What Can Canada Learn from Israel about Copyright Reform?
This post originally appeared on the UofT Faculty of Law Blog on Dec. 8, 2007. Since it’s still relevant, I’m posting it again.
A bill entitled Bill entitled “An Act to amend the Copyright Act” is likely to be handed down next week. While the bill itself is probably drafted already, its content will be deliberated in Parliament. Therefore, Canadian policymakers may wish to consider looking at the new copyright act which the Knesset, the Israeli parliament, passed last month (downloadable here, in Hebrew; English translation now available here). There are at least two reasons to look at Israel’s new act: one is to consider the approach taken by the Israeli legislators to many copyright issues that are relevant to Canada. A second reason is that despite the geographic distance, the two countries share a common copyright heritage. Until last week, Israel’s copyright law was principally based on the UK Copyright Act of 1911, the same statute after which Canada’s first home-made copyright act was modeled in 1921.
Here are a few issues that may be relevant to the upcoming debate in Canada:
Perspective: Copyright lobbyists (as well as government officials) often argue that Canada must modernize its copyright law lest it stay behind on the technological and cultural front. A little Israeli perspective could help, especially when one recalls that Canada has overhauled its copyright act a few times over years, with significant reforms only a decade ago. If you had to name a developed country that unquestionably needed to modernize its copyright legislation, Israel was that country. The patchwork of statutes based on the UK 1911 act surely needed to be replaced with a modern statute. Nevertheless, despite its antiquated legislative framework, Israel has emerged as a technological and creative powerhouse. Being the world’s 100th smallest country, with less than 1/1000th of the world’s population, Israel has the world’s second highest per capita of new books; it produces more scientific papers per capita than any other nation by a large margin – 109 per 10,000 people. In proportion to its population, Israel has the largest number of startup companies in the world. In absolute terms, Israel has the largest number of startup companies than any other country in the world, except the U.S. (3,500 companies, mostly in hi-tech), and has the highest concentration of hi-tech companies in the world — apart from the Silicon Valley, U.S. (see more interesting facts here). This, of course, doesn’t imply that Canada should not reform its law when appropriate, it only suggests that arguments about the urgent need to “modernize” its copyright law should be taken with a grain of salt, especially when modernize is used as a synonym to expanding existing rights.
True common law approach: Israel’s new act is rather slim. It contains 5546 words, compared to more than 35,000 in Canada’s. True, English tends to use more words than Hebrew, and certain issues (such as broadcasters’ and performers’ rights) are included in the Canadian act but are covered by separate statutes in Israel. But still, Israel has chosen to refrain from legislating very detailed arrangements. Instead, it preferred a more principle-based approach, which delegates the tasks of interpretation and adaptation of the law to specific cases and technological developments to the courts.
Consider for example educational uses. Canada’s act has an entire chapter on permitted uses by educational institutions. The chapter is full of very detailed exceptions to infringement accompanied by exceptions to the exceptions, the reading of which often resembles reading the Income Tax Act and its regulations. Israel decided to avoid such legalese. Instead, it created a new general “fair use” exception, which includes, among others, uses by an educational institution for training and examination. It decided to let the courts determine over time the exact scope of this exception on a case by case basis. The importance of this new fair use provision goes, of course, beyond educational uses.
Fair Use: Under the old act, Israel had a “fair dealing” provision, very similar to that of Canada. Under that old regime, in order not to be infringing, a particular dealing with a work needed not only to be “fair” but also to be for one of the enumerated purposes mentioned in the act. Like in Canada, the courts viewed this list of allowable purposes as exhaustive. Although in 2004 the Supreme Court in CCH v. LSUC mandated that fair dealing, as an integral part of a balanced copyright regime, requires “large and liberal interpretation”, the exhaustive nature of the allowable purposes has caused various distortions. First, it creates unnecessary rigidity by excluding uses which may be fair and desirable, but do not fall under any allowable purpose. Second, it encourages courts seeking to avoid this rigidity to stretch the meaning of the allowable purposes to cover dealings that may not necessarily be compatible with their ordinary meaning.
The new Israeli act changed that and adopted an open-ended flexible approach à la the US fair use defense. The new s. 19 reads as follows:
(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic report, quotation, or training and examination by an educational institution.
(b) In determining whether the use made of a work according to this section is a fair, the factors to be considered shall include, among others:
1) the purpose and character of the use;
2) the character of the work used;
3) the scope of use, qualitatively and quantitatively, in relation to the work as a whole;
4) the effect of the use upon the value of the work and its potential market.
(c) The Minister may make regulations proscribing conditions under which use will be deemed fair.
This approach for fair use has worked fine for the US for decades. Last year, the Gower Review recommended that the UK move in the same direction. Israel did so last month. Canada should do the same.
Parallel Importation: As is quite evident from last August decision of the Supreme Court in Euro-Excellence v. Kraft the question of whether copyright law can be invoked to prevent parallel importation has always been a messy one. If you recall, in that case a majority of the Supreme Court believed that Kraft could not prevent the parallel impartation of chocolate bars, but they could not agree on why. Israel decided to adopt a much more elegant and simple solution: to make it clear that parallel importation of copyrighted works is permissible as a matter of copyright law; that the copyright act should not be used to erect barriers to competition.
S. 1 of Israel’s new act defines the term “infringing copy”. The definition includes the importation of a copy that would infringe copyright if it had been made in Israel (similar to Canada’s “hypothetical infringement” test with which readers ofEuro-Excellence will be familiar). However, the definition clarifies that a copy made outside Israel under the authority of the copyright owner in the country where it had been made, will not be considered an infringing copy. Elegant and simple.
No Anticircumvention: One of the most controversial issues in the forthcoming legislation is going to be the legal protection against the circumvention of technological protection measures for copyright works. Like Canada, Israel is a signatory to the 1996 WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which require their members to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used by right holders to restrict restricts certain acts not authorized by the right holders or not permitted by law. Like Canada (and many other OECD countries) Israel has not ratified the treaties, meaning that it is under no international obligation to comply with the Treaties.
Not ratifying the Treaties has not prevented Israel from complying with their requirement to enact a “making available” right. But interestingly, Israel’s brand new copyright act contains no anticircumvention provisions. The Israeli government has taken the view that at the moment, anticircumvention legislation does not seem to be urgently necessary and Israel would benefit from further studying the need and potential effects of such legislation. Therefore, the Ministry of Justice decided to conduct a separate public hearing about whether and when such legislation should be enacted. This, of course, will influence Israel’s decision whether or not to ratify the Treaties.
Israel’s new act has revealed its copyright priorities. Overall, Israel decided to increase the flexibility of its copyright law and make it more open and friendlier to users, educators and innovators. It decided to reduce the ways in which copyright law can work to restrict competition. For the time being, it decided not to enact anticircumvention rules that have the potential to work in the other direction. This choice is compatible with Israel’s innovative and creative record. This choice is essential for a small economy whose citizens’ brain is the only natural resource. Canada should seriously consider doing the same.