The Copyright Lobby’s Fake News About the State of Canadian Copyright

The International Intellectual Property Alliance (IIPA), a lobby group that represents the major lobbying associations for music, movie, software, and book publishing in the United States, has released its submission to the U.S. government as part of the Special 301 process. The Special 301 process leads to an annual report invariably claiming that intellectual property rules in the majority of the world do not meet U.S. standards. The U.S. process has long been rejected by the Canadian government, which has consistently (and rightly) stated that the exercise produces little more than a lobbying document on behalf of U.S. industry. The Canadian position, as described to a House of Commons committee in 2007 (and repeated regularly in internal government documents):

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It’s driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

The lack of credibility stems in part from the annual IIPA submission. While the submission generates some media attention, this year’s falls squarely into the category of fake news. The IIPA focuses on three concerns: piracy rates in Canada, the notice-and-notice system for allegations of infringement, and fair dealing. None of the concerns withstand even mild scrutiny and each is addressed below.

1.    State of Canadian Piracy

The IIPA and rights holder groups claim that Canada was/is a piracy haven in need of copyright reform.

The IIPA claims are presented without much evidence, presumably because it isn’t available. The real Canadian story is that infringement rates have consistently declined in recent years. For example, the Business Software Alliance’s annual report last showed Canada at its lowest software piracy rate ever and well below the global and European averages.

2.    Notice and Notice

The IIPA is also unhappy with Canada’s notice-and-notice system, which it says is inadequate, is not receiving full compliance from ISPs, and which hurts licensed services. As noted above, licensed services are experiencing record revenues and growth in Canada.  Further, there has been no public evidence that ISPs are not compliant with the law. It would be surprising if there was given that ISPs face financial penalties for failure to comply with the law.

With respect to whether the notice-and-notice system meets U.S. standards, it is worth noting that the U.S. government itself has acknowledged that it does. As part of the Trans Pacific Partnership treaty, the Canadian system was treated as equivalent to the U.S. system for the purposes of complying with ISP liability and safe harbour rules.

The IIPA is blowing smoke up your you know what.

3.    Fair Dealing

The IIPA comments on Canada also focus on Canadian fair dealing law, as it points to the 2012 reforms and states “that none has had a more concrete and negative impact than the addition of the word ‘education’ to the list of purposes (such as research and private study) that qualify for the fair dealing exception.”

First, the attempt to link fair dealing practices in Canada with the 2012 legislative reforms are false. Fair dealing includes multiple purposes that can be relied upon by educational institutions, including research and private study. The addition of education in 2012 was always evolutionary rather than revolutionary. Indeed, the proof is in the Supreme Court of Canada’s fair dealing copyright decisions, which ruled against Access Copyright without the benefit of an education fair dealing purpose.

Second, the State of Canadian Educational Publishers.

The IIPA repeats the oft-stated claim that Canadian educational publishers are struggling and seeks to draw a direct link to fair dealing. The claim is false. Publishers may be facing new challenges, but copyright is a minor part of the story as disclosed in their own corporate and legal filings.

As the Canadian Association of Research Libraries (CARL) noted at the start of this academic year:

The 31 member libraries of the Canadian Association of Research Libraries (CARL) spent $293 million on information resources in 2014-15, demonstrating a clear commitment to accessing print and digital content legally and rewarding content owners accordingly. Universities are actively engaged in outreach to their faculty, staff, and students, educating them on their rights and responsibilities under the Copyright Act and ensuring that uses of material under copyright fall well within the provisions of the law. Where educational uses are more substantive and therefore fall outside of fair dealing, the content is either purchased to be added to licensed collections, or rights clearances are obtained and royalties are paid for these uses. Trained, knowledgeable library staff support these activities.

The IIPA and its allies have engaged in a fake news effort to malign fair dealing in Canada. The actual numbers and evidence tell a far different story: paying for content remains by far the largest method of acquiring access to content for educational institutions.

Read the complete article on Michael Geist’s blog.

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