The summer is almost over. And according to the polls, so too may be the honeymoon with the new Conservative government. Rumours are hot and heavy that the Conservatives will introduce a copyright bill this fall - and that it may even be a priority for this government.
If the bill lives up to the buzz, it could be a bad miscalculation for this minority government - which may have been maneuvered into unexpected controversy. The bill, as rumoured, would be extremely controversial. And nowadays, copyright and controversy can even contribute to electoral trouble – and in one infamous instance, actual defeat. The bill will probably contain two significant and specific policy thrusts that will prove especially divisive and which will exude an odour that may not be welcome as another election looms.
The first and most obviously controversial policy will be the blatantly pro-recording industry and anti-user policy of strong anticircumvention and pro DRM + TPM legislation that will help to strangle the promise of new technology and the internet as we know them and threaten the public domain, fair dealing and other users’ rights.
The other major thrust, which the Government may mistakenly believe will be seen as a balance to the anticircumvention legislation, will in fact be potentially very harmful and immediately costly. It will consist of an apparently user-friendly special educational exception for use of publicly available material on the internet. This would be a dangerous and misleading solution to a non-existent problem and could end up costing Canadians millions of dollars a year in short order - most of which will go to foreign interests.
Any policy that is intended to - or perceived as - currying favour with the current American administration may be particularly controversial. A recent SES poll has shown, in the words of Greg Weston, that:
Canadians like to see their prime ministers in the White House rose garden, but not in the presidential bedroom.
Concerning the above policies, cui bono? Who will benefit?
The anti-circumvention (i.e. pro DRM + TPM) measures will be a direct gift to the CRIA (the Canadian Recording Industry Association, a.k.a. the Canadian Recording Industry of America) - which has now lost virtually all of its important Canadian independent members and should no longer even pretend to speak for Canadian interests. It is essentially the RIAA North and might and may as well be called the CRIAA. This initiative will make the American government and the big four multinational record companies very happy. It will likely be actively opposed by some of the leading Canadian independent labels and creators, such as Barenaked Ladies, Avril Lavigne, Sarah McLachlan, Chantal Kreviazuk, and Broken Social Scene. Not to mention an enormous community of concerned and articulate consumers, academics, commercial interests and others.
The educational exception for use of “publicly available Internet materials” is the copyright “cause célèbre” of the Council of Ministers of Education, Canada (CMEC). First of all, it is completely unnecessary. We have a March 4, 2004 Supreme Court of Canada decision (CCH v. LSUC) that extends the reach of fair dealing much further than CMEC has apparently recognized. The current 2005 edition of the CMEC flagship copyright publication, Copyright Matters!, written by CMEC's Counsel, is devoid of any reference to or even apparent consideration of that landmark decision. And we have a deeply developed doctrine of “implied license” in intellectual property law that says that a user is entitled to use a product (in this case, publicly available internet materials) in the manner intended - which clearly means browsing, downloading, saving, cutting, pasting, printing and everything else we have all been doing for years in our offices, homes, classrooms, libraries etc. whenever somebody posts something interesting. That’s the way the internet works, and everyone who freely decides to post material without technical restriction knows it and probably intends it to work that way. If they don’t want their work to be used in this way, they can lock it up behind a pay wall or simply not post it. It would be very surprising if a Canadian court were to rule otherwise in respect of most of the uses that most of us – including educators, students, librarians and archivists – make of “publicly available Internet materials”.
Whatever may be the rationale for CMEC’s proposal, its potential effect is all too clear to those who see beyond the apparently “user friendly” rhetoric and the laudable goal of enhancing education and reducing costs and risks in the classroom. However, the proposal, if enacted, would almost certainly create a strong “a contrario” implication that everyone other than those in the educational community must now “pay” to use publicly available material - and Michael Geist reports that Access Copyright (a.k.a. “Excess Copyright”) is apparently trying to get Canadian Heritage to actually subsidize its work on a scheme that would help to pull this off. This initiative reminds one in many ways of the non-transparent back room activity at Canadian Heritage that led to the unsuccessful attempt to elongate the copyright term in posthumous works by up to 34 years. That was the Lucy Maud Montgomery Bill as it came to be called. When properly understood, that bill was defeated and I’m proud to have led that charge. It was another unnecessary solution in search of a problem - and the solution would have been a major blow to the public domain and benefit to publishers and, thus, Access Copyright. Once again, the educational internet exception is a gratuitous and unnecessary initiative that will benefit Access Copyright - by sacrificing a relatively small amount of potential revenue from the educational community in order to confirm Access’s “entitlement” to a potentially huge amount of revenue from the rest of Canadians outside of the CMEC umbrella.
CMEC may well have good intentions. And the Ministers no doubt genuinely believe that this is a “user friendly” initiative. But, in copyright law as in anything else, “The best laid schemes o' mice an' men gang aft aglay." And to use another cliché, “the road to hell is paved with good intentions.”
If the educators need any more legislated certainty, which is very doubtful, there are far more proven and precise formulations to give them what they want without collateral damaging consequences to the rest of Canadians. One could begin in no better place than the American legislation, which among other things, expressly recognizes that “multiple copies for classroom use” can be “fair”.
I will have more to say about the CMEC initiative in the days ahead. Michael Geist is doing an admirable job on 30 Days of DRM and has also raised several good points in opposition to the CMEC proposal. Hopefully, the CMEC plan will unravel by itself as the more independent-thinking factions of the broader educational community - such as the Canadian Library Association - see what is really going on.
COPYRIGHT AND ELECTIONS:
If this government believes that controversy over copyright is an acceptable and manageable political risk worth taking in order to court good will of the entertainment and publishing industries and the approval of the American government, it may wish to study the defeat of Sam Bulte in last January’s election. Michael has documented it in great detail and was indeed quite active in the unfolding melodrama itself. There is a wealth of publicly available internet material on the subject.
Mme Bulte’s blunt and brazen support of the same trade associations and collectives that are now working their charms on the Conservative government is widely believed to have led to the shift of a large number of votes in the once presumptively safe Liberal riding of Toronto Parkdale. Mme Bulte was the copyright establishment’s choice for the next Minister of Canadian Heritage, since the incumbent Liza Frulla from Quebec was doomed by the Gomery inquiry fallout. As every backroom person knows, a few votes can make a decisive difference in one riding and a few thousand votes can even swing an entire national election. Anyone who doesn’t believe this should ask not only Sam Bulte but Al Gore.
Both of these problematic initiatives - anticircumvention and the CMEC educational exception - proceed from false premises. The strong anticircumvention proposals are almost certainly being peddled upon the false notion that Canada has some sort of obligation or “commitment” in international law to implement them. We do not. We have done nothing other than “sign” the 1996 WIPO treaties, which does not oblige us to implement or ratify them. And even if we choose to implement and ratify these treaties, the previous government’s much more modest anticircumvention provisions would have been compliant and then some. Contrary to CRIA’s misleading-as-usual propaganda, there was nothing in the recent G-8 declaration that required any IP action on the part of Canada. Anyway, the Americans are in no position to complain about non-compliance with international copyright law. They are in flagrant adjudicated violation the TRIPS agreement by eliminating royalties for musical performances in smaller business establishments - and clearly have no intention of doing anything to fix this problem. This is the most serious decided WTO case to date of violation of international copyright law.
The CMEC proposal stems from the false premise that it is necessary to avoid liability for classroom activity involving internet use. Apart from those in the CMEC camp, there are few, if any, experts who believe this to be a serious issue, especially given the current state of Canadian law as spelled out by the Supreme Court of Canada. And given Access Copyright’s costly and painful lesson in test case litigation in CCH v. LSUC, it will likely be a long time before it launches or supports another dubious law suit. CMEC’s proposal will benefit Access Copyright and nobody else - by predictably ensuring that everyone other than the educational community will have to pay more to use the internet. I predict that, if CMEC gets its way, it will take little time for Access Copyright to file a proposed tariff that will fall on ISPs, who will pass it along to internet users in the form as in the form of a tariff duly certified by the Copyright Board. Canada would likely be unique in this folly.
Ironically, the CMEC proposal could seriously erode the “large and liberal” ambit given to the research exception and to users’ rights by the Supreme Court of Canada in the CCH decision. It would be fascinating to see whatever reasoning and evidence may be the basis for this proposal and it should be of some concern that CMEC has not published any adequate analysis, as far as I know. What we do know is that there is a long paper trail of the evolution of this proposal from the Department of Canadian Heritage and the Canadian Heritage Committee, under the leadership of Sam Bulte. It is nothing if not ironic that, whatever may be its intentions, CMEC is, in the result, doing a more effective job at helping Access Copyright’s agenda than Access itself. In this instance, CMEC has – for whatever reason - come to be a wolf in sheep’s clothing.
It would be surprising if this Government – assuming it to be fully and frankly briefed - were to take the risks associated with these proposals, especially while it is in a minority position. Copyright law is now the subject of lead editorials on a regular basis - e.g. just the other day in the Ottawa Citizen on September 5, 2006 right after Labour Day. It is a big political issue.
Moreover, copyright law has nothing to do with the Government’s five current priorities. To say that it has something to do with law and order would be ludicrous - unless one believes that making it easier for CRIA to sue children and dead grandmothers and to extract large settlements from ordinary families, as its American master, the RIAA, has been doing with aplomb, is somehow about law and order. This Government has lots of very serious law and order issues to keep it busy - from dealing with serial pedophiles to gun crimes to border security - not to mention the gun registry. These are promises that need to be kept.
It can only be hoped that this Government to will not proceed with the more controversial copyright proposals at this time only to respond to pressure from American interests and the American government and/or to satisfy certain domestic demands, such as the CMEC proposal, which entail harm and controversy of which the Government is likely not fully informed.
BENEFIT OF THE DOUBT?
I would like to give this Government the benefit of the doubt. Hopefully, the rumours about the bill are wrong. Or if they are right, hopefully there is still time for frank second opinions, better advice and a rewrite of the legislation - or time to simply to shelve it before introduction. There are lots of positive things that need to be done to update Canada’s copyright law in Canada’s interest - but it is likely that most of them will not be in this Bill.
I believe that this Government means well on copyright. The Conservatives’ Policy Declaration of March 19, 2005 was a very good start. Let’s see if they can live up to it. The two primarily responsible Ministers are highly qualified. Hopefully, they and their Government will not succumb to bad advice on this difficult dossier.
The ultimately irony is that this Conservative government is about to engage in profound interventionism in the marketplace of ideas, knowledge and electronic commerce by enacting extreme and unnecessary protectionist measures for the benefit of special commercial interests. Whether that is consistent with Conservative ideological roots is an interesting question. Whether the rumoured policy pillars of the proposed legislation are good for Canada is far clearer. They are not.