Canada’s search for its elusive copyright legislation

By Emmanuel Legrand

So Bill C-32, that was due to modernise Canada’s unfit-for-purpose copyright legislation, is dead before even being discussed before the nation’s Parliament.

Hit by a confidence vote at the Commons on March 25, PM Stephen Harper has been forced to call for new elections, and the process killed Bill C-32. Called Copyright Modernization Act, the text had been about three years in the making, with contributions from all sides, including by some very active copyleft groups, and it sparked a very healthy debate about the nature of copyright in the 21^st Century.

“It shouldn’t take 14 years to do copyright reform. Even three years seems unreasonably long,” writes Barrie McKenna in CTV News. “Canadians should want to get it done because it’s the right thing to do. (…) The guts of Canada’s laws date to a time when the eight-track player was a hot item. If Canada wants to be a leader in global innovation, the country should have laws to match its ambition. Instead, we have a Wild West of illegal file sharing and inadequate tools to go after companies that are profiting from the legal vacuum. Meanwhile, we’re scaring away lucrative businesses that would sell us digital media conveniently, and legitimately.”

CRIA's Graham Henderson
(picture: CRIA)

In this context, it is not hard to sympathise with Graham Henderson, president of the Canadian Recording Industry Association, which represents record labels, who quipped that the situation was “beyond frustrating”. In saying that he probably reflected the mood of the whole creative community, that had fought long and hard to get the Bill first on the agenda of the government, and then to make sure that it included some key provisions.

What fascinates the observer is that Canada has one of the world’s most dynamic economies, and boasts an amazingly vibrant creative community (from Arcade Fire to… Céline Dion), and it cannot get its act together when it comes to copyright. In the past decade, it had become a joke among visitors to ask embarrassed Canadians if they had made progress on the copyright front, as there had already been two failed attempt to update Canada’s copyright legislation (2006 and 2008).

The country is regularly on the “Priority Watch List” of the USA’s infamous Special 301 Report, which lists the least copyright compliant countries in the world, joining the likes China and Russia. “Canada has not completed the legislative reforms in the copyright area that are necessary to deliver on its commitments,” said the 2010 report.

The consequences of this legislative vacuum are multiple. The country lacks a solid framework for the digital era that would protect rights owners as well as providing safeguards for consumers and access providers (and that also would takes into account some exemptions). So far, the lack of appropriate legal system has prevented major digital players to establish shop in Canada and has helped illegal downloads to flourish.

For the creative community, this gap opens another era of uncertainty. It paves the way for potentially another time-consuming legislative process that will most certainly be undertaken by the new government in Ottawa after the May 2 elections – a government that could well be led by Harper himself as he is running again. And for many in the industry, regardless of their political views, seeing Harper win again could be a blessing in disguise as C-32 could just be put back on the legislative agenda by the new government.

If the legislative process has to be started all over again, it seems quite certain that Canada will not be removed from the 301 Report for the foreseeable future. If it drags on like that, Canada might have to wait for the 22^nd Century before getting a 21^st Century copyright legislation.