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.

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.

CRIA: “To maximize the benefits for all parties – consumers, creators, businesses and other stakeholders – the legislation must provide clear rules so that all Canadians can understand what is acceptable on the Internet and other digital media.”

Unfortunately for consumers this legislation provides an obscure set of rules and regulations that confuse most Canadians.

The ESA Canada: “The Entertainment Software Association of Canada (ESAC) has long been an advocate of updated copyright rules, and is pleased to see the government take action to protect our nation’s industries and artists from theft.”

Unfortunately for consumers this legislation is of little benefit to artists and creators and has been designed with the purpose of propping up dying business models and providing new revenue streams through litigation.

Fortunately the media was not buying into all the glossy provisions engineered by the Conservatives to win public support for the Canadian DMCA. This was made clear in several mainstream media reports.

The Ottawa Citizen: “The complex bill continues to be the subject of considerable discussion, much of it technical. Its full implications may not be completely understood for some time, but a few things are becoming clear: Enforcement will be difficult, if not impossible, and it will limit uses of digital material that have nothing to do with piracy.”

The Vancouver Sun: “The fact that the bill relies on the American method is not just a coincidence, either, as it is almost entirely the result of the intense pressure U.S. authorities placed on Ottawa. In contrast, there was precious little public consultation during drafting of the proposed law.”

One can only hope that Canadians see through the smoke and mirrors of this supposed made-in-Canada bill and take it for what it’s worth, a made-in-America bill made worse.