[Image] Copyright Reform in Canada: Domestic Cultural Policy Objectives and the Challenge of Technological Convergence Gordon A. Gow Communication Studies, University of Calgary December, 1995 --------------------------------------------------------------------------- Contents Introduction Background to Copyright Reform in Canada Copyright: Challenges in Convergence IHAC and Phase 2 of Copyright Reform Evaluation Works Cited Footnotes Other Sites of Interest --------------------------------------------------------------------------- Canada's Copyright Act, unchanged since 1921, has been overtaken by new technologies. This has created ambiguities and uncertainties and has, in some cases, left Canadian copyright owners with less protection or compensation than would be available to them in other countries which have more modern copyright laws.-Hon. Michael Wilson, Minister of Finance (1984) . 1. INTRODUCTION 1.1 Current state of copyright reform in Canada Copyright reform in Canada awaits an uncertain future. Having passed the first of two phases of reform with the Copyright Amendment Act of 1988, the remainder of recommendations made in the 1985 A Charter of Rights for Creators -- a key document in the current round of reforms -- have yet to be tabled in the House. Phase I of reform addressed such issues as computer programs, moral rights, copyright collectives and changes to the Copyright Appeal Board (now the 'Copyright Board'), and remedies for infringement. Phase II reforms, those of a more difficult nature in terms of policy and legislation, were originally expected by 1991 (Vaver, 1990) but have yet to materialize. Once again, whispers of the implementation of Phase II reforms are being heard.1 In the meantime, however, the recent spate of attention concerning the emerging 'information highway' has potentially important and fundamental implications for copyright reform in general and Phase II considerations in particular. Linking copyright issues with development of the information highway is seen as a logical step in the future direction of Canadian communication policy. For instance, in the Communications Canada publication New Media... New Choices (1992), it is stated that A new media information policy is required, based on the existing legislative framework and programs. Together the Radiocommunication, Broadcasting and Copyright Acts and the Telecommunications Bill set the stage for new media information policy development. This framework ensures the orderly development of communications pathways and support for the creators of information and programming. [emph. added] (4) If copyright legislation is one of the fundamental starting points for 'the orderly development' of a successful information highway initiative, then it stands to reason that further processes of review should be placed within that framework and made a priority. Another document, published by Industry Canada in April 1994, also draws the issue of copyright reform onto the tarmac of the information highway: The new media environment is posing intellectual property questions that require review of the present copyright framework. This review would demonstrate whether the present framework can be marginally amended or whether it needs to be fundamentally transformed. (Industry Canada, 1994: 25) This review process of intellectual property vis-à-vis technological convergence is not particular to Canada, as a number of nations including the United States, Japan, and those of the European Commonwealth have also identified it as an important set of issues. What is particular to Canada, however, is the lagging reform process of copyright legislation. Both the United States and the UK (of which Canada's legislative framework is closely associated) have undertaken significant revision of their respective Acts, while Canada has yet to complete its original set of amendments to the 1924 Copyright Act. With the formation of the Information Highway Advisory Council in 1994, issues of new media and copyright were formally drawn into the fold by the Copyright SubCommittee of the Working Group on Canadian Content and Culture. A final report by the SubCommittee was presented in March 1995, and subsequently incorporated into IHAC's final report, The Challenge of the Information Highway, tabled in September of the same year. 1.2 Technological Convergence and Phase II Reforms With respect to outstanding issues of Phase II, several in particular fall within the domain of technological convergence: digitization and new forms of interconnectivity pose questions of new rights and new categories of works, and present problems for administrative policies, jurisdiction, and enforcement. Furthermore, balancing the rights of creators with those of users poses difficulties for the development of a 'marketplace of ideas' that ensures the adequacy of Canadian cultural policy objectives within an increasingly international exchange of information. Tensions in favour of creators and the protection of Canadian cultural sovereignty contrast with the rights of users and the unimpeded international information flows being negotiated within a number of multilateral trade agreements, including GATT and NAFTA. This paper will provide a brief background into issues of copyright reform in Canada, primarily focusing on the problems inherent in technological convergence. It will further examine the issues addressed and recommendations made by IHAC in light of Phase II reforms, arguing that the scope of the Copyright SubCommittee's mandate was insufficient for the necessary integration of Phase II reforms with issues of new media. Moreover, with respect to long term issues of intellectual property in general and copyright in particular, the IHAC report has failed to adequately address the need for an 'orderly development of communications pathways' as noted in the 1992 Communications Canada document, perpetuating what may turn out to be an age-old Canadian policy problem of establishing communications infrastructure at the expense of Canadian cultural objectives. return to top of document --------------------------------------------------------------------------- 2. BACKGROUND TO COPYRIGHT REFORM IN CANADA 2.1 The long road to Phase I Until 1988, copyright legislation in Canada was governed by the statute of 1924. After three decades of studies into the question of reform, A Charter of Rights for Creators (1985) became the official document that was to act as the basis for two sets of reforms: Phase I, which resulted in the Copyright Amendment Act of 1988, and Phase II which has yet to be tabled. Studies into copyright reform began with the Isley Commission of 1957 -- The Royal Commission on Patents, Copyright, Trademarks and Industrial Design. Out of Isley came an emphasis on balancing the rights of creators with those of users in an 'incentive versus access' policy framework that continues to the present. Although the recommendations made by Isley were never acted upon, it nonetheless influenced those studies that were to follow (Canada, 1985: 2). Two studies in the 1970s further examined the issue of copyright reform. The Economic Council of Canada's Report on Intellectual and Industrial Property (1971) was followed in 1977 by the Keyes and Brunet report, Copyright in Canada--Proposals for Revision of the Law. 'Unabashedly pro-creator and emphasiz[ing] the legal, rather than the economic, aspects of copyright,' Keyes and Brunet did not discount the international economic aspects of reforms found in the 1971 report (Canada, 1985: 3). During the early 1980s, the Department of Consumer and Corporate Affairs in conjunction with the Department of Communication commissioned a number of studies (14 in all) into various aspects of copyright reform, with a strong emphasis on economic considerations. These studies, published separately under the rubric of 'Copyright Revision Studies' between 1980-83, included such areas as 'fair dealing,' audio and video home-taping, competition and Canadian culture, collective agencies for copyright administration, and copyright and the computer. Finally in 1984, out of the Copyright Revision Studies, a White Paper on copyright reform was delivered to the government. From Gutenberg to Telidon was soon negated as 'official policy' due to a change in government but was quickly revived as the basis for a newly formed Copyright SubCommittee's study (started in January 1985 under the Standing Committee on Communications and Culture) that resulted in A Charter of Rights for Creators; formally accepted as government policy in February, 1986. In the Charter, the SubCommittee noted its agreement with the assertions made in From Gutenberg to Telidon, namely that the Copyright Act is seriously outdated, that copyright must continue to be regarded as private property, that revisions must respond to technological change and that new rights and subject matters are now essential. (Canada, 1985: 3). Clearly, or so it seemed, the government was well on its way to introducing some serious measures for the long overdue reform. Introduced into the House as Bill C-60 in May 1987, Phase I of copyright reform in Canada was finally granted royal assent with the Copyright Amendment Act [RSC 1985 (4th Supp), c.10] on June 8, 1988.2 A number of issues were addressed by Phase I, notably computer programs (formally recognized and defined as 'literary works'), moral rights (clarified and expanded, subject to waiver), administration (a new Copyright Board to oversee collection and administration of rights), and the revision of penalties for copyright infringement. Most of the more difficult areas in the Charter, such as definitions and categories of works, new rights, and 'fair dealing' were left for Phase II (see Vaver, 1990). Of note with regard to the difficult nature of Phase II is Vaver's observation that 'The introduction and progress of Bill C-60 [Phase I] through the legislature, and its eventual enactment, indicate that even modest copyright reform is a difficult process' [emph. added] (1988: 154). He suggests, further, that a draft bill of Phase II put into public circulation would better facilitate the review process than introducing a 'full-fledged' bill into the House, such as was done with C-60 (155). Vaver also criticizes Phase I for a lack of 'form,' contending that it appears as an ad hoc set of revisions intended to appease the industry and arts lobbies (148). In addition to its piece-meal construction, Vaver also notes its short-sightedness particularly with respect to making accommodations for Phase II reforms in areas such as 'fair dealing' and rights exemptions (149). 2.2 Historical and International Perspective The literary matrix of formal copyright is found with its origins in 18th century England, where the Statute of Queen Anne (1710) 'set the pattern for copyright statutes enacted the next two centuries in countries throughout the world' ('Copyright,' 1989: 416). Followed by the United States in 1790 and France in 1793, copyright legislation quickly became an international economic issue concerning territorial issues in the publishing trade. Indeed, as Bettig (1992) argues, the history of the development and origins of literary property 'demonstrates the essential function of copyright as economic right of capital' (149). By 1886 the first international multilateral agreement was drawn up as the Berne Convention. Significantly, the US was not a signatory to it until 1989. The Universal Copyright Convention (UCC)of 1952 brought the US into international copyright arrangements, though at a lower level than that afforded by Berne. The World Intellectual Property Organization (WIPO), responsible for the administration and activities of international intellectual property treaties, was created as the Stockholm Conference of 1967, and later -- in conjunction with UNESCO -- assigned to administer the UCC. Both the Paris and Berne Conventions of 1971 significantly raised the levels of international copyright. The TRIPS agreement administered by the World Trade Organization (WTO) also affects international intellectual property rights. Of note concerning 'intellectual property' is its broad scope. Patents, trademarks, and trade secrets are all included as intellectual property -- distinctions that are becoming more difficult to make because of recent technological developments. For instance, in considering the intellectual property rights for 'information intensive products,' such as those typical of convergence technology, one finds that they may in fact 'defy classification since they can be embodied in several different forms.' How does one assess a computer which can be seen to function upon a particular software code (potentially trade secret) which is the basis for a written application (copyright as a 'literary work'), in turn embedded on a chip and enabling a machine to perform a set of operations (typically patent)? (Reidenberg, 1988: 5) When the entire operation is necessarily linked through a nexus of specifically-encoded information, a clean categorization of legal domains becomes potentially difficult. Inasmuch as each domain also carries its own implications for rights and duration of rights, contending perspectives are bound to arise. Many of the problems of convergence and intellectual property reflect the particular difficulties for a notion of copyright rooted in the non-electronic realm of a literary matrix. return to top of document --------------------------------------------------------------------------- 3. COPYRIGHT: CHALLENGES IN CONVERGENCE 3.1 Digitization and tangibility Copyright is afforded not to ideas themselves but only to the expression of those ideas fixed in some medium of communication. In Canada, the requirements for securing copyright are 'originality' and 'fixation' (Wilson and Burpee, 1990: 2), fixation being a specific requirement that was reaffirmed in the 1985 Charter, a point which Vaver (1990) contends 'is more a product of the Gutenberg than the Telidon [digital] era...' (47). What makes fixation a potentially passé concept in the digital age is the ethereal nature information has taken on. As a WIPO document of 1993 (Dreier: 9) indicates, there are essentially two aspects that make digitization a revolutionary development in terms of intellectual property rights: first, binary code is universal medium that collapses the material distinctions between forms of creative works (music, text, and artwork can all be digitized and manipulated with computers); secondly, once digitized and downloaded into a computer, all works can become interactive in the sense that the user can modify them. In a very real sense, then, the literary matrix of copyright, based in a tangible object that effectively 'packaged' a set of ideas, has become problematic. The contours of a work fade as multimedia productions incorporate a wide range of digitized elements within a framework of interactivity that enables fundamental changes to those elements. As such, the work itself may change over time through a variety of applications and in a number of contexts. Does one then speak of a single work, or multiple works? How are the contours of rights drawn? Much information that is of value in the environment of technological convergence may also never become fixed in what is traditionally deemed to be a tangible 'hardcopy;' it may simply move between various computers, potentially blurring the notion of property transfer as the individual does not have to surrender a copy in order to transfer it to another (Miller and Blumenthal: 229). By digitizing works and placing them on a communication network, they also become widely accessible and easily reproducible, making the tracking and administration of copyright difficult. 'The Industrial Age framework for intellectual property adopts poorly to the flexible and intangible nature of today's information products' (Reidenberg, 1988: 6), particularly when widely available on electronic networks. Illustrative of the problematic nature of copyright reform vis-à-vis the intangibility of digital information is the US National Information Infrastructure (NII) report's consideration of 'fixation' (also a requirement in US law). It states that 'In digital form, a work is generally recorded (fixed) as a sequence of binary digits (zeros and ones) using media specific encoding.' According to this definition, once a work is transcribed into a digital format, it is deemed to be fixed. Via electronic communication networks, however, fixation 'may not be so clear,' as transmission is not considered an adequate form of fixation (notwithstanding it being a virtually instantaneous act achieved through binary code) (United States, 1995: 26). The reasoning behind transmission is linked to copyright precedent concerning live broadcasts, where simultaneous fixation is required for protection (ie., a recording is made). With electronic information, though, even transmission must reside -- at least momentarily -- in a computer's RAM. Oddly enough, the NII report finds RAM a sufficient form of fixation according to US legal precedent, where temporal duration is of less importance than the potential for reproduction when an electronic copy is in existence (however brief). This, it must be noted, appears after it is stated in the report that a work is not sufficiently fixed if 'purely evanescent or transient' in nature, such as occurs with displays on a CRT screen 'or captured momentarily in the "memory" of a computer' (28). While conforming with the 'transmission is not fixation' guideline, this statement certainly seems to contradict US legal precedent that deems RAM to be a sufficient form of fixation.3 In all, the NII report seems to indicate a large degree of confusion on what might otherwise be considered the rather simple matter of fixation. The point to be made here is that digitization makes the concept of 'fixation' problematic largely because it does away with the physical tangibility that copyright was originally founded upon. Also in terms of problematic areas concerning tangibility is the issue of 'display right,' which posits control over the output of computer software. For instance, in the case of formatted documents from a database application, to what degree is the appearance of that format protected by the copyright held in the software itself? (see: Eischen, 1991) If screen displays from a videogame ('purely evanescent and transient' in nature) are altered at the output stage -- at a point between the application and the CRT -- can the 'author' of the software seek remedy?4 'Display right' poses conceptual difficulties because it seeks to protect not the authored application as such, but the 'intangible' aspects produced by that application. 3.2 Issues of Control From the Isley Commission of 1957 to the present, the issue of balance between creators and users has been a recurring theme in Canadian discourse on copyright reform. Although 'balance' has likely never been an easy objective, it becomes increasingly difficult with digitization, and yet is seen as a necessary objective for the economic viability of the 'information highway.' The NII report notes that ... unless the framework for legitimate commerce is preserved and adequate protection for copyrighted works is ensured, the vast communications network will not reach its full potential as a true, global marketplace. (16) Canadian documents, particularly the Final Report of the Information Highway Advisory Council's (IHAC) Copyright SubCommittee (Canada, 1995b) and the IHAC report itself (Canada, 1995a), also subscribe to this 'marketplace of ideas' formulation. Take, for instance, IHAC statements concerning 'The New Marketplace' on the information highway: Canada's success on the Information Highway depends on whether we can establish a competitive framework that unleashes creativity, innovation and growth. (1995a: ix) [Copyright is] the essential lever to encourage creativity and ensure adequate compensation for creators ...[and is therefore] important to the realization of Canadian cultural sovereignty and national identity (35) For creators, adequate protection through copyright is viewed as an incentive to produce works for consumption, as piracy is curbed in exchange for fair remuneration. For users, reasonable access opens a competitive marketplace for information products, giving rise to economic growth and new sources of information and entertainment. Another issue of control sits not with economic rights but the moral rights of the creator. As interactivity makes for the relatively easy manipulation of digital works, authors may begin to become concerned over what users are up to. Moral rights exist in three general categories: integrity, paternity, and association. The right of integrity comes into play with the ability to 'morph' digital forms thereby making changes to an 'original.' Seemingly simple issues such as movie 'colorization' and even digital compression could potentially trigger action in this realm (NGL, 1994: 35). The right to paternity concerns the appropriate creditation of an author with his/her work, a right possibly overlooked or omitted in multimedia works or extractions delivered via electronic networks. Using an author's work in association with a product or service, cause or institution comprises the third category of moral rights. In that the use of works may become difficult to track, unauthorized associations may become a problematic issue. Over-enforcement of moral rights potentially limits the user's access to a work and undermines the interactivity of digitization (Japan, 1994: 18). Any attempts at balancing creators and users rights are contingent on the scope and powers granted to creators in terms of moral rights. Again, the issue of incentive versus reasonable access comes into play as well: if creators do not feel secure about their control over the use of a work, they may be less inclined to produce. Conversely, users will want to be able to utilize the interactivity of digitization to its full potential. Other issues of control focus upon reproduction, public performance, and authorship. As the intangibility of digitization makes the concept of fixation difficult, it in turn makes the concept of 'reproduction' elusive. At what point does digital information become reproduced? In RAM, once saved to hard/floppy disk, once displayed, or in light of the NII's confusion, could transmission itself be deemed reproduction? Public performance, a basis for an economic right of the author, is also thrown into question. With digital technology the concept of a 'public sphere' for consumption disappears as users are enabled direct access to a creator's electronic domain. 'Private' and 'Public' are confused categories when a work is retrieved directly by the individual (perhaps using a password entry) in their own domicile and at whatever time is convenient: 'Any attempt to still define the relevant public as a group of unrelated people using protected works either in the same 'public' place, or at least simultaneously in their respective homes, must necessarily fail to comprehend the problem [of digitization]' (Dreier 1993: 13). Authorship may be the most difficult issue of the three, particularly when drawing distinctions between contributors to a collaborative and interactive project, and when negotiating rights for extractions taken from sources on a vast electronic network. If increasing numbers of collaborators on, say, an open-ended electronic compilation all claim rights in that work, it stands to reason that with each new contributor the per capita income for each contributor will continue to shrink. Again, a situation that potentially sets up barriers to users, as creators may place limits on the interactivity of their works (Dreier, 1993: 17). Moreover, as a growing number of new works incorporate copyrighted material, how will this limit the user's ability to produce information products for themselves? If the contours of works are made unclear by digitization, then how are contributions credited? Is the value of a contribution to be defined in the number of bytes that comprise it? On the issue of 'fair dealing,' will it be possible for scholars and critics to use various commercial excerpts for articles in multimedia form?5 As the blurring of form and the ease of reproduction in the digital domain have made for a number of problems concerning the traditional concept of copyright, Rosen (1992) suggests that the principles of balance can only be served through an approach that distinguishes between 'general and specific ideas,' overcoming the limitations imposed by a notion of material fixation. In this approach, rights are drawn 'wherever it is most convenient' to best encourage a public exchange of ideas and ensure incentives for creativity. As ideas move from general to specific, they reflect (theoretically) a concomitant degree of labour invested. For Rosen, a general idea is one that is subject to a large degree of refinement and should thus remain in the public domain of discourse. A specific idea, conversely, has been well-developed and leaves little room for development and can thus be deemed proprietary (277). Unfortunately, even Rosen's conception is made problematic with interactivity, as the ideas within 'core' works conceivably move from specific to general as they are augmented by contributors and turned into common referents for other works. (Perhaps some kind of right based on a scale of diminishing returns could address this if an appropriate tracking mechanism could be developed). Further and more fundamentally, however, is the question of who is to determine what constitutes a 'specific' versus a 'general' idea and under what jurisdiction. In spite of its drawbacks, Rosen's idea is important in underscoring the problem of fixation, as the 'packaging' of ideas vanishes and a more dialogical form of information exchange arises from convergence. 3.3 Multilateral agreements and transborder data flows In addition to the problems created by digitization, convergence also includes an increasing level of interconnectivity between electronic forms of communication. As a consequence, a number of questions pertaining to jurisdiction, administration, and enforcement of copyright surface. The global nature of interconnectivity poses potential conflicts regarding the sovereignty of cyberspace, particularly when information can be moved remotely between many sites. 'The electronic network of computer networks [the internet],' to quote Branscomb (1991), 'is marked by versatility, complexity, diversity, and extraterritoriality. All these characteristics pose challenges to the laws that govern generating, organizing, transmitting and archiving information' (154). Concerning the matter of 'the sovereignty of cyberspace' as a self-governed domain, the NII report contends that suggestions to this effect 'are improper,' and that other forms of globally interconnected communication media (telephone, fax, satellite transmissions) 'have not been thought to be outside the jurisdiction of the nations from which or to which they are sent' (15). It might be possible to argue, however, that a kind of de facto cyberspace domain is being created through the harmonization of intellectual property laws to meet the demands of convergence. Electronic networks may in fact work to undermine certain aspects of national sovereignty through national treatment obligations for copyright. This trend toward harmonization, originally with Berne/UCC and increasingly with WIPO and GATT, is prompted in large measure by economic rationale. The international harmonization of intellectual property laws in general, including copyright, is a two-sided dilemma particularly in terms of the emerging 'marketplace of ideas.' On the one hand, where differences in legislation between countries makes for different (or non-existent) forms of protection, or make protection difficult to acquire, intellectual property laws can in effect become 'non-tariff barriers' to trade as creators refrain from issuing works to certain regions for fear of piracy (Hayhurst, 1994: 201). On the other hand, through national treatment obligations, domestic cultural policy objectives -- such as the support of infant industries -- may become untenable barriers to a free trade in information goods. Indeed, national treatment obligations could place limits on what might be deemed 'information tariffs' as a means of territorial divisibility within a protectionist strategy.6 In the Canadian context both the Free Trade and the North American Free Trade Agreements may be, excusing the expression, of considerable 'import.' The Free Trade Agreement (FTA) potentially affects copyright in terms of national treatment obligations for US-based data flows. Facilitating what Mosco (1990) terms a 'transnational information order' (56), FTA opens up free trade in 'enhanced' telecommunications services, while allowing US firms to enter into Canada with an electronic presence only (merely 'through the wire,' as it were) (52, 54). While 'enhanced' is left undefined in FTA, it nevertheless potentially interferes with Canadian cultural policy measures in the hands of the CRTC or other regulatory bodies. As large amounts of copyrighted material may begin to move through 'enhanced' telecommunication services supporting the information highway, provisions in FTA may in fact make national treatment obligations a barrier to Canadian protectionist measures concerned with foreign content and increased royalty outflow. It is, for example, already the case that, per Article 2006 of FTA, Canada has had to commence in the co-ordination of copyright and retransmission laws in order to ensure national treatment obligations are met (Comor, 1991: 257). The 'retransmission right' -- royalties paid for right to 're-broadcast' a signal over cable -- is certainly skewed in favour of US creators in light of the disproportionate amount of US television signals entering into Canadian markets. In many ways this right only serves to further decrease the levels of royalties distributed to Canadian creators. The North American Free Trade Agreement (NAFTA) establishes a similar regime to FTA, but provides a definition for 'enhanced' telecommunications services. Extremely broad in its wording, Article 1310 of NAFTA essentially labels all 'telecommunications services employing computer processing' that facilitates an interactive exchange as 'enhanced' services. Again, a problem arises if we consider the role that these 'enhanced' services may play in delivering content on emerging electronic networks (cross-border video-on-demand, for instance). In certain circumstances Canadian sovereignty vis-à-vis cultural policy may be severely affected, a view held by both Mosco (1990) and Comor (1991). Even with the 'cultural industries exemption' included in both the FTA and NAFTA agreements, intended to offer protectionist recourse on matters of domestic cultural policy, the 'notwithstanding clauses' in both agreements limit the practical deployment of protectionist measures in that they enable retaliatory measures from other commercial sectors in recompense. In the realm of international agreements, moreover, Canada is not free to adopt any cultural industries exemption impinging on national treatment obligations under Berne, 'despite anything in the FTA, NAFTA, or under GATT' (Hayhurst, 1994: 207). The 'sovereignty of cyberspace' may in fact be something of a verity as Canadian intellectual property rights, particularly with copyright, are dragged into the arena of international harmonization occurring with agreements such as GATT-TRIPS, which forced Canadian copyright legislation up to the 'highest levels' (in addition to modifying both the Berne and Paris copyright Conventions) (Hayhurst, 1994: 211). It appears, then, that Canadian sovereignty on domestic cultural policy matters may be seriously affected if careful steps are not taken to ensure that national treatment obligations do not preclude the regulator's right to govern information flows into (or, royalty flows out of) Canada. With convergence technology reshaping the international face of communication technology (viz., delivery via 'enhanced' telecommunications servers), it may become increasingly difficult to balance cultural policy with the economic forces being played-out in the global 'marketplace of ideas.' In a related manner, international agreements could affect creator/user issues in terms of territorial divisibility and the concept of 'fair dealing.' For instance, could national treatment obligations prevent territorial divisibility measures being taken up by creators in national markets? That is, with an open-border policy enforced by international copyright obligations over (say) 'enhanced' telecommunications services, it might become impossible to limit territorial distribution to a single 'edition' of a work. Substantially lower royalty rates for creators might then follow, as rampant competition between suppliers drives prices down. In terms of 'fair dealing,' differences between national laws may affect what constitutes 'fair dealing' in practice, or a 'substantial portion' of a work in electronic form. Problems could arise if certain nations have substantially more generous fair dealing provisions, thereby allowing varying degrees of access to works without requiring remuneration. A case might involve the transfer of information from a site in one country to a server in another country which allows a greater range of access under 'fair dealing' practices. Even between Canada and the US, where 'fair dealing/use' differ slightly in legislation, the contours of it as a legal defense are guided by case law, thereby making for the possibility of 'loop-holes' and inconsistencies between the two countries. return to top of document --------------------------------------------------------------------------- 4. IHAC AND PHASE II OF COPYRIGHT REFORM 4.1 A Charter of Rights for Creators, Phase II, and convergence. With Phase I reforms out of the way, the remaining recommendations in the 1985 Charter await implementation. In light of the foregoing discussion of copyright in the new context of digitization and technological convergence, it becomes important to examine how the decade-old Charter, as the basis for Phase II reforms, addresses issues pertaining to communication and information technology systems. As a basis for reform within the context of convergence, the Charter seems to set-out on an enlightened path: The computer age has placed copyright principles themselves in a radically new environment with unpredictable consequences. One of the biggest challenges facing the SubCommittee is to apply the principles of intellectual property to this new environment. For a new Copyright Act not to address these questions would be to guarantee a slow erosion of the very concept of intellectual property. (Canada, 1985: 39) A number of areas of the Charter do relate directly to technological convergence, most notably in the areas dealing with computers and copyright. These include fixation and reproduction, new rights, categories of works and rights therein, and public performance and issues of control and authorship. In terms of all media, fixation and reproduction can be considered correlates in the sense that the latter logically precedes the former. In other words, it seems reasonable that fixation be a pre-condition for reproduction to take place. In the digital realm, the Charter seeks to determine whether new rights should be accorded to that realm and what in fact constitutes a 'reproduction' with digital media. Oddly enough (or not), the SubCommittee seemed to have similar difficulties with 'fixation' as found in the NII. Calling for greater specification regarding a definition of 'fixation,' the Charter states that that 'volatile media,' or information 'not generally in a stable state,' is sufficient to qualify. In this regard, a new 'display right' was rejected in favour of a more tangible digitization right ('right to input' is the wording used in the Charter) to be created for digital information [recommendations 52, 53]. Where it begins to get confusing, as in NII, is with the characteristics of computer RAM. The Charter notes that 'the mere presence of a work in the central memory of a computer which would be lost if the power were turned off would not suffice' as fixation (41). This in spite of the fact that infringement can occur with data in RAM if it results in an unauthorized public display (42). 'Reproductions,' according to the Charter, must have 'a certain degree of permanence,' (42; [rec. 55]). Not only does this set of guidelines severely limit the range of copyright protection afforded in the digital domain, in ignoring the reality of RAM as a powerful intermediary stage in transmission and reproduction, it seems to contradict itself when it deems a public display from RAM as possibly affording a right to the creator. This assumes that the work is being held in a more permanent state other than the RAM of the unit involved in displaying the work; a condition not necessarily true in the event of live transmissions (where simultaneous 'fixation' must occur in order to secure copyright). Also recommended in the Charter was that computer programs be granted a sui generis right (a right unto itself) distinct from 'literary works' (44). Phase I seemed to overlook this point entirely in placing computer programs within that category, possibly following a US precedent in the matter. The Charter addresses the issue of retransmission rights, recommending that they be restricted to remuneration only [rec. 76d], and suggesting that in conjunction with establishing technology-neutral terms which would exempt common carriers and the distinction between hertzian waves and coaxial cable [rec. 99, 100, 101], a compulsory licensing scheme be established [rec. 102] with adjusted tariff levels corresponding to signal sources [rec. 105]. Technological neutrality seems reasonable in convergence, but the common carrier exemption would become problematic if it was deemed a violation of national treatment obligations in terms of retransmission rights for content delivery via 'enhanced' services. Adjusting tariff levels seems to be a potentially effective means of protecting Canadian service-providers (ie., lower retransmission tariffs for domestic providers), but may also cross the path of national treatment obligations set out in various international agreements. In terms of reconceiving 'public performance,' the Charter recognizes the new possibilities afforded by modern communication media, in asserting that a 'multiplicity of private performances' at different times and in different locales can qualify as a public performance (38). Curiously enough, this could conceivably introduce a retransmission right into services such as electronic bulletin board (BBS) operations where information is captured and re-routed for 'public performance,' much like the operation performed by cable-TV distributors. Another area touched upon by the Charter with respect to issues of convergence is in the realm of authorship. In one instance, using economic rationale based on a US model, the Charter recommends that crown copyright be dropped in order to allow for value-added versions of government documents to circulate [rec. 11].7 The second instance addresses electronic compilations such as databases. It is recommended that copyright in compilations be held in the particular versions created [rec. 57], so that copyright in the form taken by a collection of names in a telephone book, or URL sites in an internet search engine would rest with the creators of those collections. In the case of an internet search engine, which is typically compiled by an automated search program, determining the copyright holder(s) could become problematic. 4.2 Issues addressed by IHAC and the Copyright SubCommittee The Copyright SubCommittee struck by the Information Highway Advisory Council in 1994 was mandated 'To make recommendations on the ways in which copyright can be used to enhance the Information Highway to the benefit of all Canadians' (Canada, 1995b: 1). This mandate is consistent with the economic perspective being taken for development of the information highway -- 'the marketplace of ideas.' Unfortunately for copyright reform in Canada, however, the SubCommittee explicitly distanced itself from Phase II reforms, stating that 'it does not wish to re-visit issues being dealt with in Phase II' in spite of potential overlap. Moreover, 'a review of copyright principles' was also considered 'beyond the scope' of the SubCommittee's mandate (2). In light of the issues inherent in technological convergence, it is hard to conceive of how the SubCommittee could have expected to produce anything of substance without addressing Phase II reforms or at least some of the principles of copyright which become problematic with the digital interconnectivity of the information highway.8 Nevertheless, a number of issues are addressed and recommendations made in the Final Report of the SubCommittee. 'Use of works' dealt with such items as economic rights, 'browsing,' liability for infringement, moral rights, crown copyright, distribution rights, and fair dealing. Under 'administration' the report considered enforcement issues, user access, and rights clearance. Other issues addressed were public education concerning copyright, broadcasting policy and regulation in light of national treatment obligations, and international considerations. Recommendations made by the SubCommittee largely emphasized a leadership role for the federal government in facilitating administrative arrangements in technological, policy, and educational approaches to curbing infringement and in establishing rights clearance mechanisms. Issues of domestic cultural policy potentially affected by the FTA, NAFTA, and other international agreements were cast aside, with the report simply noting that 'Canada should bear in mind the need to ensure that future national treatment obligations [do] not impact unduly of the cultural objectives contained in the Broadcasting Act' (63). In other areas, the report rejected both a sui generis right for digital media and multimedia compilations, and the collapse of separate works into a single category, arguing that the present Act could 'sufficiently identify works produced and used in a digital environment' (60). In terms of 'reproduction' (with potential implications for 'fixation'), RAM is apparently sufficient to make 'browsing' and transmission both subject to copyright. It is recommended that BBS operators be made liable for infringements originating with their systems, 'since they are not common carriers.' (61). Besides making no mention of potential implications for retransmission rights in a BBS, the SubCommittee's recommendation in this case could be deemed equivalent to an attempt at making cable-TV operators liable for home-taping. Moral rights were reaffirmed within a narrow scope of integrity, without mention as to rights of paternity or association, or particular mechanisms for tracking the use of works. The report recommended Crown copyright be retained only for cost-recovery purposes. Fair dealing was deemed sufficient under the current Act, but warranted regular review (this runs contrary to Vaver's assertion that clearer guidelines are needed (1990: 62)). As translated into chapter three of IHAC's Final Report, 'Canadian Content and Culture,' the SubCommittee's report shrank to six sets of issues: categories of works (sufficient under current Act); 'browsing' (holding copyright, but requiring clearer definition); fair dealing (requiring clarification with respect to digital context); electronic BBS (owners liable for infringement occurring on their networks); and administrative and technical areas -- noted as 'presenting the greatest challenge,' yet IHAC essentially adopted a 'hands-off' policy of encouraging industry self-development in both cases. Government, as far as the IHAC report seems to be concerned, should restrict its role to one of 'assistance' and education for private sector development (Canada, 1995a: 35-39). Perhaps most significant between the two reports is an outright contradiction that is made. In spite of all that has gone on before it in terms of statements on the need for reform in light of convergence, both the SubCommittee and IHAC conclude that the present Copyright Act offers 'sufficient protection' and is 'sufficiently flexible' to enforce copyright on the information highway and provide reasonable access to users (38). The SubCommittee in its general recommendations, however, states the 'critical' need for reform and the urgency of introducing 'technology-neutral' amendments and Phase II reforms (4). return to top of document --------------------------------------------------------------------------- 5. EVALUATION The Canadian government's strategy to develop the information highway is informed by three primary considerations: job creation through investment and innovation in Canada, reinforcement of Canadian sovereignty and cultural identity, and an objective of universal access to the network at reasonable cost for Canadians. These objectives also guided IHAC's deliberations, including those in the area of copyright and intellectual property (Canada, 1995a: vii). Ironically, then, it seems that the conclusions drawn by both the Copyright SubCommittee and IHAC may, in the long term, prove to undermine those very objectives. Copyright, as emphasized in this discussion, is an important consideration in both economic and cultural matters. Failure to adequately address the issues raised by it in terms of digitization and interconnectivity bodes poorly for the development of well-informed policy and legislation. The NGL Nordicity Group Ltd., in a study presented to Industry Canada in 1994, presented four general policy approaches as potential avenues for the future of copyright reform in convergence. The first was to consider traditional notions of copyright as 'obsolete' and to use the present Copyright Act as supportive legislation backing private contractual and technological solutions in a free-market. Policy 'tinkering' and larger changes to administration marked the second approach offered. In this strategy the government would act primarily in a leadership role, with the onus on copyright stakeholders themselves to forge the innovation of copyright practice and reform on the information highway. Further, a federal lobby would push for an international rights registry and in support of Canadian-based rights collectives. The third and fourth approaches involved making substantial changes to copyright legislation through an adaptation for digital media. The third approach would involve creating a new category of works with a specific set of rights or collapsing previously distinct categories of works into a single category, while the fourth would create sui generis legislation for new media, similar in concept to the Integrated Circuit Topography Act of 1990 (vis-à-vis patent law).9 In its conclusions IHAC appears to have opted for approach number two, with an emphasis on clearing the way for the invisible hand of the market to decide the future direction of copyright reform. On the one hand, this approach does allow for a kind of natural equilibrium to take place in an otherwise unpredictable area of rapid change. On the other hand, however, it can be seen as failing to ensure 'the orderly development' of communications policy and regulation in Canada. The phrases 'sufficient protection' and 'sufficiently flexible' not only send the wrong message to policy-makers on the matter of copyright reform, but potentially set the stage for patchwork legislation emerging out of case law. 'Orderly development' is surely wishful thinking if long term policy objectives are not addressed in legislation. In an environment of increasing international harmonization and free-trade, moreover, Canadian cultural sovereignty is threatened all the more by uncoordinated domestic policy aimed at protecting information and royalty flows. With the pressure for an open-market communication system acting as a basis for the information highway, IHAC may be selling Canadians short in the long term. Indeed, Babe (1990) insists that the deregulatory trend marking convergence 'is accomplishing a dismantling of legal/policy frameworks,' and 'currently making less viable [the] pursuit of administered non-market social and cultural goals' (18). The Chair of the Copyright SubCommittee, Claude Brunet, has indicated that, in adopting the government's deregulatory approach to the information highway initiative, a 'hands-off' policy also informs the conclusions reached on copyright reform (Stuart, 1995: 10). Without firm and clearly guided copyright legislation in place, the dark legacy of Canadian communication policy -- whereby technological infrastructure has traditionally been over-emphasized at the cost of Canadian culture -- may simply continue with the information highway. The government's emphasis on job creation, cultural sovereignty, and universal access are all objectives that may very well be undermined by the dogmatic market mentality that has apparently led to a less than adequate or timely set of recommendations concerning the lagging process of copyright reform in Canada. return to top of document --------------------------------------------------------------------------- WORKS CITED Abram, Stephen. (1995). 'Crown Copyright and Democracy,' Information Highways. 2(4), April. p.5 Babe, Robert E. (1990). Telecommunications in Canada. Toronto: University of Toronto Press. Bettig, Ronald V. (1992). 'Critical Perspectives on the History and Philosophy of Copyright,' Critical Studies in Mass Communication. 9(2), June. pp.131-155. Branscomb, Anne. (1991). 'Common Law for the Electronic Frontier,' Scientific American. 265(3), September. pp.154-158. Canada. (1984). Consumer and Corporate Affairs: From Gutenberg to Telidon. Ottawa: Minister of Supply and Services. ISBN: 0-662-53009-8. Canada. (1985). A Charter of Rights for Creators. Ottawa: Minister of Supply and Services. Canada. (1992). Communications Canada: The Information Society: New Media ... New Choices. Ottawa: Minister of Supply and Services. ISBN: 0-662-59363-4. Canada. (1995a). Industry Canada: Connection, Community, Content: The Challenge of the Information Highway. Final Report of the Information Highway Advisory Council, September 1995. Canada. (1995b). Industry Canada: Final Report. Copyright SubCommittee of the Working Group on Canadian Content and Culture: the Information Highway Advisory Council, March 1995. 'Copyright.' (1989). International Encyclopedia of Communication. Volume 1. New York: Oxford. pp.411-421 Dreier, Thomas. (1993). Copyright Digitized: Philosophical Impacts and Practical Implications for Information Exchange in Digital Networks. Paper presented at WIPO Worldwide Symposium on the Impact of Digital Technology on Copyright and Neighboring Rights, Harvard University, March 31 to April 2. Eischen, Bernadette. (1991). 'To what extent does copyright protect the output of computer programs?' Canadian Computer Law Reporter. 8(6). pp.83-89. Hayhurst, W.L. (1994). 'When Sovereignties May Collide -- Sovereignties and the Regulation of Business in Relation to Intellectual Property: A Canadian Perspective,' Canada - United States Law Journal. (20). pp. 195-220. Japan. (1994). Exposure '94: A Proposal of a New Rule on Intellectual Property for Multimedia. Japanese Institute for Intellectual Property, February. Japan. (1995). A Report on Discussions by the Working Group of the SubCommittee on Multimedia Copyright Council. Agency for Cultural Affairs, February. Ludlow, Gregory C.(1993). 'Intellectual Property (1987-93), Part I -- Summary of Government Activity,' Ottawa Law Review. 25(1). pp.89-122. Miller, Nicolas P. and Carol S. Blumenthal. ( ). 'Intellectual Property Issues,' in A. Branscomb (ed), Toward a Law of Global Communications Networks. New York: Longman. pp. 227-237. Mosco, Vincent. (1990). 'Toward a Transnational World Information Order: The Canada-US Free Trade Agreement,' Canadian Journal of Communication. 15(2), May. pp.46-63. NGL Nordicity Group Ltd. (1994). Study on New Media and Copyright: Final Report. Produced for Industry Canada. Ottawa: Minister of Supply and Services. ISBN: 0-662-22493-0. Reidenberg, Joel. (1988). 'Information Property: Some intellectual property aspects of the global information economy,' Information Age. 10(1), January. pp.3-12. Rosen, Allen. (1992). 'Reconsidering the Idea/Expression Dichotomy,' UBC Law Review. 26(2). pp. 263-280. Stuart, Linda. (1995). 'SubCommittee closing in on information highway copyright rules,' Info Canada. 20(4), April. p.10. United States. (1995). Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights. Information Infrastructure Task Force. ISBN: 0-9648716-0-1. Vaver, David. (1988). 'The Canadian Copyright Amendments of 1988,' Intellectual Property Journal. (4). pp.121-155. Vaver, David. (1990). 'Copyright Phase 2: The New Horizon,' Intellectual Property Journal. (6). pp.37-66. Wilson, Brenda and Peter Burpee. (1990). Understanding Copyright: A Practical Guide for the Social Sciences and the Humanities. Ottawa: Social Science Federation of Canada. return to top of document --------------------------------------------------------------------------- FOOTNOTES 1 Word has it (from the Canadian Library Association) that a copyright Bill is due to be tabled sometime in mid-December, 1995. return 2 For a list of 'spin-off' Acts conforming with the FTA and NAFTA -- making provisions for re-transmission rights, and so on, see Ludlow, 1993. return 3 In terms of defining 'reproduction,' the international trend seems to consider information held in and accessed through RAM (regardless of temporality) a sufficient condition for claiming a right (Japan, 1995: 10). If RAM constitutes a 'reproduction' then it must certainly be, first and foremost, a form of fixation for copyright to subsist at all. return 4 For a case study in this matter, see the Canadian Computer Law Review (8), 1991. p.83-39 concerning a case filed by Nintendo against the manufacturer of an interface device designed to modify videogame outputs. Remedy was being sought on the grounds of the author's (moral) right to integrity. return 5 For instance, could a scholar insert a 30-second clip from a Disney film in a multimedia film essay without having to get express consent and/or paying a fee? return 6 National treatment obligations are concerned with reciprocity in dealing with the intellectual property rights of foreign nationals. In the Copyright SubCommittee's Final Report submitted to IHAC, these are defined with respect to Article 3.1 of the WTO-TRIPS agreement, stating 'that Canada must accord to the nationals of other parties treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property' (IHAC, 1995b: 46) return 7 Possibly a wise move in both economic terms (opening new markets for information producers in creating guides to government publications) and in terms of greater access for users. One case in this matter involves the Department of Finance charging phenomenal amounts for its information in electronic form. Perhaps revoking copyright would drive down this kind of stratospheric pricing and make more information available for wider access, although in terms of lost revenue, deficit issues might nullify at least some of the appeal of this option. (see: S. Abram. (1995). 'Crown Copyright and Democracy,' Information Highways. 2(4), April: 5.) return 8 Apparently, the SubCommittee considered Phase II issues distinct and separate from those being addressed specifically by IHAC. IHAC issues are seen to be 'a phase III exercise.' (Alison Taylor, Senior Policy Analyst, Canadian Heritage -- personal communication, December 4, 1995). return 9 NGL notes that this approach would require a substantial degree of international harmonization and co-ordination in the tradition of Berne/UCC, but would allow for greater flexibility in terms of the complex issues introduced by convergence. Also pointed out is the potential problems caused by creating layers of rights holders if sui generis legislation was introduced, involving holders of copyright with possibly a separate set of rights in digital form. return --------------------------------------------------------------------------- Other Sites of Interest The Copyright Website An excellent collection of resources on intellectual property in the new media environment Copyright Clearance Center Inc. Innovation in copyright administration Industry Canada The IHAC Final Report and various subcommittee reports can be found here Moving Canada into the 21st Century Industry Canada's follow-up to the IHAC Report (May, 1996) Yahoo listings of sites related to intellectual property return to top of document --------------------------------------------------------------------------- Copyright 1996,Gordon A. Gow ---------------------------------------------------------------------------