As our copyright regime is the most significant factor in determining the extent to which information-based creative endeavour is rewarded, copyright can be said to be a cornerstone of Canada's information economy. Government and industry must work together to assure creators and copyright owners of fair compensation for use of their works in electronic or any other form. Canada's competitive advantage in sustaining an information economy will be based on our ability to develop advanced information products, thereby encouraging further creation and growth. For this to take place, creators of the products and services must receive fair compensation based on the utility and popularity of their efforts, and they must be able to determine how and under what terms their works are made available.
Canadians have a clear interest in maintaining a vibrant competitive marketplace where information companies compete in offering users a wide choice of information products and services at a range of prices. The concept of 'choice' is an increasingly important ingredient: creators and copyright owners must have the freedom to choose which products and services to develop, and how they will be offered to the public using the information infrastructure; users must have the freedom to choose which products and services to access via the information infrastructure; and Canada as a country must choose among alternative approaches to copyright and development of the information infrastructure - regulation, legislation, administration or encouragement, bearing in mind that our choices may have international as well as domestic significance.
A priority must be to ensure that the Copyright Act is adequate for the purpose of dealing with the concept of choice within a context of change in the advanced electronic environment - change in the relationship between users and creators, change in the value and nature of the underlying asset represented by Canada's information resources, change in the way we store and access information, change in the ability to reproduce a work, and change in the creative technologies available. Major change must also take place in copyright practices, driven for the most part by the information industry itself. Government has an important facilitating role, however, in clearing the path for industry-led change, in providing opportunities for the public and interested parties to present their views, and in ensuring that the eventual policy framework reflects those contributions.
Reflecting the importance of copyright to our information economy, copyright issues are being addressed by the Information Highway Advisory Committee established by Industry Canada, by advisory groups at work in most Canadian provinces, and by industry working groups across the country. The Information Technology Association of Canada (ITAC) believes that Canada's copyright regime should be founded upon five principles:
Canada's copyright regime must be neutral in its approach to all technologies if the rights of all creators and copyright owners are to be protected equally. The novelty of multimedia, interactive or other nontraditional technologies underlying services made available through the information infrastructure may mean that they are not covered adequately in the existing Copyright Act. It is important that Canada's copyright regime be reviewed to ensure that it offers equal protection and encouragement to all expressions of creative endeavour, whatever technologies and formats are used. While the concept of copyright is fixed, the application of the law requires constant review to ensure that it is applied fairly and appropriately as technology changes.
The ability to reproduce information is basic to the information infrastructure. Unfortunately, copies still tend to be thought of as physical entities, and digital images on screens as valueless ephemera. This is despite the fact that we are moving toward a day when many information products will be available only as electronic images, and there will be no distinction between viewing, copying, and use. Calling up electronic information for browsing or any other transitory purpose should be seen as constituting use, and copyright owners should be entitled to appropriate compensation, as they of course should also be for downloading whether or not a hard copy is produced. Creators wishing to allow or encourage browsing (or downloading) without compensation will have the option of building it into relationships established with users.
Creators and copyright owners must be assured of fair compensation for use of works made available on the information infrastructure, where revenue will increasingly be based on access to information in electronic form rather than on exchange of physical objects. Access to electronic information in the private sector must continue to be based on negotiated agreements between creators and users, and not on mandatory licensing schemes. Compensation rates should also be decided through negotiations among creators, copyright owners and service providers offering licensing arrangements based on their own knowledge of what information users want. Creators and owners should retain responsibility, as individuals or in association with other creators and owners, for administering licensing arrangements for themselves.
Once a licensing agreement has been reached, the copyright owner will be reliant on accurate measurement of the frequency of access to, and usage of, their works, and on adherence to the terms of the licensing agreement. Keeping track of information use in a fast-moving user environment will be of primary importance if copyright owners are to be compensated fairly. Recognizing that copyright must be easily identifiable by users if it is to be respected, information technology companies are working to develop a digital 'tag' that can accompany products transferred by way of the information infrastructure. The tag would identify the creator, the publisher and bibliographic information, and stipulate that those wishing to reproduce parts of the product should first contact the copyright owner or agent at the address provided. Means of tracking use of works available through the information infrastructure are also being developed. Electronic identification of intellectual property rights will encourage technology to bloom and make use of the information industry in Canada; it is unlikely that standardization or requirement by force of legislation or regulation will be required.
Government should be left to focus on what it can do best - set policy, and enforce its useful laws and regulations - and Canadian individuals and companies should be left to do what they can do best - create jobs and wealth. However, government can play an important role by facilitating research in this area and by licensing the systems that evolve from the private sector. Government funding should be used strategically, emphasizing the creation of employment and economic opportunities through private sector initiatives rather than marginal returns from significant investment in government resources. The private sector should and will bear the largest cost.
With national boundaries on the sharing of information having all but disappeared in many cases, copyright protection measures must extend beyond national boundaries to encompass foreign-based information services that are used by Canadians, and Canadian information services used by foreigners. International copyright mechanisms must be meshed so that it is clear whose laws control the resolution of a dispute over copyright infringement - those of the country where the work was uploaded, where it was downloaded, or where the host server is located. Participation in international standards bodies is one way in which Canada can influence events and ensure that its copyright regime is in harmony with those of other countries. The information infrastructure can maintain and accelerate the prominence of Canadian information, which is among the most valued in the world, but harmonization among legal and administrative regimes will be necessary if Canada is to fully engage the world market for our intellectual property. Government should become a major proponent of strong protections for intellectual property for Canadians in Canada and throughout the world, to ensure adequate compensation and thereby ensure flourishing industries in information and culture.
Fair dealing provisions are a defence for limited copying without compensation to copyright owners, a serious economic issue in the information age. While the public has assumed that a great deal of latitude exists in the definition of fair dealing, the ease of access and reproduction provided by the new technologies allow the fair dealing defence to become a doorway to unacceptable levels of unauthorized copying via the information infrastructure. New arrangements should be encouraged to evolve through creative negotiations between copyright owners and users, including schools and libraries. Creators and compilers of information services should be encouraged to enter into agreements that make use of electronic information easy - and legal - rather than forcing users to defend this copying on the basis of fair dealing. Copying is so easy in a technologically advanced environment that rigid enforcement is impossible and, furthermore, the traditional tests for the proportion copied are not appropriate.
Existing assumptions regarding liability for infringement of copyright should be reexamined in light of the fact that the roles of 'common carrier', 'vendor', 'BBS', and 'creator' are no longer as easily defined as they were when the current copyright legislation was enacted. The current exemption of common carriers from liability should be retained, but needs to be reviewed and clarified now that common carriers add content through subsidiary companies, and servers often act both as carriers and as adders to and controllers of content.
The information industry recognizes that its electronic products can be adulterated with time and copying, and works hard at keeping them current and at adding value to ensure that the user has accurate information. Government must be prepared to take the same measures as business (e.g., embedded codes) to protect the integrity of statutes and other information products.
All Canadians must have open and equitable access to information produced by government at all levels if our rights to know and to participate in public affairs are to be safeguarded. Furthermore, ready access to government documents and information is essential if Canada is to encourage creative use of its storehouse of information to support information-based Canadian enterprises. There is therefore a need for a low-cost, universal right of reproduction and dissemination of federal, provincial and municipal government material for personal or commercial reasons. Crown copyright, where it exists, and Crown prerogative, when used to restrict such access and distribution, are inappropriate. ITAC believes that Crown prerogative should be abolished outright, and that Crown copyright should be used to promote rather than restrict dissemination of public information. Canada's economy and government revenues will benefit more from encouraging the use of government information and publications by a successful business sector than from using increasingly scarce public resources to set up additional government-run businesses.
The future of the information infrastructure rests equally on the usefulness of the content and the ease of its use, which is largely dependent on the availability of sophisticated software. Software development has been one of Canada's success stories, and we need to protect and encourage our software industry. Government has provided considerable research support in the past, and should encourage further development by observing the policy that intellectual property created for its use under contract remains with the contractor. It is counterproductive for government to claim copyright in software that has been developed by the private sector, as this discourages future collaborative efforts.
In an advanced electronic world, policing copyright infringements has become an unrealistic chase to monitor works that can be copied with a few keystrokes. Canada needs to adopt a new model that fits the reality of public priorities into the 21st century. A new legislative and regulatory framework, based on responsible use by an informed public, must be developed in consultation with creators, copyright owners, users, service providers and other interested parties. The resulting framework must be reviewed on a regular basis. Such a model has been employed successfully by government in other areas, such as health care and environmental management.
Fostering respect for copyright is perhaps the best defence against transgressions. If Canadians see themselves as potential copyright owners and become familiar with the value of copyright, they will be more respectful of copyright rights and responsibilities in general. Education is therefore a priority, and government and industry groups - including service providers, technology companies and copyright collectives - must work together to support and strengthen educational efforts aimed at improving understanding of copyright issues among Canadians. Clearly we need to educate creators and users about copyright protection and liability so that creators are encouraged by the knowledge that they will be compensated fairly for making their work available through the information infrastructure.
Leadership will be required of the federal and provincial governments, the information industry, and associations such as ITAC if Canada is to benefit fully from the potential of copyright to drive creativity and industrial development while at the same time strengthening Canadian culture. As information industries need a regulatory regime that guarantees fair compensation to creators of both information technologies and information services, ITAC is playing an active role in reviewing the legislative and administrative framework around copyright in Canada.
Copyright issues have been a good example of how companies in the information industry, individually and through ITAC, can work with government to improve Canada's economy. The sophistication of the issues involved presents challenges in application and implementation, and the information industry as a whole will no doubt continue to move on several fronts. For its part, ITAC represents 450 member companies and affiliates in the information technology and information services industries.
In working with government and other industry groups to develop and implement effective educational campaigns around copyright issues, ITAC brings to the table a coalition of information companies, information technology companies, communication companies and carriers, all of which are major players in the creation of electronic information and its delivery to the public. The information and cultural industries can no longer be two solitudes: there is a need to recognize how copyright and other intellectual property issues affect the viability and potential contributions of both to Canada's economy and Canadian society. Given the breadth of experience and interests of its members, ITAC looks forward to playing a leading role in positive initiatives.