Canadian Coalition for Electronic Rights
 

The Canadian Coalition for Electronic Rights has updated its online letter writing wizard in light of recent developments in the Canadian copyright reform front. This update is intended to address the Government’s seeming willingness to ignore the voices of thousands of Canadians and proceed with the introduction of anti-consumer copyright reform legislation in as little as 6 weeks. Legislation that goes in a polar opposite direction of what Canadians demanded during the consultation process.

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.

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.

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.

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.

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.

This afternoon in a Speech from the Throne Governor General Michaëlle Jean has just confirmed that Harper’s minority government intends on moving forward with legislation to amend Canada’s copyright and intellectual property laws. This comes as little surprise since the Conservatives saw fit to include copyright reform in their October 2008 platform (PDF).

Cultural creativity and innovation are vital not only to a lively Canadian cultural life, but also to Canada’s economic future. Our Government will proceed with legislation to modernize Canada’s copyright laws and ensure stronger protection for intellectual property.

One can only assume that a reincarnated Bill C-61 will emerge sooner as opposed to later. Despite the global financial crisis and the imminent death of traditional manufacturing in Canada, it appears that lobby and corporate interest groups are still able to assert their control over this government.

It’s official, Tony Clement is now the Minister of Industry as Jim Prentice is shuffled to the Environment portfolio. This means Prentice will not get the chance to see the Canadian DMCA through to fruition. Will Clement pick up where Bill C-61 left off??? most likely!

Although Industry pretty much spearheaded C-61, Copyright is still jointly controlled by Industry and Heritage. We see Josee Verner out as Heritage Minister and James Moore is in.

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.