Sunday, April 27, 2008

Outside the PPF Tent

Some of a certain age and/or who cherish blunt wisdom may recall Lyndon Johnson’s saying about being “outside the tent.” There are a few questions that arise about the Public Policy Forum (“PPF”) conference tomorrow to which I have been uninvited. Being an “unperson” at this Symposium, I am now outside the tent - well, actually the Chateau Laurier in this instance. But I will stop well short of Lyndon Johnson’s license and take the high but necessary road here.

Here is the program. Here is the gist of the talk that will now not be heard. And herewith some questions.

The program says that:
This symposium aims to inspire discussion about how Canada’s current intellectual property rights regime might be re-structured and how those rules could become a more integral part of national science and technology policy.
When PPF states that it “stands resolutely in its belief that high quality government is critical to Canada's quality of life as well as to our prospects as a competitive nation in the global economy”, why would it look to the American Ambassador to deliver the “Welcome and opening remarks” at a conference about how Canadian IP law should be “re-structured”?

Why - especially when this particular Ambassador has been quoted on Nov. 16, 2007 in The Ottawa Citizen by acclaimed business journalist (as she then was) Deirdre McMurdy as saying that “Canada is known for having the weakest copyright protection in the G8.”? That statement is not only wrong. It is false and misleading and would be risible and even ridiculous but for the fact that some intelligent people actually may be inclined to take it seriously out of respect for the office from which it came.

You don’t have to take my carefully researched words delivered at Fordham for this.

As Michael Geist pointed out in his analysis of the recent World Economic Forum (“WEF”) survey:
Interestingly, there is a bright light that casts doubt on the repeated (false) claims that Canada is a laggard on intellectual property protection. In the IP protection category, Canada ranks 15th worldwide, ahead of both the United States and Japan. The rankings come from the World Economic Forum's Executive Opinion Survey, which ranks the G8 countries in the following order:

1. Germany (1 overall)
2. UK (8)
3. France (9)
4. Canada (15)
5. Japan (17)
6. United States (22)
7. Italy (42)
8. Russia (113)
(emphasis added)
Now, the WEF is hardly a radical “enemy” of intellectual property. One of its regular participants is Bill Gates - here he is in 2008.

The WEF is probably the most prestigious, high powered and influential international public policy forum and NGO think tank in the world today.

So - even among the G8, Canada outranks both the USA and Japan on the question of whether “Intellectual property protection in your country (1 = is weak and not enforced; 7 = is strong and enforced)”

And speaking of surveys, here are some of the questions that the Nanos survey poll undertaken for this PPF forum in early April put to 1001 Canadians:

• On a scale of 1 to 5, where 1 is not at all important and 5 is very important, how important are the following for the future prosperity of Canada? Encouraging discoveries and inventions

• As you may know, a discovery or invention requires an investment in research and development. Once a unique discovery occurs or a unique product is created, in many instances the inventors secure patent or copyright protection to help recover costs, and benefit from their creation. Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of the intellectual property right for those that make discoveries and inventions or create a unique product?

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following: Inventions related to high tech products

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following : Discoveries of new medicines

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following : Copyrights of music

• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support or oppose the protection of intellectual property rights for each of the following: Copyrights of software

• Question - On a scale of 1 to 5, where 1 is no enforcement at all and 5 is very strong enforcement, how should the Government of Canada enforce the intellectual property rights for each of the following: Discoveries of new medicines

• Question - On a scale of 1 to 5, where 1 is no enforcement at all and 5 is very strong enforcement, how should the Government of Canada enforce the intellectual property rights for each of the following: Copyrights of music
Naturally, “motherhood” scored very high each time. These questions suffer from basic and obvious flaws and fallacies. The answers are entirely predictable and virtually inevitable, given the questions, and will be no value for any policy analysis purposes, although I’m sure that the usual spin doctors will be delighted at the findings.

Why would PPF have commissioned such a survey? It is a pity that this obviously expensive effort has not produced anything that can adequately inform any serious analysis.

It would have been much more interesting and useful to see questions such as these on the copyright front:
• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable record companies to demand and collect a “settlement” of more than $5,000 from you because a member of your household may have downloaded music and made it available for sharing on the internet?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable a record company to easily obtain your name without your consent so that it can sue you for up to $20,000 for each song a member of your household may have downloaded and made available for sharing on the internet?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable record and movie companies to control how, when, where, how many times and on what type of electronic device that you can enjoy music and movies that you have bought and paid for?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that enable publishers to collect millions of dollars a year for the photocopying of material for research or private study purposes from taxpayer funded schools, universities and governments that have already bought and paid for this material?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would put Canada at a comparative disadvantage compared to the United States and other G8 countries in terms of being able to engage in essential research, private study or educational activity?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable and require your Internet Service Provider or web site host to unilaterally remove content from your website at the automated request of the alleged owner of the copyright in the content?



• Question - On a scale of 1 to 5, where 1 is strongly oppose and 5 is strongly support, how much do you support laws that would enable Canadians to fairly build upon the creative and scientific work of others in order improve Canadian education, culture, scientific achievement and the economy overall?

Maybe I’ll think of a few on the patent and TM front as well.

Now, I’m not a survey expert and my questions surely have their own flaws and surely could be improved upon. I haven’t been paid a dime to come up with them. But I bet they come much closer to the issues that are really at stake and to the suggested policies that I predict will emanate from this PPF symposium, which will use the Nanos survey to prop them up.

This will not be the first or the last imbalanced conference event in Canada that will clearly be dominated by the usual special interests, their spokespersons and American pressure in this area. The disappointment is that one would not have expected such a blatantly imbalanced program from such a prestigious and avowedly “neutral” an organization such as the PPF.

HK

4 comments:

  1. Freeman-on-the-landApril 28, 2008 1:29 am

    If this is truly a "public" forum, then the public must be part of it. If they are not allowing certain individuals such as yourself (as a member of the public) to attend, then it's not really public is it?

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  2. Your cogent and spot-on remarks are evidence in themselves for your dis-invitation.

    Sadly, your dis-invitation is actually to their shame and your credit.

    Cheers,
    Jim

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  3. Here I will answer the questions in red.
    Note that I do believe trademarks are important but as a consumer protection law I'm not sure why trademarks are considered IP anyway. In the following questions I will only consider trademarks as IP in the way that they are developing in a more IP way (eg allowing people to take down trademarked-name-sucks.com sites) not as their non IP purpose to protect consumers from deception over the makers of products.

    (1) 5 - of course I consider "Encouraging discoveries and inventions" "important ... for the future prosperity of Canada" - though as an Australian I would kinda rather more of that over here than in other countries - which I believe could be best done by scrapping most IP (this being the non-expected part of the response - more detail will follow)

    (2) 1 - the clue is in the "unique product" section - you sell the product - if it is truly unique it will be hard to copy, the more unique the harder to copy so by the time someone has copied it you should/would have made improvements, keeping you in the lead. If it wasn't so unique then no loss from you not producing it - or you could compete like those who sell other things that are the same as their competitors products such as with bottled water.

    (3) 1 - everything hi-tech is built on so much that came before it that if all these previous steps were "protected" no advances could happen at all. If there was no "protection" people could build more easily on previous advances, leading to quicker advancement (also people would have to make new advances to survive to compete with those copying them kinda like the fashion industry works without copyright or patents leading to even more rapid development)

    (4) 1 - patents prevent generic medicines from helping impoverished nation etc for long periods of time and avenues of research that aren't patentable are ignored. But on a basic level even paracetamol headache tablets the brand name Panadol(tm) tablets sell at a price premium over the generics - they are making more profit then the generics so can make a return on investment on their development as people trust Panadol(tm) more than the generics that are exactly identical.

    (5) 1 - artists can still make money (heaps!) from performances, more than enough to continue creating more music - from a starting band in local pubs or private parties to international superstars in packed stadiums. It's only if they suck that people will not want to pay to see them (assuming affordable tickets)

    (6) 2.5 - the success of open source software has shown that people do not need to rely on selling copies of software based on copyright but then again most oss licences rely on copyright to be enforceable (eg GPL but not BSD-type) Still as shown by macOSX containing heaps of BSD code by essentially ignoring the copyright (as allowed by the licence) highly copyright reliant licences like the GPL might not be necessary. Even if they are you could create a "weaker" law that only let developers ensure that people release source code when they create work based on your released code. (note that I am doing a computer science degree to try to become a professional programmer, I would definitely not want to destroy my chances of making a living off this so don't accuse me of anything like that)

    (7) and (8) are repeats of questions (4) & (5) respectively - you might want to fix that.

    I don't think this was exactly what you meant when you said the answers were obvious. Note I believe that laws should only exist when they are necessary and provide more benefit to society than they do harm.

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