Canada’s copyright law is ALREADY stronger and better than U.S.’s

Here's my op-ed piece that appeared in the print and electronic version of the Hill Times today, November 26, 2007. There were some formatting glitches in the print edition, which are corrected below and I understand have been or will fixed up online at The Hill Times.
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The Hill Times, Ottawa, November 26, 2007-11-25

By HOWARD KNOPF

OTTAWA—The rumours are that Canada’s “New Government, ” as it used to call itself, is about to give a costly Christmas gift to the U.S., for which Canadians may never stop paying. It’s shaping up to be a made-to-order American style copyright bill that will:

• Put digital locks on our computers, cellphones, iPods, other gadgets and tools, and, ultimately, our culture and make it an infringement and maybe even a criminal offence to try to circumvent the sometimes malignant and much-maligned technology known as Digital Rights Management (DRM) and Technical Protection Measures (TPMs). Remember the Sony Rootkit fiasco? We will likely see protection for such nightmares, and not from them. This will happen notwithstanding the fact the architect of the American Digital Millennium Copyright Act (DMCA), Bruce Lehman, has publicly admitted that “our Clinton administration policies didn't work out very well” and “our attempts at copyright control have not been successful.” Even the music industry itself is fleeing from DRM as fast as it can.

• Make it possible for the big four foreign record companies to sue ordinary Canadians whom they suspect of file sharing. This is happening in the U.S. where companies routinely extract so-called ‘settlements’ equivalent to a year’s Canadian university tuition or more and have even gotten a judgment for $222,000 (which is under appeal). This could happen here, notwithstanding that the world’s leading study on P2P downloading and file-sharing commissioned by Industry Canada from two independent English academics and based upon data from a Decima survey of 2,100 Canadians shows that such P2P filesharing activity actually tends to increase rather than decrease music purchasing.

This is happening mostly because of a lot of spin and propaganda from the U.S. Ambassador to Canada, David Wilkins, as well as the considerable efforts of Canadian lobbyists such as Graham Henderson, president of the Canadian Recording Industry Association, which is the Canadian arm of the RIAA. Important Canadian “indies” such as Nettwerk have left CRIA, and disagree with its desire to sue fans and families. Nettwerk is a leading label that produces the Barenaked Ladies, Avril Lavigne, and Sarah McLachlan.

The ambassador was quoted by Deirdre McMurdy on Nov. 16 in The OttawaCitizen as saying that “Canada is known for having the weakest copyright protection in the G8.” That is not only ridiculous. It is false and misleading.

First, the G8 includes Russia. Enough said.

Second, Canadian copyright law is actually much stronger than U.S. law in the following ways, which are only a baker’s dozen examples:

• We have “neighbouring rights.” The U.S. doesn’t. This translates into very big bucks for record producers and performers.

• Broadcasters already pay far more here than there their counterparts in the U.S.A., much of it for rights that don’t even exist in that country. Now, about $50-million a year more over and above is being demanded by the record companies. We pay a fortune to SOCAN for performances in countless bars, restaurants, retail stores, and other small business establishments. The U.S. notoriously exempts these establishments, contrary to a WTO ruling against the U.S. which the U.S. continues to flout. The U.S. is the most famous adjudicated current violator of international copyright law.

• We have moral rights for all types of works. The U.S. doesn’t.

• Canada actually respects the right of independent creators to own their copyright. The U.S. walks all over this with its “work for hire” doctrine that favours large corporations.

• Educators pay more here than in the U.S. We pay far more proportionally for reprographic rights than in the U.S., with far fewer exceptions for educators in our legislation. The U.S. counterpart to Access Copyright has only a little over three times Access’s income while normal ratios would suggest that it should have more than 10 times the amount. Canadian educators are subject to statutory minimum damages. American ones are not if they reasonably believe that they are engaging in fair use. We have no distance educational exceptions. The U.S. does.

• We have a rich blank media levy scheme that generates currently almost $40-million a year, most of which goes to the U.S. The U.S. has nothing comparable. If CPCC gets its way, which I’m trying to prevent, we’ll have a $75 iPod “tax,” which simply couldn’t happen under U.S. law.

• We long ago got rid of most of our compulsory licences, including the mechanical license for sound recordings. The U.S. has this and many more, which it continues to preach against to other countries.

• We have 36 copyright collectives, many of which have received substantial direct and indirect government subsidies. The U.S. has less than six, with no government largesse.

• We have a full-time Copyright Board with enormous policy-making powers. The corresponding U.S. mechanism is far more limited.

• We have no parody right/exception for users. The U.S. does.

• We have no time shifting exception that would clearly allow for legal use of PVRs such as TIVO in Canada. The U.S. has had this since a 1984 Supreme Court decision.

• We have crown copyright in Canada, which leads to all kinds of unnecessary costs and complications for those ranging from advanced researchers to fishermen, who should be able to depend on mapping and GPS information from the government and not some privatized for profit party.

• Our provinces have no Crown immunity and already pay exorbitant amounts for educational uses of copyright. U.S. states have state sovereign immunity for copyright infringement, arguably in contravention of the Berne Convention.

Can it be said that Canada’s copyright laws are “weaker” than those of the U.S.? Yes, and here’s how:

• Canadian law seriously respects personal privacy. This was instrumental in preventing the attempt by CRIA in 2004 with RIAA-style “shock and awe” litigation to force the ISPs to identify users who could then be sued for file sharing. This type of litigation in the U.S. has made victims of children, the disabled, a dead grandmother and tens of thousands more. American law does not reflect Canadian privacy values.

• Canada has a shorter copyright term, namely the internationally accepted Berne Convention norm of life + 50 years. The U.S. and Europe have the self-inflicted wound of a life + 70 year term, thereby enriching big entertainment and publishing companies but depriving future creators, researchers, technologists and consumers of their right to access the public domain for an absurd length of time. To illustrate, under a life + 70 term, Bill Gates’ DOS program will be presumably protected well into the 22nd century, assuming he lives a normal life span. He was born in 1955. How does that help the cause of innovation in the computer industry?

• We don’t have DMCA-style protection for DRM and TPM, which among its other faults, can inhibit, or prevent encryption and security research. The U.S.A. does. QED.

If this is “weaker,” then Canada should stand proud, stronger and sovereign.

The problem with American copyright propaganda is that the U.S. is a “born again” believer in copyright law, and therefore prone to overly zealous and inaccurate excessive rhetoric. Until 1976, its copyright laws were clearly weaker than any other developed country. It didn’t even join the bastion of international copyright law, the Berne Convention, until 1989, which was 61 long years after Canada. Even now, there is good reason to question American compliance with Berne, on such issues as moral rights and state sovereign immunity, not to mention its adjudicated WTO violation. It would be very sad if our politicians were to believe the overall propaganda coming from the U.S. and the rhetoric of CRIA. about such issues as file-sharing.

While most of the counterproductive influence is coming from these sources, some is homegrown. There’s a potentially very dangerous and unnecessary proposal from the Council of Ministers of Education Canada (CMEC) that could create real problems and increase costs for everyone outside of the institutional educational tent. More on that another day.

Canada’s New Government is about to betray its libertarian roots and its 2005 Policy Declaration by heavily interfering with the marketplace of ideas and commerce, and providing unnecessary and counterproductive monopoly rights that serve only to benefit mostly foreign corporate interests. Nothing is more interventionist and counterproductive to innovation and cultural evolution than excessively strong IP protection. Thomas Jefferson, one of the greatest of all Americans, understood and articulated this better than anyone.

The bill, which is expected in time for Christmas, could mark a sad day for Canadian sovereignty and public policy, and a controversial political mistake by Canada’s government. Hopefully, the rumours about the gift that will keep on giving at such great cost are wrong.

Howard Knopf is an Ottawa copyright lawyer and is counsel to Macera & Jarzyna, LLP. These views are his own and not necessarily those of his firm or his clients.

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