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Early reaction to C-61

By Christopher Moore | June 13, 2008

Everyone says it is complicated — but the anti-copyright community hasn’t let that stop it from unleasing a torrent of abuse. (Michael Geist links to most of the “Kill C-61″ forces.) Creator organizations and producers seem to have been a little more cautious, but there may be a “not as bad as we feared” response developing.

Striking: the things the anti-copyright lobby is basing its fury on. Here’s Jim Turk of CAUT, waxing furious — well, that universities are not given a free hand to block digital locks. That seems to be only thing Jim can find to be furious about at short notice. Universities will be denied access, he says, seemingly meaning the $40 billion a year education sector won’t be free to appropriate anything it wants. Licensing rights still seems a tough sell for university administrators — and for CAUT, the profs’ union.

Striking: the labelling war. “It’s a Canadian DMCA” was effective for the anti-copyright cause last December. The government trumpeted “made in Canada copyright policy” very loudly yesterday, and listed the many differences. The critics are continuing with last winter’s meme.

Striking: several of the critics are angry that the bill is not in the spirit of the Supreme Court’s 2004 CCH decision. And it isn’t. The Supreme Court tried to move into the legislative vaccuum by micromanaging copyright policy in the guise of interpreting the law. The law makers seem to be striking back; in the end Parliament gets to make laws.

It’s not the bill we need, let’s say that. Every news item seems to start with, “It’s very complicated…” And as Prof David Vaver was arguing (noted way below), the copyright bill is already so complicated that even judges and legislators don’t understand it. An ideal copyright bill might just start over, with a setting-out of copyright principles and a much shorter shopping list of privileges and exceptions.

Instead, once again we get a bill which reaffirms the idea of copyright on one hand, and on the other (“balance”) creates a lot of new special privileges to override rights, with the privileges then hedged about with new conditions. Once again the government’s drafters show themselves as inclined as the judges to micromanage copyright. These drafters seem to have lost interest in the collective licensing system that was a fundamental aspect of copyright thinking 15-odd years ago. Too bad: most of the special conditions and circumstances could be negotiated as needed through licenses. Instead the government goes on trying to cover every need and interest in a clause of the Copyright Act (always suitably hedged by the next clause).

Of course, the failures and shortcomings of the collective licensing system have to answer for some of that. If Access Copyright had done what it needed to gain the trust and support of creators (and users), for instance, governments might be building on collective licensing today, instead of seeming to work around it. But access and rights is what we should be aiming for, not a system of endless litigation over the interpretation of arcane subclauses of a jerry-built copyright act. And well-run licensing systems still have lots of promise.

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