Yesterday’s Throne Speech clearly indicated that the Government plans on “strengthening laws governing intellectual property and copyright“. When we see the words strengthen and copyright in the same sentence we automatically think of legislation that sacrifices the rights of consumers, creators and researchers in favour of specific technologies and business models. After all, Canadians are well within the realms of sanity to react so sceptically given previous attempts at copyright reform, specifically Bill C-61 (The Canadian DMCA).
However, along comes the Minister of Industry himself indicating our dire assumptions may be presumptuous. Following the Throne Speech, Tony Clement appeared on CTV’s Powerplay and offered a glimmer of hope to balanced copyright reform sceptics. When asked if moving forward on copyright reform was a tradeoff for putting the “buy American” issue to bed Clement responded:
I’ve been pretty clear to the Americans and in my public statements that we are moving ahead with copyright reform. The key is, from the American perspective, they want us to be part of WIPO, which is an international treaty on protecting intellectual property. We don’t have a problem with that, but we’re going to do it in a made-in-Canada way. We’re not just going to take what the Americans are doing or what the Europeans are doing. We are going to fit it to the Canadian context and I think that is the right thing to do.
Given this refreshing dialogue, it appears that Tony Clement may actually fully understand the copyright file and the implications that modernizing the Copyright Act will have on Canadians. Hopefully Clement can parlé his encouraging views into legislation. It is going to be an uphill battle especially given the immense amount of lobbying that will be taking place in Ottawa over copyright. In fact it would appear that the industry lobbyists have already resorted to pulling out their big guns for this showdown:
Surprise memo of the month from my staff: “U2’s manager Paul McGuinness wrote you. Bono wants to talk to you about copyright”
A tweet from James Moore (the second half of the copyright reform file) this morning indicates that he received a request from U2’s manager to speak with Bono about copyright. Yes, the same Bono that wrote the infamous New York Times op-ed about saving the world by ratcheting up protection for intellectual property.
Yes Canada, it’s like déjà vu all over again. This Government has once again committed themselves to tackling this pesky copyright thingy. In today’s Speech from the Throne it took Governor General Michaëlle Jean just 14.5 minutes out of 60 some-odd minutes to mention copyright and the direction this Government will take to update Canada’s Copyright Act:
To fuel the ingenuity of Canada’s best and brightest and bring innovative products to market, our Government will build on the unprecedented investments in Canada’s Economic Action Plan by bolstering its Science and Technology Strategy. It will launch a digital economy strategy to drive the adoption of new technology across the economy. To encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada’s prosperity, our Government will also strengthen laws governing intellectual property and copyright.
In terms of copyright and its implications, this was essentially a carbon copy of the Speech from the Throne delivered by this same Government on Nov. 18, 2009.
With approximately 100 sitting days scheduled for the House of Commons to be in session before the summer recess, one gets the inkling that Canadians are going to see an Act to Amend the Copyright Act hit the Order Paper and most likely First Reading before the MP’s retreat to the summer BBQ circuit.
When it comes to copyright reform in Canada battle lines have been clearly drawn, on the one side we have the ‘blame Canada’ corporate lobbyists, shills and lawyers versus those of sound mind, i.e. consumers, esteemed members of academia, lawyers with sound reasoning and tech industry coalitions. Just who truly has the ear of Government will remain to be seen in the next 100 days and beyond. However, if Bill C-60 and Bill C-61 are any indications consumers are going to be in for a rough ride as distributors will continue to push for locked down content and legislation to protect their imposed locks.
Even if this government comes to its senses and crafts a truly balanced copyright bill, Canada, and the rest of the developed world for that matter, have the Anti-Counterfeiting Trade Agreement (ACTA) looming over their heads. This secretly negotiated trade agreement represents a particularly vile form of policy laundering that if enacted, threatens to override Canada’s domestic copyright policy, reformed or otherwise. ACTA seeks to provide an unprecedented level of control to ISP’s, pseudo-law enforcement and content distributors to dictate how, when and where consumers can access content and associated products in the high tech economy. Yes, folks be afraid, be very afraid.
As if the pressure from US based lobby groups and trade organizations like the USTR and the MPAA wasn’t threatening enough to Canadian sovereignty, it now appears that the European Union has decided to throw its weight around in an effort to influence Canadian policy. Canada and the EU are in the midst of negotiating the Comprehensive Economic and Trade Agreement (CETA). The virtues of such Agreement are being bestowed by Industry Canada as:
Liberalizing trade in goods and services could bring a potential 20% boost to bilateral trade and GDP gains of up to $12 billion (or €8.2 billion) for Canada by 2014. A CETA with the EU could deliver commercial benefits across many goods sectors, including aerospace, chemicals, plastics, wood products, aluminum, fish and seafood, light vehicles and automotive parts, and agriculture products such as wheat, beef, and pork; it could also deliver benefits across services sectors such as transportation, engineering and computer services. The study also shows potential for enhancing the relationship in areas such as investment, labour mobility, regulatory cooperation, environment, and science and technology.
However, as the omnipresent Michael Geist and The Wire explain, the devil is in the details. While this new trade agreement may indeed be beneficial to boosting bilateral trade and providing all the economic advantages that come with it, it also provides a conduit to shaping and influencing Canada’s domestic IP polices. A recently leaked document outlines plans for increased political pressure against Canada and dismisses the 2009 consultations on copyright as a “tactic to confuse”.
Now a second document has leaked, though it is not currently available online. The Wire Report reports that an EU document dated November 16, 2009, features candid comments about Canada and the EU strategy. The document, called a “Barrier Hymn Sheet” leaves little doubt about the EU’s objective:
“Put pressure on Canada so that they take IPR issues seriously and remedy the many shortcomings of their IPR protection and enforcement regime…”
The document states that the trade negotiations are a “unique opportunity [for Canada] to upgrade its IPR regime despite local anti-IPR lobbying.” It includes an assessment of recent copyright reform efforts, noting that two bills have died due to “political instability.” The document adds that the copyright reform process was revived in 2009 with the national copyright consultation, but notes dismissively it may have been a “tactic to confuse.”
The Canadian Coalition for Electronic Rights is proud to announce that Canadian video game developer Battlegoat Studios has become a coalition member.
BattleGoat Studios is a Canadian Software Developer committed to developing leading edge “Intelligent Strategy Games” for the PC…the team firmly believes that Strategy Gamers are looking for more sophisticated games that also remain fun to play. BattleGoat insists that their approach to development will always emphasize an accurate, heavily researched environment assuring players an entertaining and immersive gameplay experience.
Founder and lead developer George Geczy has been very open and frank when discussing copyright reform in Canada as evidenced by his Copyright Consultation Submission. As a successful and independent Canadian game developer, Geczy felt it imperative to directly address The Entertainment Software Association of Canada to make it clear that their anti-consumer views on copyright are not representative of BattleGoat Studios’ views or that of many other small and mid-size Canadian developers. Geczy continued:
Your comments and proposals completely disregard the final consumer – the video game purchaser and player – and the fact that they, too, deserve certain rights in a fair system. Rights
such as the ability to continue to play a game after a user’s system has been upgraded or replaced; the ability to backup a PC game to protect from system failure; the ability to continue playing a legally purchased game after a publisher goes out of business and the ‘authentication’ server is taken off line; and so on. Your insistence on anti-circumvention legislation for Canada is a direct assault on the very customers who buy video game products.
The addition of independent game developer, BattleGoat Studios, to the Canadian Coalition for Electronic Rights galvanizes the calls from Canadians for fair and balanced copyright reforms that maintain technologically neutrality. A reformed copyright regime that takes into careful consideration the rights of consumers as well as creators. A framework that will not be trumped by international trade agreements negotiated in complete secrecy without public consultation or consideration.
After less than a month in office the new US Ambassador to Canada wasted little time re-hashing the stereotypical view of Canada and its supposed lax copyright laws. Speaking at a conference in Montreal on Canada-US relations, David Jacobson indicated that Canada deserves its position on the USTR’s Priority Watch List for not legislating copyright reforms dictated by the US (read: lobbyists, corporations).
Considering Mr Jacobson’s litigious past, he spent over 30 years at the prestigious Sonnenschein Nath & Rosenthal LLP, one shouldn’t be too surprised by his rhetorical salvo against Canada and its copyright laws. Canadians can expect more of the same from Mr Jacobson and his office. It just remains to be seen whether the Harper Government will choose to amend Canada’s Copyright Act in a manner consistent with Canadian’s views and ideals or the bullying tactics of US litigators, lobbyists and trade groups.
Sonnenschein’s Intellectual Property & Technology Practice includes an active and extensive international trademark and patent practice. The firm has established a network of foreign counsel—local intellectual property practitioners in countries around the world—who provide vast and wide-ranging expertise in the laws of the countries in which the firm’s clients conduct business, source manufacturing, distribute products or chase infringements and counterfeits.
It seems Mr Jacobson’s message is getting through to Canada’s monopolistic-like media outlets and their mis-informed editors. I would invite Mr McKenna and other interested readers to inform themselves with this well written piece at TechDirt. Or if you prefer a well researched piece containing actual statistics and numbers, read here.
CBC’s This Hour Has 22 Minutes offers its take on Canadian copyright reform as they explore the historical struggle between technology and the content industry.
Since its introduction in April 2009 Bill C-27, the Electronic Commerce Protection Act (ECPA) has attracted significant attention from the copyright lobby. Lobbyists have been attending committee hearings and working with Liberal and Bloq MPs to forward their agenda. The ECPA is aimed at deterring the most dangerous forms of spam, such as identity theft, phishing and spyware, from occurring in Canada however the copyright lobby fears that the current wording of the Bill will hinder their questionable use of DRM and potential for electronic surveillance.
Bill C-27 would strike a serious blow to DRM by requiring consent be obtained prior to installing software on a computer.
The DRM concern arises from a requirement in the bill to obtain consent before installing software programs on users’ computers. This anti-spyware provision applies broadly, setting an appropriate standard of protection for computer users. Yet the copyright lobby fears it could inhibit installation of DRM-type software without full knowledge and consent. Sources say that the Liberals have introduced a motion that would take these practices outside of the bill. In its place, they would define computer program as, among other things, “a program that has as its primary function…inducing a user to install software by intentionally misrepresenting that installing that software is necessary to safeguard security or privacy or to open or play content of a computer program.” This sets such a high bar – primary function, intentional mispresentation – that music and software industry can plausibly argue that surreptitious DRM installations fall outside of C-27.
Even more startling are the changes to Bill C-27 being sought after by the copyright lobby which would effectively permit copyright owners to secretly access information on users’ computers.
PIPEDA currently features a series of exceptions to the standard requirements for obtaining consent for the collection of personal information (found in Section 7). Bill C-27 includes a provision that bars those exceptions in cases involving computer harvesting of email addresses and the “collection of personal information through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed without authorization.” In other words, email harvesting and spyware would not be permitted and would not qualify for the PIPEDA exceptions found in Section 7.
The copyright lobby is deeply concerned that this change will block attempts to track possible infringement through electronic means. The Section 7(1)(b) exception in PIPEDA currently states that collecting personal information without consent or knowledge of the individual is permitted if it is reasonable to expect that the collection “would compromise the availability or accuracy of the information” and the collection is “related to investigating a breach of an agreement or a contravention of the laws of Canada.”
The committee’s “clause by clause” review of the Bill was to be conducted today however it appears that intense lobbying pressure was successful in securing an adjournment until Wednesday October 21, 2009. The Canadian Coalition for Electronic Rights urges you to use the next 48 hours and write to Industry Minister Tony Clement and other members of the committee and demand they reject changes to Bill C-27 that would support the clandestine deployment and use of DRM or changes that would leave the door open to “private surreptitious surveillance”. Other committee members include:
Unfortunately the search function on the official Government website for copyright reform has been broken since the day the site launched. The Canadian Coalition for Electronic Rights is proud to announce the launch of its own copyright consultation search tool aimed at filling this void.
Our copyright consultation search engine is currently limited to searching official submissions however we plan on adding the ability to search submissions and discussions independently as well as viewed cached pages of the Government website in the coming days.
It appears that the American arm of the Entertainment Software Association (ESA) is keenly interested in ‘circumventing’ Canada’s domestic copyright regime, reformed or otherwise, by employing the controversial Anti-Counterfeiting Trade Agreement (ACTA). On September 23, 2009 a meeting of the U.S./EU IPR Enforcement Working Group took place in Washington DC, attended by the old guard: private sector industry reps and lobby groups. The listed objectives were as follows:
- To promote enforcement
- To fight piracy and counterfeits
- To promote public & private partnerships on piracy and counterfeits
Both the U.S. and EU governments and industry representatives shared concerns on IPR enforcement in Canada. ESA representatives went on to suggest that ACTA be used as a means of “raising the bar” in Canada to force Canadian government to respect TPMs and uphold its IPR commitments. U.S. representatives responded by stating that they expect all parties involved in ACTA to uphold the provisions put forth in the agreement, and will not accommodate the “lowest common denominator.”
It now appears that even if Canada modernizes its copyright regime to meet its international obligations, ACTA could be used to ‘circumvent’ domestic copyright laws and tip the balance between consumer and creator rights in favour of distributors, lobby groups and litigious-happy lawyers. While the Canadian government has been open with their public consultations on copyright reform, Canadians are left wondering how and why ACTA, an agreement which threatens to supersede the domestic Copyright Act, is so secretive and non-transparent.
With less than 5 days remaining in the Canadian Government’s consultations on copyright reform (ends Sep 13, 2009) all Canadians are encouraged to speak out this crucial issue now while the opportunity exists. To that end the Canadian Coalition for Electronic Rights has updated its position on copyright reform in Canada (PDF). This position statement has also been formally submitted to the consultations on copyright reform.
