Follow Up on Bill C-86 – The Omnibus Bill that Amends Canadian IP Law

Bill C-86 has already been given second reading and is at the Finance Committee of the House of Commons. Yesterday, November 7, 2018, in the Finance Committee, there were about 10 minutes in total testimony by Grant Lynds, past President of the Intellectual Property Institute of Canada(“IPIC”) and Michael Geist in his own capacity on There were some subsequent questions. This takes place in the second hour of the webcast.

IPIC is the main professional association that represents intellectual property lawyers and agents in Canada. (I have been a member of IPIC forever and have spoken at many IPIC annual meetings). Michael Geist needs no introduction.

Mr. Lynds made some important points about file wrapper estoppel and how an immediate change may impact pending prosecutions and litigation. He also raised some important points about the proposed College of Patent and Trademark agents.

Michael Geist was largely positive about the package but concerned about the need for regulations re patent and copyright trolling notices and a need for an exception for informational analysis for text and data mining exception.  Michael did not deal at this time with the issue of whether the existing copyright law is adequate to implement the necessary regulations to prohibit the inclusion of settlement demands in s. 41.25 and 41.26 notices. In my humble opinion, it is, and it is inexplicable that this hasn’t been done in the last six years.  The question of patent trolling notices and demand letters is potentially much more complex and controversial and may yet not be ripe for specificity in the form of a detailed statutory requirement or even a regulation.

Both Grant and Michael were invited to provide “one line” drafts of amendments about their concerns.

Their concerns are not necessarily susceptible to one-line cures – at least not without considerable potential controversy. And both have many concerns that go way beyond one-line solutions. And needless to say, these two people – able as they are – can hardly speak for all in the IP community.

Neither Grant nor Michael were critical of the omnibus process of this bill, which was disappointing. Even if they mostly like this bill – apart from the serious concerns both raised which are not fixable by one-line amendments – this sets a dreadful precedent for the future. I’m surprised that neither made that point.

It was noted, if I heard correctly, that amendments must be proposed by November 15, 2018 and “clause by clause” will take on November 20, 2018.

There’s no downside in carving out the 100 pages or so of IP provision in C-86 and putting them into a separate IP bill – for which there are many precedents – which could get a few days worth of necessary, dedicated, and informed committee hearings and debate.

Instead, it looks like this will get literally only a few minutes – with perhaps of couple of “one line” token amendments… that may well be controversial and will certainly deal only with the tip of the iceberg.

There is no precedent in Canadian IP history for this massive bypass of parliamentary democracy. There is no urgency here to justify this departure from democracy.

While none of the provisions are obviously “evil”, some are potentially complicated and fraught with uncertainty and unintended consequences.

On the good news front, the LEGISinfo site indicated that the Senate Banking, Trade and Commerce Committee, which include Senator Joe Day – a former IP practitioner – and which has done good IP work before, for example on the Copyright Board, will hold hearings on the IP part of his bill even before it gets to the Senate.

On the bad news front, it also is unusual for the Senate to do is review in advance and this confirms the unseemly and completely unnecessary haste inherent in this unprecedented and unwarranted omnibus approach to IP law review in Canada.

HPK

Global News Interviews Michael Geist and Me about #Bill C-11 and #SOPA

I was interviewed online today by Global News, My comments, along with those of Michael Geist, appear online here. Part of my responses appear to have been inadvertently omitted online but appears below.

GLOBAL:
There has been an information overload about both SOPA and Bill C‑11. Readers have understood that these proposals would protect musicians, filmmakers and writers from having their work stolen and distributed over the Internet, but what's been misconstrued is what potential changes would mean to Canadians using the Internet. How would Bill C‑11 affect Canadians' experience online? How would SOPA affect Canadians' experience online?   

HPK:

First of all, we have to distinguish between the Bill C-11 that we see now - and the one waiting in the wings, which will include SOPA-like amendments that will supposedly be "technical" but may be very far reaching if certain lobbyists such as Mr. Barry Sookman, who wrote today in the National Post, get their way. I can only address the Bill in front of us. While it will supposedly create more freedom for consumers to engage in format shifting, time shifting, private copying, fair dealing and other "users' rights", it will actually be a big step backwards because virtually all of those gains - which we should have had long ago and which American's already largely enjoy - will be rendered nugatory by the iron-clad technical protection measures. These "TPMs" can prevent Canadians from watching a perfectly legal DVD made in India, or cutting and pasting for an educational project or a documentary, from using locked material in the public domain, or from making a backup of expensive game, BlueRay, or computer program product. Canadians will end up with less rather than more access to knowledge and entertainment products and pay higher prices for what they are allowed to do. Users' rights will be determined by lawyers and executives in Hollywood and New York and imposed by TPMs, the circumvention of which will be illegal even if the use is not.

SOPA, if had been enacted, could have shut down all kinds of Canadian websites - including perfectly legitimate ones - based upon an  extremely aggressive extraterritorial approach with very little due process that would require Canadians and other foreign parties to defend themselves in American courts at enormous expense and with little chance of success. This is not just paranoid fear mongering. Those who fought for SOPA have been trying their best in the American courts to shut down YouTube for several years just because of cute cat and baby videos that supposedly infringe entertainment industry content. SOPA would have enabled this kind of overreach.

GLOBAL:

What are the differences and similarities between these two potential pieces of legislation? Do they have the same protections?


HPK:

Canada's Bill C-11 and the US SOPA bill are very different on the surface. Bill C-11 is far more balanced in many respects, if only because it is more of an omnibus revision. Prof. Michael Geist has pointed out its several positive points. However, both bills would achieve the same ultimate end, which is the protection of legacy business models and the unnecessary inhibition of digital innovation. Bill C-11 is a very general bill that has been in the works for many years in various iterations. SOPA is the latest and perhaps most blatant example of US entertainment overreach aimed at blocking or inhibiting new technology. First it was the player piano. Then radio. Then VCRs. Now, it's the internet. And there were many other attacks in between.

GLOBAL:

While sifting through stories and community blogs in my research, I've read that the Stop Online Piracy Act could even affect sites, such as YouTube among others B Megaupload.com, IsoHunt.com, surfthechannel.com. What websites would we see shut down in Canada once these bills become law? To clarify to concerned Canadians, what sites won't be affected?

HPK:

It's quite clear that the laws that are already in place in the USA and Canada can work against the truly bad actor "rogue" sites. However, the entertainment industry has squandered most of its goodwill by focussing in the USA on suing children, college students and dead grandmothers. Now they want the U.S. Government to take over at taxpayers expense and enforce their private rights with heavy handed blunt-force legislation. In Canada, we have good tough laws in place that are much stronger than U.S. laws in many crucial respects.    But the entertainment industry has been unwilling to use these laws to their full effect because they want even tougher and overreaching laws that would enable easy overkill. They haven't made their case that the current laws are inadequate because, for whatever reason, they have not fully utilized them. They would rather claim that they don't work or are inadequate, even if this claim is incorrect.  If they had used these laws, pushed forward and actually lost in a timely, properly and vigorously contested court case, then they might have a real case to ask for tougher legislation in Canada. But this has not happened.

GLOBAL:

Do you think that much of the discussion is escalating into fear mongering or should Canadians have some concern in these potential laws and how they'd affect their ability to share information online?

HPK:              

The most important thing I learned at law school is that any legislation or court decision should be viewed in the light of the worst possible and most absurd result it could produce - because this is what usually follows and sooner rather than later. So, in the USA, the music industry is still pursuing a judgment of almost $2 million against a single mother for downloading 22 songs. We have seen a home video of a baby dancing to Prince's barely recognizable music being taken down. We have countless well documented examples of the "chilling effects" on research, education, speech and expression through overreaching current laws.  According to many proposed definitions of "rogue site" or “enabler”, the biggest offender would be Google. You can find all the infringing material you could ever imagine of simply by doing a Google search.  Would anyone try to take Google down?  The answer is that there is already a longstanding mega battle underway to take down YouTube, which Google owns. So, even Google itself could be a target for litigation. Collateral damage? No problem for the entertainment industry, which sees this as the "war on piracy" and has actually gone so far as to link it to the war on terrorism not only in terms of moral panic rhetoric but with suggestions that funds from counterfeit DVDs fund real terrorists. 

GLOBAL:

SOPA led to a historic day of online blackouts on Wikipedia, Reddit, Mozilla and others who closed their sites in an appeal to users to get in touch with their Congressional representatives to argue against the passage of the two bills. What is your stance on these sites protesting these changes? Is Bill C‑11 flying under the radar compared to SOPA and if so, why do you think this is happening?

HPK:

First, this is Canada and we are generally less excitable about than Americans, unless hockey is involved. Second, we don't have big home grown industry players fighting back directly and with so much resources as is now the case in the USA with Google, etc. We do have highly respected communications companies and the Retail Council of Canada (a client of mine) making some important and principled points and taking a stand for their customers. In Canada, the lobbying is more subtle and the resources available are much less than in the USA.  For example, Google is much less visible on the policy front in Canada than in the USA.  The educational and library sector is much less assertive in Canada than in the USA. Moreover, many of the most important issues in Canadian copyright law are being dealt with by the Copyright Board, which has been given sweeping power by Parliament to devise and implement “tariffs”. This process results in almost half a billion dollars of copyright payments by Canadians per year that add to the cost of everything from blank CDs to K-12 education to retail prices on countless products. There are about 36 collectives working hard to increase these payments even more, There is simply no counterpart in the USA to some of the most important Canadian tariffs and collectives, and no organization comparable to the Copyright Board.  This process is largely “under the radar” to most Canadians.


HPK

The iPod "Tax": Misinformation re Heritage Committee's Report

It seems necessary to dispel certain inaccurate and misleading blog commentary about what actually happened in the Heritage Committee yesterday concerning the NDP's proposed iPod “tax”.

It is simply not correct to state, as James Gannon puts it in his blog, that:

To be clear, the MPs who voted in favour of this motion were not voting “for”, or signalling any kind of “support” for, this amendment to the Copyright Act, but merely voting for the Committee to consider the amendment at a later time.

That's not what happened. Here is what actually happened - according to the official source, which is Parliament itself. This, according to the Committee's official website, is what the Heritage Committee actually said:

Pursuant to Standing Order 108(2), that the Committee report the following to the House as soon as possible:

That the Committee recommends that the government amend Part VIII of the Copyright Act so that the definition of “audio recording medium” extends to devices with internal memory, so that the levy on copying music will apply to digital music recorders as well, thereby entitling music creators to some compensation for the copies made of their work.
(emphasis added)

That seems pretty clear to me and quite clearly contradicts Mr. Gannon's speculation. Here are the minutes of the meeting, which back up the Report.

The rest of Mr. Gannon's blog is largely a polemic against Prof. Michael Geist for "an over-politicization of the actual facts" and other various allegations.

However, all that Prof. Geist did in his blog was to describe succinctly and accurately what happened in the Committee, and the party affiliation of the members involved, along with the position of the two responsible Ministers of the Crown. That is essential information for anyone who tracks legislation. How exactly the provision of such information is "politicization" is quite incomprehensible.

Ironically, Mr. Gannon's blog is entitled “Depoliticizing the iPod levy”. Even more ironically, his concluding paragraph begins with this otherwise agreeable sentiment:

As the experience with "Fox News" in the U.S. has shown, by highly politicizing debated issues, the public will often be swayed into a narrative with "good guys" on one side of the political spectrum and "bad guys" on the other.

It strikes me that Mr. Gannon is the one who is being rather too political in this instance.

Mr. Gannon, who was called to the bar in 2009, is an associate at McCarthy, Tétrault, working under Barry Sookman, a well known lawyer/lobbyist for some very politically savvy clients, i.e. CRIA, CMPDA, and the Canadian Chamber of Commerce. While Mr. Gannon may very well have been speaking on his own, Mr. Sookman was very quick to tweet a link to his blog.

HK

March 18, 2010

PS - Speaking of "politicization" of copyright, here' s Mr. Sookman's latest blog entitled "Should Canada adopt “fair use” as proposed by NDP MP Charlie Angus?" wherein he says:

The fundamental role of copyright in Canada will not be lost on the Bloc and Liberals with strong roots in the Province of Quebec, or on the Tories with strong ambitions in that province.

(emphasis added)

I wonder how Mr. Gannon would characterize this analysis.

PS #2:

Mr. Gannon has now issued a "correction" to his post from yesterday.

Michael Geist's EFF Award

Congratulations to Michael Geist on his EFF award.

Michael has done a superb job of teaching, challenging and pushing the envelope on issues such as copyright law, privacy, net neutrality and, above all, the right of Canadians to determine what’s best for our own sovereign country on these and other important issues. And he has taken this to a world stage.

I hope that this award serves as an example to other academics in Canada to speak out on important issues. That is their responsibility and should be the quid pro quo for their tenure. Too many Canadian academics have been too silent for too long, perhaps because they have been too comfortable.

Not Michael.

Michael has been threatened with litigation by the Hon. Sarmite Bulte:

"I am not going to sue him before the election but dammit, watch me after the election."

An influential lobby group went after him for his Toronto Star column:

"It seemed clear that the only outcome that would satisfy [CRIA] was getting rid of Geist, which wasn't even remotely in the cards."

And he has faced other confrontations and attacks from powerful forces on Bay Street and elsewhere.

Bravo, Michael. Canada needs you.

HK