Canadian Coalition for Electronic Rights
 

In the ominous course of exactly one year to the date, what may have once been regarded as the best of times (June 22, 2009) has morphed into what can be classified as the worst of times (June 22, 2010). What was once the age of wisdom, is now the age of foolishness. Witness what has become of MP James Moore and his copyright reform ideals as evidenced in this video. It was one year ago at Canada’s Digital Economy: Moving Forward conference hosted by Industry Canada in Ottawa that Minister Moore reached out and appealed to a broad cross section of attendess for their input and ideas for copyright reform. As Moore so eloquently stated:

The future is now, it is coming and it is remarkable…never has their been a better time to be alive than right now…it’s not only Michael Geist twittering in real-time to his universe of people who care about copyright…the opportunities in front of us are remarkable…the average age of a Member of Parliament is 55, but those under the age of 25 are consuming more media than ever before, you’d be surprised the number of MP’s who’ve never held an iPhone…the old way of doing things is over and it’s great and it’s never been better and we need to be enthusiastic and embrace these things. Don’t assume that those that are making the decisions and driving this debate understand all the dynamics that are at play here and how great this can be for Canada…the opportunities are unbelieveable and are unparalleled in human history

Very heartening and encouraging words from Moore a year ago. Moore stresses that MP’s, those making the decisions and reforming copyright law do not fully understand the technology and the influence it has on every facet of Canadian lives. As Moore indicates, the old way of doing things is over and it’s great and we need to be enthusiastic and embrace these things. What a difference a year makes, witness Minister Moore a year to the date:

Those absolutists out there, who are babyish in their approach to copyright legislation who think that any idea that copyright reform would be an attack on individual citizens are people who frankly don’t get…Don’t fool yourself. These voices that are out there, these people that are out there who pretend to be experts that the media cite all the time. They don’t believe in any copyright reform whatsoever. They will find any excuse to oppose this bill, to drum up fear, to mislead, to misdirect, and to push people in the wrong direction and to undermine what has been a meaningful comprehensive year-long effort to get something right…Those people out there who try to pretend that they are copyright experts and they want to amend copyright in a meaningful way, don’t be fooled by some of these people. They don’t believe in any copyright. They don’t believe in individuals’ right to protect their own creations…Make sure that those voices who try to find technical, non-sensical, fear-mongering reasons to oppose copyright reform are confronted every step of the way and they are defeated.

Minister Moore has gone from encouraging broad participation and input regarding copyright reform to casting most critics of his brand of copyright reform as “radical extremists” As the omnipresent Michael Geist alludes, is Minister Moore referring to these groups which include MP’s, consumer groups, university teachers and students, library groups, business/trade groups and retail groups. So this begs the question Mr Moore: Why should Canadians now not speak out on copyright and rely only upon MP’s (who as you’ve alluded average in age over 55) to spoon feed consumers of technology (those under 25 consume the most technology) new laws that will dictate their everyday activities? Why must we ensure that those who “oppose copyright reform are confronted every step of the way and they are defeated?”

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.

Ubisoft is set to receive a government grant to the tune of $263 million to set up a new game design studio in Toronto. Touted by the Ontario Government as a shift toward more high tech type jobs and projected to add as much as 800 jobs over the next 10 years, however, a number of questions linger. Ubisoft reported a profit last year of $111.5 million, but the Ontario Government feels it can justify sinking $263 million into this company?

We invite you to draw your own conclusions from the above but do not ignore the fact the Ubisoft is committed to substantial investment and operations in Canada. This then leads to our next question; if Canadian IP laws are really as lax as the ESA, CRIA, CMPDA and IIPA claim them to be, why would one of the largest and most respected games studios in the world want to expand operations and continue investmenting in Canada? After all, the International Intellectual Property Alliance claims:

Canada, virtually alone among developed economies in the OECD, remains almost entirely out of compliance with the global minimum world standards embodied in the Treaties…To underscore U.S. insistence that Canada finally take action to address the serious piracy problem it has allowed to develop just across our border, and that it bring its outmoded laws up to contemporary international standards, IIPA recommends that Canada be elevated to the Priority Watch List in 2009.

So does Ubisoft just have a backwards business model? Would a prominent, well regarded and growing video game developer really expand in a country where apparently piracy is the “scourge” causing “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.” Someone is clearly feeding the Canadian public and politicians false information. I would hedge my bets on Ubisoft having this one right and the lobbyists, special interest groups and lawsuit happy IP lawyers continuing to lack real world examples to back their outrageous blame Canada claims.

The Entertainment Software Association of Canada (ESA) recently hosted a video game night in Ottawa. The move was an effort to lobby the government to quickly re-introduce copyright reforms in Canada. Although not against copyright reform, the CCER is against imbalanced and poorly researched copyright reforms influenced by those who flex the biggest corporate muscle to the powers that be.

The ESA went on to say they want a bill to ‘outlaw mod chips…They’re illegal in virtually every other country.’ Illegal in virtually every other country? Perhaps only two countries (USA, UK) have updated copyright laws that may address so called mod chips, and even in those countries the ambiguity of applicable laws cloud the legality. Furthermore, the nonuniform interpretation of applicable laws and constant profound changes and amendments to copyright law do not allow for a definitive statement on the legality of so called mod chips. The ESA is again pushing the government to too quickly enact copyright reforms by using inaccurate and biased reports and findings instead of relying on data obtained via meaningful consultation with Canadian consumers and creators.

Once again, the CCER encourages this government to introduce copyright reform legislation once the appropriate balance between the rights of the creators and the rights of the users has been achieved.

Yes, it has been 10 years since the US enacted the now infamous DMCA into law. One is left to wonder if those Senators that unanimously passed the Bill and William Jefferson Clinton really understood the long-term implications that this would play in people’s electronic lives. The EFF has completed its whitepaper entitled ‘Unintended Consequences: Ten Years under the DMCA‘ described as follows:

This document collects reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors.

Video gamers have been on the receiving end of the DMCA’s wrath when using circumvention devices to to play archival backup copies and play foreign games by over-riding manufacture installed ‘region codes.’ Although video game console manufacturers have the right to geographically segregate its products and protect its intellectual properties, the manufacturer themselves should bear the cost of this chosen business model. Instead game console manufacturers have exploited the DMCA to protect its corporate interests and antiquated business models.

As for Canada, certainly 10 years of unintended consequences will be an eye-opener for the newly strengthened, ruling Conservative Government. The inevitable iteration of this DMCA for Canada must take seriously the warnings of the EFF and the like and not treat consumers, innovators and researchers as pirates. I’m reminded of the old adage ‘If We Don’t Learn from History, We’re Doomed to Repeat It.’ Surely the well-educated decision makers in Industry and Heritage are well versed in their history lessons…aren’t they?

As Stephen Harper tries to stem the tide of his waning support, we finally see the much anticipated Conservative platform. (Yes Mr Layton, it’s not under his sweater vest anymore). Although littered with the usual political jargon and electioneering, the Fair Copyright for Canada group, and for that matter all Canadians should pay particular attention to Page 14:

“A re-elected Conservative Government led by Stephen Harper will reintroduce federal copyright legislation that strikes the appropriate balance among the rights of musicians, artists, programmers and other creators and brings Canada’s intellectual property protection in line with that of other industrialized countries, but also protects consumers who want to access copyright works for their personal use.

We will also introduce tougher laws on counterfeiting and piracy and give our customs and law enforcement services the resources to enforce them. This will protect consumers from phoney and sometimes dangerous products that are passed off as reliable brand-name goods.”

So where does this leave us? Unless Dion can continue to pull the entire rabbit out of his hat and gain additional seats or if hell freezes over and the left can find some way to form a coalition, we’re going to be right back where we left off. A Conservative minority government with lobby and special interests calling the shots. All right Geist et al looks like after a short reprieve we’re heading back into the fire.

Reading through the Conservative rhetoric lately as portrayed in the media, one is left to wonder whether Stephen Harper and Peter Van Loan are on the same page. On the one hand, the Right Honourable Prime Minister says he he will not govern over a “dysfunctional” Parliament or let its committee system to be turned into “a kangaroo court.” Harper continues that he will put forth appropriate motions for his Government’s defeat instead of dragging out a non-functional and unproductive parliament.

On the other hand is the House Leader Peter Van Loan (PVL). PVL claims that they have a clear mandate from the Canadian people to govern and are looking to get tough on crime this Fall with legislation on “stuff for young offenders and stuff for identity theft”

So what does this mean for Canadians and the draconian Bill C-61 that is lurking in the reeds waiting to go to Second Reading? Hopefully the longer this Government sits, the longer Geist, Murray, Knopf, The Globe, Copyright for Canadians, and Fair Copyright for Canada and countless other scholars, small businesses, artists and creators can get their message to Canadians that this legislation is not made in Canada.

Industry Minister Jim Prentice came under fire during question period today by Charlie Angus who implied that the Minister of Industry was guilty of taking orders from US interests on the Canadian copyright file.

Angus:
So from here on in the only consumer rights you will have are the ones the US industry gives you. If you try to protect your rights they will come after you. Why has this government declared war on Canadian consumers?

Prentice quickly fired back, reading from the same script as his Parliamentary Secretary Colin Carrie

Prentice:
The educational exemptions are made in Canada. The format-shifting exemptions are made in Canada. The time-shifting exemptions are made in Canada. The private copying of music exemptions are made in Canada. The provisions relating to statutory damages, Mr. Speaker are made in Canada. All of these provisions of the Bill are uniquely Canadian.

Unfortunately, Prentice fails to mention that the anti-circumvention provisions included in Bill C-61 were born in the United States and made worse in Canada. These anti-circumvention provisions undermine each of the “made-in-Canada” provisions and exceptions the Minister of Industry was touting on the floor.

Just when you thought the master of closing salutations couldn’t top his hang-up mid-interview with CBC’s “Search Engine” Prentice closes his supposed answer with gem of a statement:

Prentice:
My friend’s comments about the USA DMCA are NDP BS.

Angus goes on to commit the support of the NDP to fight the Canadian DMCA and to protect Canadian consumers and creators. Something clearly not high on this minority Government’s agenda.