outlined and thus we can finally turn to bill C-11 and see how it compares against the international reforms discussed above. The first area to discuss is Bill C-11’s reaction to ACTA and the implementation of provisions found in this trade agreement. Between 2007 and 2010, Canada became one of only a few nations to sign and ratify ACTA, and thus any change to Canadian copyright law would have to be compliant with this trade agreement.(25) This raised some concerns about how C-11 would emerge, given the non-democratic nature in which ACTA was conducted as well as some of the reforms already taking place in Canada. Individuals were concerned that the ACTA compliancy would bring along with it a notice-and-takedown system similar to the DMCA that would conflict with Canada’s notice-and-notice system.(26) This system would require a reformation of certain practices already apparent in Canadian law as well as place much more strain on Canadian Internet Service Providers. When C-11 was first read, it did not contain any instance of a notice-and-takedown regime, nor did it contain many of the harsher elements of ACTA such as the three strikes rule.(27) Thus, Canada was able to ensure ACTA compliancy while resisting some of the more restrictive measures that were part of the trade agreement. Despite this limited success, some of the more draconian measures found in ACTA as well as in other reforms, such as the EU example, were passed into Canadian law. The protection for digital locks and digital rights management software, were present in the end result of bill C-11. Under section 41.1 of the act, it is prohibited to circumvent any technological protection measures of copyrighted material, even if said material were acquired legally however, there are also included some exceptions that allow circumvention of TPMs.(28) The introduction of this section into Canadian Copyright gives much more power to copyright holders as TPMs and DRM could be included with a diverse range of media and there are very few allowable exceptions to circumventing this type of software. Lastly, C-11 also marked a change in the nature of Canadian fair dealing laws. There were several interesting changes to Canadian fair dealing laws in bill C-11, some of which look similar to America’s fair use with further expansion on fair use. Section 29.21 creates new fair dealing protections for the creation of a new work in a non-commercial context that uses prior publicly available work.(29) This so called mash-up or remix exception, would provide new legal protection for individuals wishing to create new content by using old content. This would provide protections similar to the Sony vs. Universal ruling found in US fair use law. The changes to fair dealing also introduce a number of provisions that would allow for format shifting and time shifting of owned copyright material, giving protection for consumers who wish to copy music and movies for non-commercial and personal uses.(30) Compared to other jurisdictions, the Canadian interpretation of fair dealing has become much more user-centric than both the US and UK examples looked at previously. Thus Bill C-11 incorporates many of the copyright reforms taking place internationally but modifies or enacts them in such a way that ensures balance between copyright holders and consumers.
Canada’s reform to copyright bill, C-11, demonstrates external policy influence and a keen understanding of both the positive and negative aspects of prior international copyright reform. It is evident that through both policy convergence and framing, copyright has been situated a number of ways internationally. ACTA, for instance, demonstrates a neoliberal understanding of policy convergence as many nations were dedicated to an agreement based on policy sharing and international co-operation. Moving from this, several nations attempted their own particular reforms such as the European Union with their own ACTA-compliant, technological protective measures provisions. Similarly, nations also engaged in revisions to their understanding of fair dealing/fair use law, expanding the rights of users to engage in use of copyrighted materials in a non-commercial nature. In terms of bill C-11 itself, we see that it has met ACTA compliancy without being too restrictive and introducing some of the more draconian aspects of the agreement. We do see the introduction of a digital-locks provision, penalizing the circumvention of TPMs, however there are a few exceptions and allowances in this regard. Lastly, fair dealing has been expanded upon in Canada and is far less restrictive than the UK legal framework upon which it is based. Though, C-11 is not perfect to consumers, it is greatly improved over its previous incarnations and allows for a much more flexible copyright regime, made in Canada, influenced by external pressures and the lessons learned from previous attempts.
(1) - Grace Skogstad, “Globalization and Public Policy: Situating Canadian Analyses,” Canadian Journal of Political Science 33, no. 4 (2000): 813.
(2) - Daniel Drezner, “Globalization and Policy Convergence,” International Studies Review 3, no. 1 (2001): 60.
(3) - Ibid.
(4) - Luc Juillet, “Framing Environmental Policy,” in Critical Policy Studies, ed. Michael Orsini and Miriam Smith (Vancouver: UBC Press, 2007), 259.
(5) - Ibid.
(6) - John Campbell, “Ideas, Politics, and Public Policy,” Annual Review of Sociology 28 (2002): 26 - 27.
(7) - Miriam Bitton, “Rethinking the Anti-Counterfeiting Trade Agreement’s Criminal Copyright Enforcement Measures,” The Journal of Criminal Law and Criminology 102, no. 1 (2012): 68.
(8) - Michael Geist, “The Trouble with the Anti-Counterfeiting Trade Agreement (ACTA),” SAIS Review 30, no. 2 (2010): 138.
(9) - Ibid., 138 - 139.
(10) - Bitton, 108 - 109.
(11) - Michael Geist, “ACTA’s State of Play,” American Universities International Law Review 26, no. 3 (2011): 548 - 549.
(12) - Bitton, 110.
(13) - Matthias Leistner, “Copyright Law in the EU: Status Quo, Recent Case Law, and Policy Perspectives,” Common Market Law Review 46 (2009): 848 - 849.
(14) - Richard Jones, “Intellectual Property Reform for the Internet Generation: An Accident Waiting to Happen,” European Journal of Law and Technology 1, no. 2 (2010): 7.
(15) - Ibid.
(16) - Leistner, 852 - 853.
(17) - George Hodorogea, “The Advent of Digital Technologies and International Property Law,” Contemporary Readings in Law and Social Justice 1, no. 1 (2009): 177.
(18) - Geist, “The Trouble with the Anti-Counterfeiting Trade Agreement (ACTA),” 143.
(19) - Giuseppina D’Agostino, “Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use,” McGill Law Journal 53 (2008): 315
(20) - Dara Lithwick, and Maxime-Olivier Thibodeau, “Bill C-11: An Act to amend the Copyright Act,” Library of Parliament Publication no. 41-1-C11-E (2012): 3.
(21) - D’Agostino, 345.
(22) - Ibid., 349 - 350.
(23) - Ibid., 339.
(24) - Ibid., 344.
(25) - Lithwick and Thibodeau, 6.
(26) - Geist, “ACTA’s State of Play,” 556.
(27) - Lithwick and Thibodeau, 27.
(28) - Ibid., 18.
(29) - Ibid., 12.
(30) - Ibid.