On September 29th, 2011 the recently re-elected Conservative Government reintroduced the Copyright Modernization Act, Bill C-11 (previously Bill C-32). Given that the Conservatives now hold the majority of seats in the House, the quick and easy passage of this ‘Made In America’ legislation is no more a matter of ‘will it pass’ but a matter of ‘just how quickly will it pass.’

Heritage Minister James Moore has indicated that once Bill C-11 reaches the committee stage, witnesses who appeared before the old C-32 committee will not be heard from again. This despite that fact that there is a new Industry Minister on this portfolio. This move coupled by Moore’s confirmation that the committee will be meeting for extended hours each week and the fact that appeasing the United States has emerged as a bigger Conservative priority than making good on their promise to scrap the wasteful long gun registry.

Although Bill C-11 appears to be more flexible than the previous attempts at copyright reform, this bill is flawed to its core by the inclusion of strict, anti-circumvention provisions. Understandably, Canadians are concerned at how easily their rights are trumped by the overriding protection for digital locks included in this legislation and it is to this effect that the CCER has updated its online letter writing tool. It is essential that Canadians speak out about their concerns with Bill C-11 while it is still open to amendments.

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Even if you have spoken out before, the Government needs to hear your concerns again. Send your letter now and share this tool with your friends, family and co-workers. It is essential that we all speak up now while we have the opportunity.

With the exit of Guy Giorno from the PMO’s office, we are greeted with the arrival of Nigel Wright, who will become the Prime Minister’s new chief of staff, one of the most powerful unelected officials in Canada. Nigel Wright leaves Bay Street as the Managing Director of Onex, the biggest employer in Canada outside of the Government. As the Globe and Mail referenced:

…in the case of Onex, we’re talking about a gigantic, sprawling entity…Some 40 of its companies operate in almost all areas — from health to culture through aerospace and investments. And they generate billions of dollars in sales annually.

But what about Mr Wright’s multi-million dollars worth of holdings in the Cineplex Galaxy Income Fund, the Canadian-based fund engaged in the motion picture industry? Could this perhaps be viewed by some as a conflict of interest considering this Government’s current focus on copyright legislation? Liberal MP Marcel Proulx seems to have taken notice:

Nigel Wright has interests in Cineplex cinemas and in Indigo bookstores. When they talk about copyright next week, will he really plug his ears? Everyone knows the answer. No he will not. Why is the Prime Minister treating Canadians like a bunch of fools?

and the final word goes to the always affable Wayne Easter:

Why are the Conservatives letting Mr. Wright set one foot in the PMO while his other foot is firmly rooted in corporate boardrooms? Where was the Prime Minister’s judgment?

On one side were lobbyists music industry types, trade groups and MP James Moore pitted against educators, a coalition of big tech companies, retail representatives and Canadian consumers. Bill C-32 polarized the Canadian copyright reform debate almost immediately which comes as little surprise, however, what has since transpired in the waning dog days of summer is indeed eye opening.

Call it sober second thought or some iteration of buyer’s remorse, but it is now apparent that the honeymoon effect between lobbyists, trade groups and industry types has run its course. Witness the following:

To summarize, we now have lobby groups doing a 180 and insinuating that Bill C-32 is a perfect fit “for people who want to steal stuff”. Coalitions of content creators, artists and rights holders, and people who work in music, movies, games, books, and software industries flip-flopping and claiming that under Bill C-32 “the situation for creators will grow worse”. And finally Canadian artists breaking ranks to allude that Bill C-32 “pit[s] musicians against fans in order to score political points.

Now that Canadians have had the summer to digest this bill and hopefully sift through the rhetoric, only one nagging question remains – just who likes this purposed copyright reform legislation anymore? Because it is certainly not consumers, educators, retailers, artists, creators, lobbyists, trade groups, industry groups, opposition MP’s and most certainly not the CCER.

It is essential that Canadians speak up about their concerns with Bill C-32 while it is still open to amendments. Even if you have spoken out before the Government needs to hear your concerns. Send your letter now and share this tool with your friends, family and co-workers. It is essential that we all speak up now while we have the opportunity.

The Canadian Coalition for Electronic Rights (CCER) is pleased to see that the Government of Canada has tabled its Copyright Modernization Act (PDF). However, the CCER is deeply concerned at how easily consumer rights can be voided by the anti-circumvention provisions included in this legislation.

Albeit slightly more flexible than the Conservatives’ previous attempt at reforming copyright, Bill C-32 is flawed at its core by the inclusion of strict, anti-circumvention provisions. These anti-circumvention provisions are modeled after those found in the oft-criticized US DMCA (Digital Millennium Copyright Act) and effectively extinguish consumer and creator rights by tipping the balance of copyright law in favour of distributors and antiquated business models.

Bill C-32 includes provisions to address consumer activities such as format and time shifting, however these are all subject to digital locks. For example, consumers would now be permitted expressly by law to rip tracks from a CD into an MP3 and then transfer it their iPod or to make a backup copy of digital content to protect against loss or damage. However, what about consumers who want to watch a new DVD they bought on their iPad? No chance, as all commercially available DVDs employ digital locks and breaking a digital lock is not permitted by C-32 in this instance. Now what if a consumer wants to make a backup copy of a video game to protect their investment from undue wear and tear? Pointless, seeing as a digital lock needs to be bypassed in order to make that personal backup copy playable. According to Bill C-32 both of these reasonable consumer acts would be illegal and subject to penalties of up to $5000.00. So in actuality, the only rights Canadian consumers will get under Bill C-32 are those that the music, movie and game distributors decide they get or what has been aptly referred to as “market forces” in recent discussions surrounding the bill.

A more effective approach to the anti-circumvention provisions that inevitably seem to criminalize consumer activities in Bill C-32, would have been to link the act of circumvention to infringement as the Liberals did in their attempt at copyright reform. This approach is not only WIPO compliant but it integrates a greater deal of flexibility into copyright law by not placing a blanket prohibition on circumvention services, tools and devices. This approach would likely provide the greatest level of balance to Canada’s copyright regime by providing consumers with tangible rights and options rather than provisions that giveth with one hand and taketh away with the other. Such an approach would also ensure that creators are fairly compensated for their work while at the same time provide incentives for future innovation. Unfortunately, ministers Moore and Clement are taking Canada in a different direction. A direction that may appease certain interests in the United States and European Union at the expense of Canadian consumer rights.

Another attention grabbing provision included in Bill C-32 is the legitimization of PVR devices and associated time and format shifting activities. Sounds great doesn’t it? You can now use that PVR you purchased to record your favourite TV shows for viewing at a later date and time without fear of being on the wrong side of the law…for now. This provision is also subject to digital locks (broadcast flags) that will inevitably be used in Canadian television broadcasts that will prevent a program from being recorded to your PVR or cause a recorded program to delete itself after a given period of time. Try to bypass these broadcast flags and you’ll find yourself on the wrong side of the law according to Bill C-32. Going from a consumer to a criminal just by engaging in a reasonable consumer activity will be the direct result of the anti-circumvention provisions in Bill C-32.

Bill C-32 provisions are not all as contentious as the anti-circumvention provisions are, in fact C-32 does take some positive steps forward in the areas of fair dealing, intermediary liability and educational exemptions. The Canadian Coalition for Electronic Rights fully supports Bill C-32’s inclusion of a “notice and notice” approach to internet service provider liability. Meaning that, after being contacted by a copyright holder about a potential infringement, an ISP will be required to notify the customer that he or she may be violating the law. The customer’s personal information could then be released to the copyright holder with a court order.

Bill C-32 is now set to make its way through the parliamentary process and be referred to a committee where it will be reviewed line by line and where hopefully the public can be heard from in a fair and representative way. Industry Minister Tony Clement has made statements in the media indicating there exists an openness to amending Bill C-32 in a way to ensure balance for all sides of the equation. Clement’s continued willingness to engage Canadian consumers in an open dialogue on the copyright issue is rare and presents a unique opportunity that must not be squandered. If Canadians remain silent there is a real possibility that Bill C-32 will become the law of the land in its current flawed form, undermining the reasonable rights of all Canadians with its draconian protection for digital locks. However, if Canadians take the time to engage themselves in this important issue and speak out, Bill C-32 can be fixed and a proper balance in Canada’s copyright regime established in a responsible and sovereign manner.

In the coming days the Canadian Coalition for Electronic Rights will be updating its online letter writing tool to reflect the introduction of Bill C-32 and its worrisome anti-circumvention provisions. Michael Geist has also relaunched Speak Out on Copyright to focus on this bill and encourages Canadians to join the Fair Copyright for Canada Facebook group (to get active) and the Fair Copyright for Canada Facebook Page (to stay updated).

All reports indicate that a Bill to amend the Copyright Act will be introduced in the House of Commons this week, Thursday June 3, 2010 to be specific. It is fully expected that the Bill will include strict anti-circumvention provisions that would criminalize bypassing digital locks to access content, shift format or otherwise preserve consumer rights.

Furthermore, the Canadian Press is reporting that the Government is seeking the support of opposition parties to hold summer hearings on the Bill. Summer hearings would potentially minimize the number of voices heard on this Bill and may be a means of expediting the passage of this Bill into law. Given the latest poll results, it is highly unlikely the Liberals will rock the boat if there’s any chance that this could be a component to triggering an election they so clearly want to avoid.

Remember to send a letter to your MP with this online tool urging them to ONLY support a fair copyright reform bill.

UPDATE: The Canadian Copyright bill has been placed on the Notice Paper which means it could be introduced in the house as early as Wednesday June 2, 2010.

Send your letter now and share this tool with your friends, family and co-workers. It is essential that we all speak up now while we have the opportunity.

In the summer of 2009 the Government of Canada held public consultations on copyright and Canadians engaged in these consultations at unprecedented levels demanding a balance between consumer rights and creator rights. According to Michael Geist, recent developments indicate that these extensive consultations were “little more than theatre”. A very disheartening development indeed.

Indications are that the PMO has had to step in and make a decision on the direction of copyright reform in Canada because the Minister of Canadian Heritage, James Moore and the Minister of Industry, Tony Clement could not come to a consensus. A consensus should have been an achievable outcome given the consultation results. It is further reported that the PMO has instead given the green light on moving forward with anti-consumer copyright legislation within the next 6 weeks. A Canadian DMCA would most likely appease the US Government as well as domestic and foreign corporate interest groups.

Information has also emerged over the span of the last month indicating that James Moore had reversed his balanced approach to copyright and begun arguing for a Canadian DMCA with strong protection for digital locks and a rejection of flexible fair dealing. Tony Clement on the other hand seems to have stayed the course by continuing to endorse a flexible approach to copyright reform that would withstand the tests of time and consider both consumer and creator interests.

The bill is not expected until June, but it will have dramatic repurcussions once introduced. First, the bill represents a stunning reversal from the government’s seeming shift away from C-61 and its commitment to a bill based on the national copyright consultation. Instead, the consultation appears to have been little more than theatre, with the PMO and Moore choosing to dismiss public opinion. Second, after adopting distinctly pro-consumer positions on other issues, Moore has abandoned that approach with support for what may become the most anti-consumer copyright bill in Canadian history. Third, the bill will immediately impact the Canadian position at the ACTA and CETA negotiations, where the bill’s provisions on anti-circumvention and ISP liability will effectively become the Canadian delegation position.

Indications are that this Bill will not be introduced until June but the time to act is now. The CCER has urged Canadians to speak out in the past only to have their voices ignored by the Government of Canada and for this we apologize. However, this is not the time to give up. If you have spoken out before then it is time to speak out again and again if necessary. There is clearly a range of opinions amongst MPs on copyright reform, some anti-consumer and some pro-consumer.

Your MP needs to know where you stand on the issue regardless of your views and even if you have already told them before. A physical letter or email message to your MP, the Prime Minister, James Moore, Tony Clement and Liberal leader Michael Ignatieff is what is needed right now. Also remember to join the Facebook group and the Facebook page and be sure to ask others do the same.

For those wondering what can be done, my only answer is to speak out now. Write a paper letter to your Member of Parliament and send copies to the Prime Minister, Moore, Clement and Liberal leader Michael Ignatieff. No stamp is required – be sure to include your home address and send it to the House of Commons, Ottawa, ON, K1A 0A6. Once that is done, join the Facebook group and the Facebook page and be sure to ask others do the same. You may spoken out before, but your voice is needed yet again.

In what should come as little surprise to industry observers, Canada has again been placed on the USTR Special 301 Priority Watch List for 2010. Perhaps Canadians can take solace in the fact that we’re not in this alone, as all the countries’ populations on the Priority Watch List comprise of approximately 2/3 of the world’s population.

The specific wording of the Canada section of the report is much the same as 2009, with 2010 priorities being:

• Proceed with legislative copyright reforms to update Canada’s copyright laws.
• Address Internet piracy by fully implementing WIPO.
• Improve the IPR enforcement system to provide deterrent sentences and stronger enforcement powers, focusing on border enforcement.

2009 priorities were listed as:

• Promptly and effectively implement key copyright reforms.
• Strengthen copyright laws by implementing WIPO, ASAP.
• Curb the volume of infringing products and their distribution with stronger border enforcement.

At this point, the USTR likely feels like it is flogging a dead horse when it comes to Canada, however, this simply is not the case. As Michael Geist points out, Canada has already taken many steps to deal with the opportunities and challenges of the new digital economy including: declining piracy rates when compared to other Priority Watch List members, sales declines in the recording industry are not as sharp as those in other industrialized countries (i.e. US and Japan), enacting swift anti-camcording legislation, Canada has improved its IP standing with groups such as the BSA and some even have shown Canadian copyright laws to be stronger than the US in certain circumstances.

The USTR Special 301 Report has come under increasing criticism for being tired and out of date, being wrought with procedural and transparency issues and being a tool by which to bully foreign governments with. What’s further dis-heartening this time around is the USTR seemed to ignore the formal input by the Computer and Communications Industry Association (.pdf) whose submission highlighted the following:

CCIA opposes placing Canada on any Special 301 list in the company of nations that genuinely fail to provide adequate and effective protection. Canada’s current copyright law and practice clearly satisfy the statutory “adequate and effective” standard. Indeed, in a number respects, Canada’s laws are more protective of creators than those of the United States.

Canada has made clear its commitment to cultural creativity and to updating its copyright laws as evidenced in the 2008 and 2010 Throne Speeches. The resulting legislation is expected as early as June of this year. The CCER remains confident that the Ministers of Industry and Heritage will recognize the differences between unfair, heavily influenced international reports and Canada’s right to develop legislation that reflect the values, inputs and ideals of Canadian creators and consumers alike.

The participation was unprecedented and we welcomed the comments of rights holders, users, intermediaries and everyday Canadians. We know that Canadians are concerned with copyright and its implications in our increasingly digital environment. This was demonstrated by the thousands of Canadians who took the time to participate in one way or another.

Mr. Owens’ criticisms and accusations represent a direct attempt to discredit and silence the voice of thousands of Canadians who made submissions to the 2009 public consultations on copyright (english submissions, french submissions) using a form letter made available by the CCER. Submissions that may be the contrary view of Mr. Owens’ clients.

The CCER has acted with transparency since its inception. We have always fully disclosed who our coalition members are and what our position (.pdf) is on the future of copyright in Canada. Since the CCER’s position runs parallel with that of many Canadian consumers we have evolved from acting solely as a peer industry coalition to informally include the role of consumer advocate.

The opinions in this article are mine alone, and not those of any entity of which I am a part or which I represent. As a practising technology lawyer I represent organisations with varied interests in intellectual property laws and in regulation (or not) of the Internet. Among them are creators, and those who represent their interests.

Ironically, it appears Mr. Owens did not make a submission of his own to the public consultation he so vehemently criticizes throughout his article. It is difficult to understand why an individual passionate enough to independently invest as much time as was necessary to pen this article and to research and disseminate the substance and mechanism of the consultation never took the time to make known his vision for the future of copyright in Canada publicly.

Copyright and copyright policy are as Mr. Owens states “complex, difficult and counterintuitive” in nature yet copyright affects every Canadian in one way or another. Unfortunately, the majority of Canadians fail to even realize how their lives stand to be impacted by changes to Canada’s copyright regime and the minority that do and want to be heard are intimidated by the vast complexity of the issue. The CCER sought to bridge this gap with a letter writing wizard and help those Canadian’s who wanted to have their voices heard but were reluctant to do so because they feared that alone they could not effectively articulate their ideas and desires for future of Canadian copyright.

The template letter which is the basis for each submission is editable in its entirety allowing submitters to add, remove or modify any part of the letter’s content. The content of the letter itself is far from unreasonable and seeks changes to Canada’s copyright regime that are balanced and equally beneficial to consumers and creators. The eight key points of the template letter are as follows:

1. Oppose an all-encompassing prohibition on the development and manufacturing of circumvention devices and technologies, commercial trade of circumvention devices and technologies, the possession and/or utilization of any device or technology that can circumvent a TPM or DRM for a non-infringing purpose or otherwise lawful activity such as fair dealing, interoperability, time and format shifting.
2. Support an update to backup provisions to include the right to make an archival backup copy to all digital consumer products regardless of format or media.
3. Support a “notice and notice” approach when dealing with the liability of ISPs.
4. Support for limited statutory damages.
5. Support for technologically neutral legislation that does not integrate protection for specific technologies or business models.
6. Support the expansion and protection of fair dealing doctrine.
7. Support the preservation of the current term of copyright.
8. Support for transparency in the negotiations of ACTA to ensure that domestic copyright policy is not circumvented.

Each submission made using the CCER letter wizard is relayed through the CCER mail server to the official consultation email address and that of the Ministers responsible for the copyright file. The CCER also mailed a physical copy of every submission to the responsible Ministers. Mr Owens’ insinuation that because multiple submissions to the consultation originated from a single IP address belonging to the CCER they should be given less consideration or even disregarded as whole is severely misguided.

The majority of the Submissions came from a single IP address (through the CCER letter writing “Wizard”) and many of the Submissions were sent with non-verifiable, incomplete, suspect or anonymous identification.

This assumption would equate to the Government discounting or ignoring physical submissions mailed from within a single Canadian riding that may have been processed by the same local postal station. It is the view of the CCER and should be that of the Government that consultation submissions complete with name and address be considered attributable and representative regardless of origin IP address.

The validity of personal information is another aspect of the consultation brought into question by Mr. Owens. Each submission via CCER required that a Canadian address and postal code be provided, foreign mailing address were not accepted. If the sender provided false contact information along with their submission they could have just as easily done the same in a unique email or physical submission. Therefore, the information must either be assumed to be valid or the information needs to be back-checked by the Government for validity prior to being made public. Perhaps future government consultations could employ the inclusion of a unique identifier such as a SIN number referenced against a submitter’s name to ensure information validity.

We sampled twenty-five percent of the substantive individual Submissions, and of the professional authors, musicians, filmmakers, performers, photographers and designers, more than 90% were in favour of robust copyright protection as a means to secure their livelihood and protect their artistic integrity.

Creators and their distributors are generally more inclined to operate under the doctrine that stronger more robust rights protection is better and therefore necessary so Mr. Owens’ findings are unsurprising. What is revealed in this manipulation of consultation data is that without the submissions sent using the CCER letter wizard there is very little representation of the average Canadian consumer, arguably the most important group in the equation. The opinions of these Canadians deserve to be heard and not simply swept aside and discredited as they bring balance to the debate and a new perspective.

To ensure a high volume of Submissions, the CCER arranged for online forums of “modders” and BitTorrent (peer-to-peer file sharing communications protocol) information sites to encourage their readers to submit the form letter. The majority of the readership of these forums is, of course, non-Canadian.

The elaborate conspiracy that Mr. Owens alludes to between the CCER and “various BitTorrent” sites is simply not true. The CCER made press releases relating to its position and various sites picked up on this and proceed to link back to the CCER letter wizard. Some sites even employed geo-targeting to ensure that only Canadian visitors were served links and or content relating to the CCER. The CCER has no formal affiliation, agreement, or for that matter any interest in any “BitTorrent site”.

Instead of unfairly demonizing the CCER and generating the impression its letter writing wizard threatens the copyright consultation process, the CCER believes all interested parties would do well to focus the debate on amending Canada’s copyright laws for the better. A constructive and cooperative debate would better serve all Canadians and would bring about copyright laws and guiding principles that strike a balance whereby the rights of consumers and creators are considered.