Canadian Coalition for Electronic Rights
 

Today the Canadian Coalition for Electronic Rights joins a growing list of organizations representing creators, innovators, educators, students and consumers to form the Fair’s Fair Coalition. In a public letter to Industry Minister Tony Clement and Heritage Minister James Moore the Fair’s Fair Coalition asked that the first priority of any legislation to amend the Copyright Act should be to transform fair dealing from an artificially narrow defence into a flexible tool to better accommodate Canadians’ expressive and innovative values in a digital age.

We call on the Canadian government to amend the Copyright Act to clarify that:

1. any dealing that may qualify for the defence so long as it is fair, and
2. the enumerated categories of dealings are illustrative of potentially fair dealings, rather than exclusive categories of qualifying dealings.

Tree truths counsel the wisdom of this amendment:

1. Flexible fair dealing advances copyright law’s policy objectives in a digital age.
2. Flexible fair dealing advances Canadian values.
3. Flexible fair dealing is consistent with Canada’s international obligations and the policies of Canada’s major trading partners.

Flexible fair dealing represents the simplest and most comprehensive means of addressing many of the long-recognized short-comings of Canadian copyright law in a technologically neutral way. Flexible fair dealing will fix Canada’s parody problem, at long last legalize fair consumer practices such as time-shifting and consumer backups, and offer greater security to innovators and creators, such as documentary film-makers, who build on the works of others. “The change we ask for is simple and equitable: what’s fair is fair, and should also be legal“.

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.

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.

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.

Straight.com, Vancouver’s Online Source has a featured commentary by The ESA Canada’s Danielle Parr entitled Canada’s video game industry needs copyright law that protects digital locks. Nothing groundbreaking here just the rhetoric and statistical misinformation we have all come to expect from corporate lobby groups trying to scare lawmakers into protecting their flawed and antiquated business models.

“Internet piracy of video-game software in Canada has undergone explosive growth, and we detected a stunning 300 percent increase in the number of games illegally downloaded via Canadian ISPs between 2007 and 2008 (and this reflects but a fraction of the total illegal downloads in Canada detected by the industry as a whole).”

This outrageous statement leads us to ask just how exactly did the Entertainment Software Association of Canada track and detect this “explosive growth” in piracy at the ISP level in Canada? It should be very worrisome to all Canadian consumers that their privacy is being compromised to permit an American lobby group to detect and monitor the flow of illegal downloads passing through Canadian ISPs.

Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.

Simply stated protections for TPMs and DRM do not work and they do not benefit consumers or creators in the ways they are intended to. Protecting TPMs only protects distributors and lobby groups at the expense of consumer access and creative innovation. By failing to bend to an American lobby group such as the ESA one can hardly think that the government of Canada can be seen as “dictating” any particular business model. By remaining technologically neutral and not integrating protection for specific technologies or business models into an amended Copyright Act (e.g. all-encompassing prohibition of circumvention devices and technologies) you end up with a flexible law that can adapt to protect the interests of both creators and consumers.

Given the ESA’s mis-aligned approach to copyright reform, the CCER encourages Canadian lawmakers to not ignore the opinions of typical Canadians as evidenced here. It would appear that The ESA is somewhat of a lone wolf in its desires to protect TPM’s as evidenced by the very low percentage of submissions to the Copyright Consultations that call for similar type legislation. One can only hope that these special interest lobby groups don’t continue to insult our intelligence or taint the media any further with their inaccurate, unfounded and most importantly false claims.

As a consumer of digital media and electronics you stand to be greatly impacted by changes to Canada’s copyright regime. Fortunately, the Government wants to hear from consumers and creators alike so that the interests of all Canadians can be taken into account. Until September 13, 2009 you can participate in the recently launched government consultations on copyright by visiting www.copyrightconsultation.ca and registering for an upcoming townhall meeting, webcast or by making a submission via email.

If we do not voice our concerns en masse we run the risk of having a draconian system of copyright rules imposed upon us. Imagine living in a country where corporations dictate how you consume information and media and utilize technology. Canadians need to speak out against such proposals and push for greater flexibility in the law to provide a balanced, fair approach on digital reforms. To that end, Michael Geist has just launched www.speakoutoncopyright.ca. The site is designed to inform and help foster greater participation by bringing together online discussion (ie. the Twitter #copycon stream), postings, videos, news reports, etc.

The Canadian Coalition for Electronic Rights has also updated its letter wizard allowing you to easily submit your concerns in both official languages directly to the government copyright consultations as well as those minsters responsible for modernizing Canada’s Copyright Act.

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En tant que consommateur de médias numériques et électroniques, vous serez directement affectés par les changements du régime de droit d’auteur canadien. Heureusement, le gouvernement désire entendre la voix des consommateurs et des créateurs, afin que les intérêts de tous les canadiens soient pris en compte. Jusqu’au 13 septembre 2009, vous pouvez participer à la consultation publique sur les droits d’auteur que le gouvernement vient de débuter, en visitant le site http://droitdauteur.econsultation.ca. Vous pouvez aller en personne dans les assemblées publiques ou être présent durant les diffusions en simultané sur le web, ou à tout le moins exprimer votre position par un message ou email.

Si nous n’envoyons pas un message clair au gouvernement en exprimant notre opinion, nous risquons de nous faire imposer un système de droits d’auteur draconien: Imaginez vivre dans un pays où les corporations seraient en mesure de dicter comment vous pouvez utiliser vos médias et les technologies qui s’y rattachent…. Les canadiens doivent se lever pour s’opposer à l’approche proposée dans la réforme des droits d’auteurs, et exiger des lois flexibles pour un obtenir un juste équilibre. À cette fin, Michael Geist a fait le lancement du site www.speakoutoncopyright.ca. Ce site ontient une foule de renseignements et encourage les participants à discuter en ligne (par le flux Twitter #copycon), rapporter des nouvelles, écrire des commentaires, poster des videos, etc.

La coalition canadienne pour les droits numérique a aussi mis à jour la lettre que vous pouvez envoyer en français ou en anglais, directement au comité de consultation des droits d’auteurs et aux ministres responsables de la modernisation des droits d’auteurs canadiens.

Over a year ago, following the introduction of Bill C-61 we posted two videos to YouTube relating to Canadian copyright reform. These videos originally aired on the Business News Network formerly Report on Business TV. One video featured Canadian copyright scholar/expert Howard Knopf squaring off against Stevan Mitchell of the Entertainment Software Association (Howard Knopf Coming To The Defense Of Canadian Consumers – YouTube).

The second video featured professor Jeremy de Beer sparring with CRIA lobbyist, Barry Sookman over the implications of Bill C-61 (Jeremy de Beer & Barry Sookman On Bill C-61 – YouTube). On June 22, 2009 YouTube notified us that these videos had been removed citing a copyright complaint from The Business News Network. One of the notifications from YouTube:

We have received copyright complaint(s) regarding material you posted, as follows:

* from Business News Network about Howard Knopf Coming To The Defense Of Canadian Consumers
Video ID: YFFdSJ1R9ZE

Just a few days prior to our videos being pulled Jesse Hirsh tweeted that YouTube had just pulled one of his videos. A BNN clip which had Jesse taking on a CRIA representative (Jesse Hirsh on RoBTV Regarding BitTorrent – YouTube). What was happening? Was BNN demanding every clip posted on YouTube be taken down or were they targeting clips relating to Canadian copyright reform only? A quick search of YouTube would indicate the latter.

It has been one week since the takedown of three important clips relating to Canadian copyright reform and YouTube still has dozens of live BNN & ROBTV videos (here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here and here).

Given the above evidence one can only assume that The Business News Network’s intended goal is to silence the debate surrounding Canadian copyright reform by suppressing the rebroadcast of clips which may be unfavourable for industry lobby groups. This also leads one to ask if BNN is acting at the request of a third party or at its own discretion. Since it is not evident that BNN is removing ALL of their content from YouTube and since we believe the clips we posted are part of a very important discussion we have reposted the videos:

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UPDATE: Rose Noonan of the Business News Network has provided CCER with clear evidence that BNN is indeed targeting all YouTube content and not just that relating to the Canadian copyright debate. While this is a reassuring development it is at the same time troubling that in a time when many broadcasters are forging partnerships with YouTube BNN has chosen the forced removal of content.

It’s a good thing that Industry Minister Clement and Heritage Minister Moore have emerged as ministers who appear to be understanding of the opportunity offered by copyright reform. Both ministers concluded that they are determined to craft laws and polices and that look ahead rather than behind. It seems there is a role reversal underway in Ottawa as the Liberal Party has now concluded the following:

In relation to a recommendation on copy rights and antipiracy of intellectual property, the Liberal Party of Canada supports the recommendation as follows:

“That the Government of Canada immediately introduce legislation to amend the Copyright Act, ratify the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), amend related acts and ensure appropriate enforcement resources are allocated to combat the scourge and considerable economic and competitive damage to Canada’s manufacturing and services sectors and to Canada’s international reputation by the proliferation of counterfeiting and piracy of intellectual property.”

Now we may know why the Liberal Party was so quiet on Bill C-61, given the above rhetoric, perhaps C-61 was not ‘strong’ enough for their liking. The Liberal Party appears to be mired in the Dion-era, a splintered party that will try any policy direction in a desperate attempt to gain support. As long as Clement and Moore don’t turncoat on their latest indications for policy direction, the Liberals wont get the chance to make lasting copyright decisions anyway.