Canadian Coalition for Electronic Rights
 

George Geczy, co-founder and co-owner of Battlegoat Studios, has just released a thoughtful and eloquently written document entitled: A “Canadian Content Creator’s View” of the Copyright Modernization Act (Bill C-32) (PDF).

While Mr Geczy has not been shy about expressing his and his company’s views regarding copyright, the need to speak out on copyright and the Canadian video game industry, Mr Geczy’s is a seasoned veteran when it comes to copyright and video games, he literally has been involved since ’82:

I think it is important to point out that I have been a digital content creator since 1980 and a business owner since 1982…I have also been involved with digital copyright issues since the early 1980′s, and my first submissions on the “current round” of copyright reform were in September 2001. I have since made submissions to each opportunity for consultation and feedback on copyright, FTAA, and ACTA.

Reflecting on Bill C-32, Mr Geczy arrives at much the same conclusion as distinguished scholars, business coalitions, universities and colleges and federal opposition MP’s. Mr Geczy sums this up succinctly with the following assertion:

Unfortunately, Section (47) of C-32, which adds the new Technological Protection Measures regulations, is so inherently flawed and unbalanced that it not only overshadows the progress in other sections of the bill, but in facts eliminates them by its “over-riding” nature. In recent comments the Minister of Heritage has said that the bill strikes a balance and “everyone got some water in their wine”. However Section (47) is more like arsenic in the wine, it destroys the progressive elements of the bill by invalidating them, and without changes this section makes the bill unacceptable and entirely unbalanced.

Mr Geczy offers a simple solution to the contentious protection for digital locks laid out by Bill C-32 that would satisfy Canada’s WIPO requirements, allow consumers to uphold their Fair Dealing Rights and Expections and protect creators and publishers against supposed large scale infringement. Think Mr Geczy’s solution would entail another lengthy research submission to satisfy all stakeholders as well as meet Canada’s international obligations? Think again, as Bill C-32 can be fixed with 10 words, yes 10 words:

Circumvention of Technical Protection Measures be permitted for non-infringing uses.

The CCER encourages Canadians to read Mr Geczy’s paper in its entirety to see how he rightly arrives at such simple yet effective fix. And to you Mr Geczy, by George, I think you’ve got it!

IP lawyer Richard Owens has gone on the offensive in a tirade (.pdf) criticizing the Canadian Government’s 2009 public consultations on copyright (“consultations”). The article appears to make several broad assumptions and subsequently questionable conclusions. These assumptions range from alleging that the Canadian Coalition for Electronic Rights (“CCER”) is a shadowy organization of criminals set on gaming a public political process on one hand to a group engaged in lobbying and other activities aimed at undermining the will of Canadians on the other hand. Why is Owens hitting the panic switch and slamming what potentially was the most successful government consultation to date as indicated by MP Cheryl Gallant (link)?

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.

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.

As expected the Office of the United States Trade Representative released its Special 301 Report today however it includes a special twist this year. Canada has been promoted to the “Priority Watch List”. That’s right, when it comes to the protection of Intellectual Property in the eyes of a biased, lobby dependent, cabinet level position of the US Government Canada now joins the ranks of China, Russia, India and Algeria (just to mention a few).

The move is not unexpected, given recent comments from Vice President Joe Biden and U.S. Congressional panels as well as the demands from U.S. lobby groups. Those same groups will now dust off their press releases that lament the “embarrassment” of being included on the list (never mind that countries that represent more than 70 percent of the world’s population are on the list) and the failure to introduce U.S.-style reforms (never mind that Canada enacted anti-camcording laws in 2007, introduced C-61 last year, is an original negotiating partner in the ACTA negotiations, joined the U.S. as a third party in the WTO copyright complaint against China, etc.).

Source: Michael Geist

So as things ramp up for E3 the ESA’s propaganda machine kicks into high gear so you of course know they issued a press release applauding this move by the USTR about 3 seconds after the Special 301 Report was released.

Putting Canada on the ‘Priority Watch List’ is a signal of the Obama Administration’s commitment to strengthening global intellectual property protection, and its intent to address this issue firmly with the Canadian government,” said Michael D. Gallagher, CEO of the ESA, which represents U.S. computer and video game publishers. “Canada’s weak laws and enforcement practices foster game piracy in the Canadian market and pave the way for unlawful imports into the U.S.”

Source: The ESA

Copyright reforms should be handled by sovereign nations in the normal discourse of their legislative assemblies. Canada has made clear its commitment to protect its intellectual properties. It should not stray from this course because a heavily influenced and lobbied report from another country claims its not pulling its weight. The Special 301 Report is entirely driven by the corporate lobbyists and lacks any dissenting voices of reason outside of US copyright special interest groups. Hopefully our Members or Parliament will listen the voices and concerns of their constituents and not the US corporate lobbyists who have the power of the media and press releases at their disposal. Ministers should ask themselves or be told, could a representation of over 2/3 of the world population really be guilty of comprising the USTR’s ‘Axis of Copyright Evil’?

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.

There has been no shortage of spin surrounding the introduction of Bill C-61 – the Canadian DMCA over the past week. The Bill had barely even hit the table and those who had lobbied feverishly for its introduction and its made-in-America anti-circumvention provisions we applauding the government and its fine work.

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.

As Copyright reform begins to ramp up again in Canada with lobbyists and big business attracting much of the Government’s attention via the one sided Public Policy Forum Symposium and the pro restrictive copyright IP Caucus the public was left to cable television to attain a balanced debate.

The Business News Network (BNN) hosted a lively and spirited debate on Canada’s supposed lax copyright laws. The debate pitted Stevan Mitchell, Vice President of IP Policy at the Entertainment Software Association (The ESA) against colourful copyright scholar, blogger and litigator, Howard Knopf. Howard not only holds his own, but successfully argues that the flawed Made in America DMCA is not welcome here in Canada and Hollywood, Corporate America and American Lobbyists should stay out of Canadian Politics. Stevan Mitchell appears speechless towards then end as his argument begins to lose steam.

The CCER is in agreement with much of Howard’s talking points and would like to that this opportunity to re-iterate its stance:

1. Any amendments to the Copyright Act must not prohibit 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 which 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. CCER opposes the proposed “notice and takedown” system in favour of the “notice and notice” system whereby a legal safe harbour for Internet intermediaries is established. Canadian copyright reforms must not permit ISP’s to act as ‘copyright cops’ at the discretion of supposed copyright holders and special interests.
3. The Copyright Act should be amended to bring the backup copy provision into the 21st century by expanding the right to make an archival backup copy to all digital consumer products regardless of format or media.

Howard Knopf far better speaks on behalf of Canadians than US interests when it comes to updating Canada’s Copyright Act. One can only hope that this was simply the starting point for Canadians to voice their opinions. These US interests have had the Government’s ear for long enough, it’s time for Canadians to help craft a Made In Canada Copyright Act.