In the absence of data, scholars, legislators and other stakeholders are forced to grope in the dark about what copyright reform has wrought.

Here’s a dirty secret about copyright reform in Canada: we know remarkably little about its effects.

Now, that’s not to say that we know nothing about copyright reform. People know what they believe about how copyright reform should unfold. They know their own preferences and dispositions. They know their preferred arguments. They might have access to anecdotal evidence from their own experiences or from those of their colleagues, friends or clients. But systematic, valid, testable, deep and broad data about what copyright reform has wrought? Sorry. Not something we sell here.

The preamble to the Copyright Modernization Act, passed in 2012, stated that one of the government’s purposes in implementing the amendments was to promote “culture and innovation, competition and investment in the Canadian economy.” Those sound like laudable goals. So, did the 2012 reforms promote “culture and innovation, competition and investment”? Or even any one of those things? In the last five years, has Canada generated more or better culture, innovation, competition or investment? If the answer to any of those items is yes, is there any evidence that the increase is attributable to the changes contained in the Copyright Modernization Act?

To an astonishing extent, copyright law reform in Canada proceeds on a tide of anecdote. Little if any empirical information on the effects of copyright reform is systematically collected and disclosed by the government. We have very little idea of whether or how creators and innovators respond to granular changes in copyright law, or even of how much they are aware of changes to copyright law. The 2012 amendments to the Copyright Act introduced a variety of provisions that seemed targeted at incentivizing creativity, or at least removing possible disincentives to creative activity. Other amendments were intended to promote productivity and innovation. The extent to which any of the new provisions have succeeded is seemingly unknown.

For example, the “user-generated content” (UGC) provision in section 29.21 of the Copyright Act — often referred to as the “YouTube” or “mash-up” provision — allows individuals to create and disseminate, without fear of liability for copyright infringement, noncommercial content using pre-existing copyright-protected works. The provision was both hailed as innovative and decried as ill-conceived. Five years later, what has been the actual, measurable effect of the UGC provisions? No one seems to know. Were more mash-ups created by Canadians after the introduction of the UGC provision? Fewer? About the same? Were people too confused by the provision to make use of it? Did it have a negative impact on the interests of content owners? It would appear no one has the faintest idea.

This gap should be anomalous in a world of “big data,” where so many fields of human endeavour are witnessing systematic efforts to collect and analyze large amounts of information.

Part of the challenge is that creativity, by its nature, does not lend itself to bulk data collection. We have no obvious and cost-effective way of knowing or tracking when someone creates something that attracts copyright protection. The contrast with the patent system is instructive. Because inventions must be registered and disclosed in order to receive statutory protection, patent registries provide a rich dataset for analysis, and a robust body of academic literature has developed, particularly in the United States, examining the impacts of various changes to patent law. But because the Canadian copyright regime does not require registration in order for copyright to exist or be effectively enforced, how well the pattern of registrations reflects creative activity seems impossible to discern, and the relationship between registrations and reform is even more speculative. The type of activity that results in works protected by copyright may appear too diffuse and idiosyncratic to permit easy datafication. However, it is not difficult to envision curated sets of other data that might act as proxies, however imperfect, for creative activity: the number of books published, the number of films and songs released, social media activity, the volumes of turnover and investment in the Canadian cultural industries.

Of more immediate salience, even the information about copyright that is collected by the Canadian Intellectual Property Office (CIPO) is curiously opaque: CIPO’s 2016 Intellectual Property Canada Report simply excludes any copyright data that CIPO has collected (because the data “does not provide a complete picture on the use of this type of IP”). The information that CIPO does make available breaks down applications by language and province of origin but does not, for example, indicate the types of works being registered. There seem to be obvious opportunities for opening up the data that are currently collected and making them publicly accessible for interrogation.

Our government also does not appear to engage in any collection or dissemination of qualitative work related to copyright. Although there are limitations to data collected by surveys and interviews, a dataset that assembles in a credible, reliable and consistent manner the reactions or views of individuals and firms on actual or proposed changes to copyright law would be valuable to scholars and policy-makers.

In the absence of data, scholars, legislators and other stakeholders are forced to grope in the dark about what copyright reform has wrought and whether assertions made by interested parties are factually supported. We have, at best, incomplete understandings of how copyright law affects cultural expression and how well particular reforms in the past have achieved their purported goals (or even whether they have had any impact whatsoever). Without common factual underpinnings, the copyright debate can quickly become hostage to the vagaries of lobbying budgets, emotions and appeals to assumptions. Debates about copyright reform often begin grounded in principle, reflecting clashes between competing political commitments. Without data to give structure to the debates, they risk never moving beyond those initial philosophical contests.

This is not an easy problem to solve. It is not clear, for example, that there is any market value in collecting the type of data that is required, and so the private sector is unlikely to do the job. While there is little political upside to paying to gather these data, governments have a duty to engage in evidence-based decision-making when it is appropriate. We’ve already lost five years in which systematic efforts to track the effects of copyright reform could have been carried out. In the 2017 assessment of the Copyright Act, we should do the work of identifying what would constitute “success” in copyright reform, and Parliament should mandate funding to collect and disseminate the data that speak to the identified criteria. At the heart of our efforts to reform copyright should be a robust commitment to relevant data collection and dissemination. Thus far in our copyright reform debates, we are peering through a glass, darkly; mandated systematic data collection and disclosure could provide us a clear window through which to view the past of copyright reform and therefore its future.

This article is part of the Reviewing Canadian Copyright Policy special feature.

Photo: Shutterstock/3dkombinat

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