New European rules that will make tech firms liable for copyright violations on their platforms have been both lauded by musicians and artists and lambasted by those who champion intellectual freedom.
But one thing that’s not in dispute is that similar rules won’t be coming to Canada any time soon, experts say.
The copyright directive, endorsed by 19 European countries in mid-April, will compel companies such as Google and Facebook to ensure copyrighted content — everything from music and films to news and books — isn’t posted on their platforms without a creator’s permission. Some tech firms may have to acquire licences to host such material.
The EU’s 28 member states now have two years to adopt the rules and create their own policies.
The reforms have been touted as a way to rein in powerful tech firms and restore revenues to creative industries, often paid fractions of a cent for use or streams of their content. They have been championed by musicians such as Paul McCartney, Lady Gaga and Coldplay, but have also faced fierce opposition from tech giants and other critics who argue the policies will be too difficult to police and that they could stifle freedom of expression, promote censorship and even “break the internet.”
Canada launched a review of its own copyright policies in 2017, but has yet to take steps as stringent as the EU or even reveal its findings.
However, experts are suggesting Canada likely won’t be playing copycat to the EU’s copyright policies, although it may experience the effects of its counterparts’ regulations because of the borderless nature of the internet and the influence other western countries often have on Canada.
University of Ottawa law professor Michael Geist, who appeared before a federal government committee studying copyright matters, said the European rules were raised from time to time, “but I don’t think there is a strong sense that (Canada) would recommend the European direction.
“Canada has a bit of a history of trying to craft its own rules that reflect international norms,” said Geist, who added Canada doesn’t always follow its allies when it comes to tech.
He pointed out Canada has not offered the same safe-harbour regulations — rules freeing entities from liability — over digital content that the U.S. has. It also has yet to adopt Europe’s right-to-be-forgotten legislation, which allows people to request that search engines remove links about them that they consider “inaccurate, inadequate, irrelevant or excessive.”
Much like safe harbour and the right-to-be-forgotten regulations, the EU copyright proposals have been mired in controversy — an added deterrent for Canada.
Tens of thousands of people in Germany protested the changes in March and 70 internet icons, including World Wide Web creator Tim Berners-Lee and Wikipedia founder Jimmy Wales, signed a letter last June decrying the changes as “an unprecedented step towards the transformation of the internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.”
On the flipside, more than 1,300 artists signed an open letter penned by McCartney last summer that called on EU members to support the copyright changes, saying that not doing so would put the future of the music industry at risk.
In the end, lawmakers in the European Parliament voted in favour of the new directive by a vote of 348 to 274.
Geist reckons Canada could further be deterred from adopting EU-inspired copyright provisions because previous reforms here have already delivered positive results, including a spike in licensing spending by educational groups in the publishing sector and record revenues for the Society of Composers, Authors and Music Publishers of Canada.
“There isn’t an emergency taking place in many of the sectors. Canadian copyright rules are generally working pretty effectively,” said Geist, who has appeared before parliamentary committees numerous times to provide expertise on copyright issues, e-commerce laws, access to information legislation and telecommunications reform.
“That doesn’t mean there aren’t areas where there aren’t challenges. The media sector is an obvious example, but it’s not copyright that will address the systemic challenges media face.”
Randy Boissonnault, the Liberal MP for Edmonton Centre who sits on the committee involved with the copyright review, said he’s heard of artists who have trouble paying their bills despite having hundreds of thousands of plays on streaming services, and of authors who abandon their writing because of the difficulty of making money on online platforms.
Although many have heaped blame on tech giants for eating into creator profits, Boissonnault said neither he nor the federal government is characterizing any parties involved in the copyright review as a “protagonist or antagonist.”
He added that a report from the committee studying copyright will be released soon.
“It is really important for us to have a made-in-Canada solution that also looks at what other jurisdictions are able to do, so we can learn from their experience,” he said.
Learning from that experience may happen whether Canada copies the EU policy or not, because experts believe the decisions made overseas will have a ripple effect.
If tech firms use upload filters to catch people in the EU posting copyrighted materials without permission, there’s a chance the measures could be used elsewhere, changing the internet experience for Canadians, said Geist.
Depending on how the final European legislation is crafted, Canadian creators may see their work protected if their rights are violated in Europe, said Myra Tawfik, a University of Windsor law professor specializing in intellectual property.
“Once a country adopts a more stringent standard, there is a tendency for that standard to become the international model,” she said.
Tawfik would prefer Canada adopt a “wait-and-see approach” before mirroring the EU on copyright because she thinks it will allow the country to learn from its overseas counterparts and avoid some of the pitfalls.
Lucie Guibault, the associate director of Dalhousie University’s Law and Technology Institute, agreed.
“There are many measures in the European directive that don’t make so much sense, so we should certainly not feel compelled to copy them,” she said.
Guibault worries the EU could consider a provision prohibiting search engines and content providers from making news articles available online without paying a fee — a tactic research in Germany and Spain found to be ineffective at generating traffic or revenue.
She also has concerns about the potential for the EU to let publishers take a share of the profits of remuneration or photocopying of articles if a journalist has transferred or licensed rights to a publisher, because it could weaken “the already weak” position of freelancers and reduce their incomes.
Some parties appear to be growing frustrated from repeatedly asking for change while other nations charge ahead.
News Media Canada, an organization of more than 800 members, including the Star’s parent company, Torstar, has lobbied the federal government for copyright relief for at least two years. Some of its members suggest the EU model should be considered.
The organization previously complained it has yet to see action from the federal government as social media companies bite into its members’ advertising and subscription profits.
When Stephen Harper was prime minister, rocker Bryan Adams quietly asked for changes to Canadian provisions that keep artists who sign away the rights to their work from regaining those rights prior to 25 years after death.
In September, he went back to the federal government — this time publicly — to ask for the provision to be changed from 25 years after death to 25 years after “assignment.” This will help budding artists make a living, he believes.
The tech giants have no doubt been watching. Copyright adjustments by the EU — and anyone else who follows suit — could heap new responsibilities and costs on them, and even worse, disrupt the foundations of their companies.
Several skirted questions from the Star about whether they will proactively introduce measures required by the EU in Canada.
Twitter Canada refused to comment.
Google, which owns YouTube, trumpeted its Content ID and Copyright Match tools, which enable Canadian rights holders to block or remove their works posted without permission or keep them on the platform and earn advertising revenue.
“Canadian creators need strong copyright protections, coupled with technologies, to manage their rights, build successful businesses and reach global audiences,” said Jason Kee, a government policy representative for YouTube Canada, in an emailed statement.
Facebook Canada boasted that it already uses copyrighted-content recognition systems and has recently tested a content-rights management tool that allows creators to upload and maintain a reference library of videos to monitor and protect copyright.
“We take responsibility for the integrity of our platform and we will continue to develop strong anti-infringement tools around copyright, in collaboration with rights holders — who are among our closest business partners,” said Facebook Canada’s head of policy, Kevin Chan, in an email.
“When it comes to the intellectual property of rights holders, we take copyright protection seriously.”
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