Europe Visits Canada: What European Copyright Law Has To Offer

Europe Visits Canada: What European Copyright Law Has To Offer

Guillaume Laroche is an LLM candidate at Osgoode Hall Law School.

Of all the great policy discussions that can be found in Ottawa on any given day, those seen last Friday, October 21, 2011, at IP Osgoode’s conference, “Can Canada Learn Anything From Europe? European Perspectives on Copyright Law in the Information Era” were certainly the best in town. Hosted in the newly-renovated Ottawa Convention Centre, it brought together over 100 academics, industry representatives, non-profit directors, civil servants, lawyers and law students, and an international audience of individuals attending via webcast. The conference was a tremendous success, and its timing especially apropos, given the introduction of Bill C-11, the Copyright Modernization Act, in the Parliament of Canada just a few weeks ago on September 29, 2011.

Within the great number of perspectives found in the remarks of academics, industry leaders and public institution chiefs, there was something for everyone to take back with them. Those who missed the conference can read the program, view the PowerPoint slides, and watch the webcast on IP Osgoode’s website (

Dr. Giuseppina D’Agostino, Founder and Director of IP Osgoode and Associate Professor at Osgoode Hall Law School, kicked off the conference with welcoming remarks.  She stated, “We are bringing IP Osgoode to Ottawa to inject independent and authoritative perspectives into the IP debate.” As the conference summary below will show, authoritative perspectives were hardly in short supply, a real treat for all those in attendance.

Next followed a keynote address by Prof. Silke von Lewinski of the Max Planck Institute for IP and Competition Law. Prof. von Lewinski’s overview of the EU framework for copyright set the tone for the day, presenting the EU’s model for distinguishing its own and member states’ powers in administering copyright and the differences between copyright recommendations and copyright directives. For a Canadian audience unfamiliar with some of the European model’s more refined details, this was very much a necessary introduction in order to make sense of the rest of the day’s discussions. Prof. von Lewinski suggested several lessons for Canadian copyright throughout her presentation. First, she extolled Europe’s exceptions and limitations as having found the right balance between rights holders and users, and urged Canada to carefully revisit the relationship between Technological Protection Measures and exceptions and limitations. She also suggested that the EU’s system for compulsory music licensing, which is convoluted because it is required to deal with 27 different jurisdictions, should not be replicated on this side of the Atlantic. In sum, von Lewinski’s introduction showed both the depth and complexity of European copyright, yet did so without getting hung up in details, clearly articulating the current debates against those largely resolved past issues.

Having set up a basic context, the conference continued with panel discussions. Professor D’Agostino chaired the first panel, entitled “The Tortuous Path to Reform”. The panel discussed copyright reform, first hearing from European Commission intellectual property officer Denis Dambois about the rationale behind the Commission’s copyright policies and their relationship to trade. Italian Supreme Court Justice Vittorio Ragonesi then spoke on the practical importance of addressing the peculiar case of orphan works. Laws should allow “heritage institutions” such as public libraries to reproduce orphan works for archiving and other public interest goals in more straightforward ways via special exemptions, he argued. It’s worth noting that neither section 77 of the current Copyright Act nor the amendments proposed in Bill C-11 come close to dealing with orphan works in ways that would satisfy Justice Ragonesi. Finally, Queen Mary School of Law professor Jonathan Griffiths presented on the European exceptions and limitations framework. The common theme running throughout all speakers’ presentations was the nature of balance between compensated and non-compensated uses of copyrighted works. The takeaway message, that balance means something different to everyone, is not at all a new idea, but the discussion reified just how hard a question it remains to settle. Hearing the different perspectives—political, judicial and academic—reminded all that finding an answer to the balance question is particularly difficult when even agreeing on what the measuring stick for balance is a contentious debate in and of itself. Clearly, this is one issue that still has a lot of life left in it.

The second panel explored “Collective Licensing: Promises and Pitfalls” and was chaired by Dr. Carys Craig, Associate Professor of Osgoode Hall Law School and member of IP Osgoode. Eric Baptiste, chief of SOCAN and former head of CISAC in Paris, first reminded audience members that collective licensing bodies do a lot of good work. For his part, Dr. Martin Schaefer, a lawyer from Berlin, showed how online music licensing in Europe was currently a mess and urged that Canada find a different system. Prof. François Dessemontet of the University of Lausanne explored corporate governance in collective licensing bodies and presented some targeted ideas for reforming the system to address the worst abuses seen in collective licensing bodies across Europe. On the whole, it became clear that collective licensing bodies still have an important role to play in administering copyright; the question is how to optimally fulfill that role. If there is one thing that all panelists agreed on, it is that there is a lot of tinkering left to do before Europe reaches an ideal collective licensing system.

Session three asked, “Enforcement: Has it a Future?” and was chaired by David Vaver, Professor of Intellectual Property Law at Osgoode Hall Law School and member of IP Osgoode. The presentations began with Dr. Mihály Ficsor, former Assistant Director General of WIPO, who emphasized that enforcement is a system and that “there is no single method for successful copyright enforcement today”; rather, different mechanisms must work in combination with one another. Enforcement is also a two-way street, he suggested. While users must be held accountable for infringing uses, rights holders should not get off freely for knowingly making false or overbroad accusations about infringing activity. For his part, Dr. Giovanni Maria Riccio of the University of Salerno suggested that less reliance on public enforcement systems produces better results for all parties. This is due to the flexibility that the private enforcement mechanisms (which are developed to replace public ones) tend to offer. YouTube’s private copyright enforcement model, where rights holders can choose to either monetize internet infringement (by sharing in ad revenue) or request takedowns of infringing materials, was highlighted as a particularly good example of innovation in copyright enforcement. Finally, Ted Shapiro, of the Brussels office of the Motion Picture Association, brought the industry perspective on the importance of proper copyright enforcement in Europe.

The final panel, titled “Beyond Copyright: Contract and Commerce”, explored copyright-like agreements reached via contract and their uses and impacts in Europe. This panel was chaired by Prof. Victor Nabhan of the University of Nottingham, also President and Chair of the Association Littéraire et Artistique Internationale (ALAI).  Dr. Gillian Black of the University of Edinburgh stacked up fair dealing in copyright law against fair dealing in contract law, concluding that some contracts are used as work-arounds to European exceptions and limitations provisions. When such behaviour harms EU trade, she argued, it should be deemed anti-competitive and dealt with accordingly. Dr. Mindaugas Kiškis, of Lithuania’s Mykolas Romeris University, presented a perspective not all that often heard here in Canada: that of New Member States in the EU, who are, he argued, subject to the same EU copyright obligations without experiencing all of the same benefits as older “EU15” nations. For example, he asked, what are the benefits of signing on to mandatory online music licensing schemes when so little of Lithuania’s music is available there and such systems are not currently available in the national language? To close out the session, Ted Shapiro returned to offer some thoughts on multi-territoriality licensing agreements and their numerous complexities.

The conference concluding with closing remarks from Prof. Victor Nabhan, who summarized the day's highlights and lessons learned with humour, elegance and aplomb.  He reminded us that, "Without authors' proper protection, less work would be accessible and hence less material would be enjoyed."

Throughout the day, debate on issues remained animated during the question and answer sessions between speakers and audience members, and amongst the speakers, too. For example, Dr. Mindaugas Kiškis questioned the statistic proffered by Prof. Silke von Lewinski and Dr. Ficsor to the effect that in Europe there has been only one complaint regarding Technological Protection Measures. Dr. Kiškis noted that users may not be aware that complaints should be addressed to certain bodies, meaning that official statistics may not be reflective of the current situation experienced by users.

In all, the day covered a broad spectrum of issues directly pertinent to the Canadian context. In a world where Canada is negotiating international agreements in which copyright clauses figure prominently (like ACTA and the EU-Canada free trade deal), multi-jurisdictional copyright issues may soon surface as the next hot topic in Canadian IP law. The issue may even surface sooner than expected, given that Bill C-11 proposes the ratification of the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty, which Canada originally signed but has so far failed to ratify; in this light, Europeans’ advice on how to manage multi-jurisdictional copyright negotiations and disputes may well soon be heeded in Ottawa. Looking at the conference as a whole, one thing was clear: regardless of what happens with Bill C-11, Canadians certainly have a lot to learn from Europeans on copyright.