Still More Conference Board of Canada Fallout

The Conference Board has taken the next step in damage control arising from its recent plagiarism scandal. Here's today's statement.

The most notable and useful disclosure from the Conference Board is that:

The evidence indicates there was undue reliance on feedback from a funder who was deemed to have important technical expertise.

(Emphasis added)

The Conference Board should identify the funder who provided the “feedback”, and why this funder's “deemed” technical expertise managed to effectively poison the process. It should, as a matter of course, identify all funders of all its reports. This is normal practice, and is absolutely essential if a report is to have any serious credibility in academic, policy, business and government circles. The Conference Board must guard against letting its good name be used by special interest lobbyists in what Dr. Michael Geist calls “policy laundering.”

The report in question was to have been rolled out as a key item at a Conference Board conference on May 29, 2009. Here is the program, which shows a list of sponsors and the Advisory Board of that rather imbalanced and expensive event, which, in fairness, covered quite a lot of material other than copyright. Nonetheless, and despite the breadth of the conference, two of the four members of the “Advisory Board” for the conference were the heads of CRIA and CMPDA. These have been two of the most, if not the most, energetic, persistent and successful (in terms of legislative influence) copyright lobbyist organizations in Canada since the 1980's. It's a fair question to ask whether either or both these two well known and well funded organizations (which represent mainly American interests) were among the funders or were otherwise involved in the specific ill-fated research project now in issue.

BTW, here's what it costs to “sponsor” a Conference Board conference.

Interestingly, the Conference Board has engaged Dr. Ruth Corbin to “to review all relevant research and consult multiple sources, and redo the reports.”

The Board indicates that:

When completed, this work will be presented to a multi-stakeholder Roundtable to be held in the fall. We will publish a summary of the Roundtable discussion, reflecting the full spectrum of views on the issue, as an Appendix to the research.

One can only wish Dr. Corbin and the Board luck in sorting all of this out. The scandal may not reside only in the fact that much of the key content of the now withdrawn work was plagiarized but that much of the IIPA material that was apparently recycled as “research” may have been utterly unreliable to begin with. I'm not sure that it's possible to “redo” that kind of work.

HK

PS & Update - the Conference Board did acknowledge the financial support of several coalition or umbrella groups in this case. But that still leaves questions unanswered - namely who was really actively involved in the sponsored research. See comments below.

PS and update #2 - more connecting of dots and about the courageous Curtis Cook, former employee of the Confernce Board, in a Canwest story here.

Conference Board Volte Face

In a stunning and positive development, the Conference Board of Canada has “recalled” three reports: Intellectual Property Rights in the Digital Economy; National Innovation Performance and Intellectual Property Rights: A Comparative Analysis; and Intellectual Property Rights—Creating Value and Stimulating Investment.

It says today on the front page of its website:

An internal review has determined that these reports did not follow the high quality research standards of The Conference Board of Canada.

This is in stark contrast to the reported statements only yesterday of the Conference Board's Vice President Gilles Rheaume, who recites the now recalled report's main conclusion:

"Basically what is happening is that we are a major laggard when it comes to protecting intellectual property rights on the Internet. That is a big issue for us," said Gilles Rheaume, vice-president, public policy at the Conference Board. "We are the illegal file swapping country of the world - the leading country, when you look at Canada compared to other OECD countries.

"It is certainly an issue when we deal with Americans; it is something that is a sore point for them."

One particular point should be made right away. While I am sure that there will be a lot of fall out and follow up from this unfortunate episode, I do hope that the there are no unfair repercussions for whoever at the Conference Board had the good professional sense to retain Professor Jeremy de Beer in the first place. That was a good call. That his good work was subsequently reportedly ignored was not a good call.

Both Professors Geist and de Beer should be commended not only for their substantive work on these issues but for bravely speaking truth to power. We need more of this from other Canadian academics, who should also learn from Michael and Jeremy's outstanding contributions here.

HK

Conference Board of Canada Controversy & American Based Copyright Lobbying - the Substantive Issues

Those who wish to pay $1,595 to attend a Conference Board of Canada conference this Friday May 29, 2009 that is reportedly being funded in the amount of $15,000 by Ontario taxpayers, according to ITBusiness, at which a controversial Conference Board of Canada report will be presented can find out more information about the Conference here. Prof. Geist has described this as a "deceptive, plagiarized rerport" and there's a front page article about all this in today's Ottawa Citizen.

While there are some good speakers on the list of this Conference Board Conference, the program and speaker list are seriously imbalanced in my view. It is regrettable that prestigious institutions such as the Public Policy Forum last year and the Conference Board of Canada this year allow themselves to be used in this way by lobbyists.

Those wishing to read the 2008 American IIPA lobbyist's report from which the Conference Board report has allegedly taken portions of its content can read it for free here.

These reports on Canada are prepared with the considerable input of a well known Washington lawyer named Steve Metalitz.

As it happens, I debated this very report with Mr. Metalitz at the 2008 Fordham conference, where I presented a paper entitled WHY CANADIAN COPYRIGHT LAW IS ALREADY STRONGER AND BETTER THAN THAT OF THE USA - AND WHY THE USA SHOULD LOOK IN THE MIRROR RATHER THAN AT ITS “SPECIAL 301" WATCH LIST.

This paper shows 15 ways in which Canadian copyright law is already stronger and better than American copyright law. None of those points have been refuted. These include a number of provisions that generate substantial amounts of money that benefit - in some cases mostly and significantly benefit - American interests, and for which the USA has no equivalent counterpart provisions. Here's a simplified "baker's dozen" list of examples from my paper:

1. Payment by broadcasters for "ephemeral rights"
2. Payment for public performance by small business establishments
   
3. Neigbouring rights for sound recording producers and performers
4. Theatrical exhibition rights for composers and authors
   
5. Blank media levies
6. Far higher reprography payments per capita - particularly in educational sector
   
7. Moral rights
8. No compulsory mechanical license
9. About 36 copyright collectives (about six or seven times more than USA)
   
10. Largest copyright tribunal infrastructure of any country that I know of
    
11. No parody right
12. No time shifting exemption
13. Crown copyright, which results in private sector monetization.
    

So - in the current debate, which ironically involves allegations of plagiarism in the context of copyright lobbying - let us not lose sight of the basic underlying issues:

1. In many ways which involve a lot of money flowing out of Canada to US interests, our Canadian copyright laws are already stronger and better than American laws.
2. The USA remains the world's longest and most flagrant outstanding adjudicated international copyright scofflaw, as determined by the WTO now 9 years ago.

HK

Conference Board of Canada Copyright Material Controversy

Prof. Michael Geist has raised in a posting this morning some allegations concerning, inter alia, plagiarism with respect to a report concerning Canadian IP law entitled “Intellectual Property Rights in the Digital Economy” published by the prestigious Conference Board of Canada. I take no position on the substance of these allegations, other than to note the obvious fact that they will be of interest to those concerned with IP and trade policy in Canada and elsewhere. This has been picked up by others, including the very widely read BoingBoing. This issue may well find its way into the main stream media.

The Conference Board, for its part, has published a lengthy defence of its report in a reply to Prof. Geist here entitled "Conference Board defends IPR report". The opening words of the Conference Board response are "In a blog posting today, Michael Geist charged the Conference Board with publishing a deceptive, plagiarized report."

Michael has followed up with a reply to the Conference Board's reponse.

Those who wish to pay $1,595 to attend a Conference Board of Canada conference this Friday, May 29, 2009 at which the report in question will be presented can find out more information about the Conference here.

HK

PS - This has hit the main stream media. See Sarah Schmidt's Canwest story here, which leads off as follows:

OTTAWA — The fight between consumers and the entertainment industry over reforms to Canada's copyright law escalated Monday when one of the country's leading experts on the issue accused the Conference Board of Canada of plagiarizing from a U.S. lobby group's documents to wrongly paint Canadians as the file-swapping capital of the world.

Bordering on Fiction

It’s interesting that the new U.S. Homeland Security Secretary, Janet Napolitano, believes that terrorists have routinely entered the United Sates through Canada — including the perpetrators of the 9/11 attacks. If such ill-informed, clearly harmful and inaccurate myths are really believed by high American officials, the resulting US Government demands could seriously impair ease of travel and increase shipping costs and inconvenience for Canadian businesses. Such measures could render cross border trade uncompetitive in some cases. So much for free trade. Could this all possibly be a disingenuous excuse for more protectionism? Trade lawyers would be shocked, shocked if such were the case.

Speaking of never letting a crisis (whether real or concocted) go to waste, it was apparent at last week's Fordham conference held at Cambridge, England that American USTR and Department of Commerce (USPTO) officials are similarly ill informed about piracy, counterfeiting and Canadian border and IP issues in general. This has clearly driven the USA ACTA and “Special 301" agendas.

The American officials actually do seem to believe that Canada is a major gateway for transhipping fake goods to the USA and that fake goods are actually made here in Canada in quantity. But where is the evidence for this? It seems that a key source of these allegations about Canada is that of Canadian based lobbyists for American content owner interests.

Don't be surprised if, based upon such “evidence”, Canada is promoted to the worst of the worst list on this year's “Special 301" report, expected any day now. Clearly, the Canadian lobbyists who act for their American bosses and profess to be interested in the cause of Canadian artists are getting a lot of traction. Even US Vice President Joe Biden now has Canada in his sights, along with China:

Biden blasted China, saying its intellectual property laws remain "largely ineffective" and will end up "strangling their own creative juices," and compared it to what he described as India's more effective anti-piracy regime. He singled out Canada, a close U.S. ally, as needing stronger laws; it never signed the treaty that led to the Digital Millennium Copyright Act, and a proposal to adopt anti-circumvention restrictions was never adopted.

I'd like to think that our Canadian government is doing its best to inform the US Government of facts, rather than passively letting special interest lobbyists feed unfettered fiction into the American policy making machine.

The fact is that Canada has long had in place very effective border enforcement mechanisms that operate under the jurisdiction of the courts, as they should. “Ex officio” measures that would empower Canadian border officials to decide matters on their own that should be left to the judicial process are not needed or even desirable in Canada. As I've pointed out before, Justice Roger Hughes, who has extraordinary experience as both a Canadian IP litigator and now as a Federal Court Judge, provided an important comment last year at Fordham that takes the wind out of the sails of those who advocate "ex officio" actions at Canadian borders:

Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.

The fact is that counterfeit and pirated products are not freely and openly available on the main streets of major Canadian cities, as they are in New York City, for example. Why blame Canada for a problem that the USA cannot or will not address even in mid-town Manhattan?

As to piracy and counterfeiting in general, the late Sir Hugh Laddie told The Times in a story on June 3, 2008 a few months before his death last year:

"Of course there is counterfeiting in China, but the same goes on in the US and Europe. Pro rata, the biggest source of pirated computer software in the world in the US.”

It’s time for facts about piracy, counterfeiting and what happens at borders. We need to move beyond lobbyists’ fabrications bordering on fiction.

HK

PS:

BTW, if anyone wishes to pay $1,595 for a one day program (which includes lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.