Friday, October 23, 2015
My Unsolicited Advice to Prime Minister-designate Justin Trudeau & his Team on TPP, Copyright, CBC, Cabinet & Committees
I am not partisan. I was a public servant for about a dozen years. I was in the public service during the end of the Pierre Trudeau era, the Brian Mulroney era and early Jean Chrétien period. I’ve observed much since then and appeared several times at Parliamentary and Senate Committee hearings. I’ve fought and won some victories in some important cases up to and including at the Supreme Court of Canada. There are many IP, trade and cultural issues that I care a lot about and which are or should be non-partisan. So, I hereby offer my free, unsolicited and non-partisan advice on some of them – for what it’s worth – to Canada’s new Prime Minister-designate and Government:
- Re the TPP, there should be very open and adequate committee hearings as soon as possible to support a fully informed debate in Parliament. Many committees will need to look at this. The proposed agreement - which is sadly still secret – apparently has huge implications for the auto, agriculture, pharma, health, high tech, academic and innovation based sectors – for starters. It may have enormous implications for the rule of law and national sovereignty if it allows foreign corporate “investors” to effectively limit or even undo Canada’s right to regulate in many areas. It may even allow them to effectively overturn the outcome of decisions of our highest courts including the Supreme Court of Canada, which are among the finest courts and most respected courts anywhere in the world. The TPP needs all the scrutiny and all the time we can give it. It’s not likely going anywhere fast, based upon what we have heard from Hillary Clinton and President Obama’s situation in the USA. There could very well be an opportunity to reopen it and to more strongly assert Canada’s best interests, if necessary. The complete shroud on public transparency in the negotiations - which was not the case with the historic WTO Uruguay agreement in 1994 or many other treaties, such as those from WIPO - has understandably created suspicion and scepticism.
- Regarding intellectual property and free trade, don’t assume that higher levels of IP make for freer trade. The evidence suggests otherwise, unless one is dealing with rogue or pirate nations that have not even ratified or which flout the basic WIPO and WTO-TRIPs treaties. There are few if any such places left and none of our significant trading partners could be remotely so described. Don’t take my word for this. Read what Nobel Prize winner Joseph Stiglitz recently had to say about the “Trans-Pacific Free Trade Charade”.
- Don’t assume that more or longer copyright protection is necessarily good for Canada. Remember the controversial report from Sarmite (“Sam”) Bulte and her committee. It’s important to have knowledgeable committee chairs who have an open mind. Also, remember how Jim Prentice learned that more is not necessarily better when it comes to copyright and that bad bills can quickly evoke significant protest. He was one of the first to learn about what social networking to do to bad policies and bad legislation.
- Get Canada back into business in a visible and meaningful manner at the World Intellectual Property Organization (“WIPO”), the WTO and other international multilateral fora. It is unfortunate that we have become largely silenced in this respect over the last decade and even more. We have much to contribute through our capable public service delegates and it can only help Canadians if we do so. Canada can also much to help other countries and should consider resuming its role as “honest broker” in international fora.
- Don’t pander to the Mickey Mouse “Forever-Less-A-Day” movement, lavish music and film industry galas, receptions and the other glamorous and seductive lobbying initiatives that will be surely present themselves. Much of what you will be asked to do by these folks will be bad for Canada. And even bad politically. Remember Sam Bulte and her infamous “fundraiser” with Hollywood, the music industry and other strongly pro-copyright interests. That event was widely regarded as being instrumental in her electoral defeat and the apparent demise of her political career. Or ask Sheila Copps about the most lobbied issue ever in Canadian federal policy making. Or ask her about her ill-fated and ill-advised back-door attempt to extend the copyright term for unpublished works by Lucy Maud Montgomery and others who died before 1949. (I’m proud to have played a significant role in the demise of the relevant provisions of the bill that would have made this happen). Or ask outgoing Prime Minister Stephen Harper why he suddenly and without any public consultation or subsequent debate provided a windfall copyright term extension for sound recordings of an additional 20 years in an omnibus budget bill and wrote a letter to the American recording industry’s “Canadian” lobbying association on the very day that the controversial provision was tabled, just a few months before he lost in this week’s historical election. Bob Tarantino has a good take on how this term extension will work. Think about repealing it.
- Fix the problems at the Copyright Board, which takes too long to render decisions that are too retroactive, too costly and sometimes just simply wrong. This will almost certainly require regulations. The fault, if there is any fault to be found, may lie more with the parties and their lawyers than the Board. But the Board has, despite its competence, dedication and good intentions, proven unable or unwilling to deal with these problems and to confront the perennial parties and the small cadre of counsel who have done well under the status quo and who don’t want to see any meaningful change. Regulations are the answer. Virtually all other comparable Canadian tribunals and courts operate under clearly enacted rules that set out timelines, procedures, etc. Establishing such rules through regulations is relatively easy – because regulations don’t require legislation. They just require hard analysis and serious consultation. We do not need further statistical study, especially when the Board only renders two or three significant substantive decisions a year. I’ve written about this a lot.
- Fix the CBC. Start with a new Board of Directors chosen for their knowledge and ability and not on the basis of partisan considerations. Get a new President ASAP who is committed to running the CBC according to its historical and legislated mandate and bringing in more capable senior management. Running the CBC does not mean running it into the ground. Listen to voices who can provide non-partisan wisdom, such as Tony Manera – a highly principled and highly respected former president. The CBC is an indispensable part of Canada. Bring it back to life and let it flourish. It was once a national treasure admired around the world. This can happen again.
- Use your elected talent pool wisely. You have knowledgeable and experienced people who could contribute in cabinet on issues such as the above. Chystia Freeland comes to mind on international trade. David Lametti is certainly the first and foremost intellectual property law expert elected as an MP in Canada in modern times and probably since Confederation. He has been a distinguished full professor of law at McGill and could make a great contribution in several places, such as Justice, Industry or Heritage. (I should disclose that I represented his McGill institute and worked with him and Prof. Ariel Katz of U of T in a recent Supreme Court copyright case, for which the copyright community is eagerly awaiting the result).
- Use your bureaucrats wisely. Many of them are very capable. The system should encourage expertise and experience in IP on the part of senior levels in the bureaucracy, which has rarely been the case in Canada – in notable contrast to the USA.
The previous government did do some good work on copyright. The 2012 legislation was reasonably well balanced. The decision to get rid of the proposed “new tax on iPods and MP3 players”, an idea that then Industry Minister James Moore called "really toxic and, frankly, really dumb” through regulation was a clear, decisive and an important step (I admit to involvement on this file). Resist the likely attempt to reverse this positive step. However, the sudden windfall copyright term extension for sound recordings in the recent omnibus budget bill was unfortunate. The leaked IP chapter of the TPP seems to indicate that Canada “caved” on key issues, as Michael Geist explains. But, as noted above, hopefully that damage, if is confirmed, can still be repaired.
IP should not be a partisan issue. IP costs are overwhelmingly paid for by the “middle class” who buy gadgets, pay cable bills, go to the movies, pay for their kids expensive tuition, pay taxes for education, use prescription drugs, consume brand name food and beverages, wear brand name fashion and pay out in countless other ways. Good IP policy is essential to an innovative, independent and competitive Canadian economy. IP is everywhere and that’s why the lobbying is so intense on these files.
Free trade. copyright and the CBC should not be partisan issues. These are issues that should be dealt with on the basis of evidence, analysis and what’s best for Canada.
Mr. Prime Minister-designate, I wish you all the best in your dealing with these and the many other complex issues before you. You have a great elected team and a great public service to help the Government you will lead to undertake these challenges.