Let the © Politi©al Games Begin

We await the Speech From the Throne, which may or may not deal with copyright. If it does, get ready for battle. If it doesn't, get ready anyway.

Apparently, the Liberals in their official opposition capacity are going to hammer away at implementation of the WIPO Treaties and the reincarnation of their dead Bill C-60.

The following is from a March 31, 2006 press release from the Office of Mauril Bélanger, P.C., M.P., Official Opposition Critic- Canadian Heritage. The phraseology is a bit strange. By focussing on WIPO implementation, it looks like the tail is wagging the dog. The dog, of course, should be Canadian public policy.

Ottawa, March 31st 2006- Mauril Bélanger, Canadian Heritage Critic, strongly encourages the Harper Government to pay particular attention to the following three key Heritage issues, deemed priorities: ...

3. Introduce during this Session of the 39th Parliament copyright legislation to incorporate the amendments recommended in 2005 amending the Copyright Act by implementing the provisions of the WIPO (World Intellectual Property Organization) Copyright Treaty [sic] as well as updating certain other provisions of the Act.

The optimum "best before" window for the 1996 WIPO Treaty (actually two treaties) implementation has long since expired. The fact remains that the US and Japan are the only major countries that have ratified these treaties to date, and that was four years ago.

France is now having something of a French Revolution over copyright, it seems. Consumers are protesting over DRM. And the French legislators are taunting the USA and iTunes, which is as America as "Apple"® pie. Well, American or British depending on who owns the trade-mark for what purpose. Isn’t IP litigation wonderful?

Germany may be next to waiver. France and Germany are generally regarded as the two most copyright friendly countries in the world. They are true "civiliste" and "droit d’auteur" nations. The EU, which is mostly "droit d’auteur" except for the UK and Ireland, is reportedly embarking on a fundamental review of its copyright directive, which was all about WIPO implementation. It will be led by Bernt Hugenholtz, the bold and brilliant Dutch scholar. All of this suggests that EU WIPO treaty ratification may well be in jeopardy, and at the very least cannot be taken for granted. It is certainly way behind schedule.

The WIPO treaties are not necessarily bad per se. The difficulty is is clearly in finding a means, if possible, of implementing them that is good and not bad for Canada. Whether this can be done is not clear. Certainly, it can’t be done in Canada's interest the way CRIA and the American DMCA champions call for.

Back to Canadian politics. Despite his involvement with the Parliamentary Committee that brought us the regrettable Bill-32 as it emerged from the backroom, and his stint as Parliamentary Secretary to the Minister of Canadian Heritage 1998-2000, Mr. Bélanger has been a thoughtful and diligent M.P. On July 20th 2004, he was appointed Deputy Leader of the Government in the House of Commons. He knows how the system works. He played a constructive role in 2004 as member of the Government by listening to the critics and looking with an independent mind at the issues regarding Bill C-36 (the Lucy Maud Montgomery term extension effort that mercifully never was passed). Let’s hope that as the official opposition's Heritage Critic, he can move beyond the letter of Bill C-60 and take what’s good from it, leaving behind what’s bad and help to craft some really good legislation. There are things that need to be done soon on copyright, such as eliminating the blank media levies and continuing to allow the right of making private copies of sound recordings (in accordance with the Conservative's Policy Declaration of 2005) and eliminating statutory damages for non-commercial "infringement". However, unquestioned WIPO implementation in the American model should not be on the Government's "to do" list.

Given Mauril’s background and his hopefully open mind, he could be a thoughtful, fair and productive opposition critic. Many will be very pleased that he will play this role, rather than Sarmite Bulte, who would very likely have held this job had she been re-elected, which she notably and decisively wasn’t. And the fact that she wasn’t re-elected was probably due in no small part to her copyright polices and her zealous loyalty to campaign contributors and fundraising organizers with strongly pro-WIPO Treaty agendas, most notably CRIA. There are many lessons to be learned for Prime Minister Stepehn Harper, and Ministers Maxime Bernier and Bev Oda in this case study.

And given what WIPO implementation and ratification will mean in terms of TPMs, DRMs (at least as CRIA sees the issues), and the national treatment (i.e. doubling) of private copying levies, the Liberal position may just provoke a differently result to what they intend. Besides, are Mr. Harper, Mr. Bernier, and Ms. Oda going to take their advice on such a sensitive file from the former government? The days when copyright was a non-political and non-partisan issue are gone. CRIA, and its role in the Bulte campaign, the election generally, and all around Ottawa has ensured that we are in a new era. Once again, be careful what you wish for.

HPK