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Thursday May 6, 2010
Covering the Return of the Canadian DMCA
Yesterday's post on the government's plans for the copyright bill generated widespread coverage both online and in the mainstream media.  There were many notable blog posts from creators (here, here) and other sites (here, here, here, here, here, here). The media picked up on the story:

The articles themselves are home to hundreds of comments, with the CBC article alone featuring more than 700 comments in less than 24 hours.  The Wire Report includes a comment from Barry Sookman, CRIA's lawyer, arguing that leaking information was inappropriate and that the post is trying to "put pressure on the government to change a decision that is already made."

While Canadian Heritage Minister James Moore and the Prime Minister's Office were unsurprisingly mum on the contents of the bill, Liberal MP Justin Trudeau didn't mince words in this tweet: "Forget the hockey spat; DMCA is where @mpjamesmoore and I REALLY disagree."

Update: It was brought to my attention that the CBC report says I that said that the bill will end fair dealing. I said no such thing. I did not speak to CBC before the publication of that article and the post on which it is based clearly refers to flexible fair dealing reform, not the elimination of fair dealing.

Wednesday May 5, 2010
PMO Issues The Order: Canadian DMCA Bill Within Six Weeks
Months of public debate over the future of Canadian copyright law were quietly decided earlier this week, when sources say the Prime Minister's Office reached a verdict over the direction of the next copyright bill.  The PMO was forced to make the call after Canadian Heritage Minister James Moore and Industry Minister Tony Clement were unable to reach consensus on the broad framework of a new bill.  As I reported last week, Moore has argued for a virtual repeat of Bill C-61, with strong digital locks provisions similar to those found in the U.S. Digital Millennium Copyright Act and a rejection of a flexible fair dealing approach. Consistent with earlier comments on the need for a forward-looking, flexible approach, Clement argued for changes from C-61.

With mounting pressure from the U.S. - there have been repeated meetings with senior U.S. officials in recent weeks - the PMO sided squarely with Moore's vision of a U.S.-style copyright law.  The detailed provisions will be negotiated over the coming weeks by the respective departments, but they now have their marching orders of completing a bill that will satisfy the U.S. that comes complete with tough anti-circumvention rules and no flexible fair dealing provision. 

The bill is not expected until June, but it will have dramatic repercussions once introduced.  First, the bill represents a stunning reversal from the government's seeming shift away from C-61 and its commitment to a bill based on the national copyright consultation.  Instead, the consultation appears to have been little more than theatre, with the PMO and Moore choosing to dismiss public opinion. Second, after adopting distinctly pro-consumer positions on other issues, Moore has abandoned that approach with support for what may become the most anti-consumer copyright bill in Canadian history.  Third, the bill will immediately impact the Canadian position at the ACTA and CETA negotiations, where the bill's provisions on anti-circumvention and ISP liability will effectively become the Canadian delegation position.

For those wondering what can be done, my only answer is to speak out now. Write a paper letter to your Member of Parliament and send copies to the Prime Minister, Moore, Clement and Liberal leader Michael Ignatieff.  No stamp is required - be sure to include your home address and send it to the House of Commons, Ottawa, ON, K1A 0A6.  Once that is done, join the Facebook group and the Facebook page and be sure to ask others do the same. You may spoken out before, but your voice is needed yet again.
Monday May 3, 2010
ACTA: Why You Should Still Care
This post appears as a guest column on GigaOm today: After years of secrecy, the eighth round of talks aimed at drafting an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA) recently concluded in New Zealand - and in the face of public pressure, a version of the text was subsequently made available to the public. The ACTA is neither a trade agreement nor one focused primarily on counterfeiting, but a copyright deal featuring provisions on Internet service provider and Internet company liability, DMCA-style notice and takedown requirements, legal protection for digital locks, and requirements for statutory damages that could result in millions in liability for non-commercial infringement - even heightened searches at border crossings. Ever since the ACTA partners - among them the U.S., E.U., Canada, Japan, South Korea, Australia, New Zealand, Mexico, Morocco and Singapore - announced negotiations plans in October 2007, ACTA has been dogged by controversy over a near-total lack of transparency. Early talks were held in secret locations with each participating country offering virtually identical, cryptic press releases that did little more than fuel public concern. Now that the ACTA text is public, some might wonder whether there’s still cause for concern. Indeed, given widespread support for measures that target genuine commercial counterfeiting, some might believe it’s time to actively support ACTA. It’s not - at least not this version.
Still secret

From a transparency perspective, the text release still feels like the exception to the general secrecy rule. The ACTA governments have revealed that the next round of negotiations will take place in Switzerland in June, but currently refuse to provide a specific location or dates. Moreover, the official release scrubbed all references to country positions (such information was available in a previously leaked version), so as to U.S. government claims that ACTA is fully consistent with current U.S. law, at this point we have to take their word for it.

Different region, different rules

Of even greater concern are the provisions themselves. Because of the large number of substantive rules and the differences in domestic law among the ACTA countries, fears about specific provisions vary from region to region. In the U.S., ACTA might means the rules for obtaining injunctions would have to be changed, removing some of the balancing safeguards that currently exist. In Europe, ACTA’s privacy implications have generated concern from data protection authorities and the prospect of mandatory statutory damages, which has led to the multimillion-dollar file-sharing lawsuits in the U.S., would represent a major change in the law there.

Virtually every member country would have to amend its own rules and regulations: Japan would have to change its laws to require ISP policies on allegations of subscriber infringement, Australia would need anti-camcording rules, New Zealand would have to change its anti-circumvention rules and Canada would be forced to adopt a notice-and-takedown system similar to the one found in the U.S. Of course, the many countries excluded from the ACTA talks - including China, Brazil and India - would likely face pressure to conform to ACTA standards and if they complied, even more dramatic changes.

Behind closed doors

Beyond the fundamental reshaping of intellectual property law on a global scale, ACTA is also reframing how those laws are made. The alphabet soup of international organizations typically responsible for such issues - WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD - are all far more open, transparent and inclusive than ACTA.

Moreover, final approval of ACTA raises significant constitutional issues. In the U.S., ACTA is being treated as executive agreement in a blatant attempt to sidestep Congressional approval. Across the pond, the European Parliament has demanded far greater involvement in the ACTA process, but has been largely rebuffed by the European Commission, which heads its delegation.

Public pressure helped make ACTA marginally better, but the release of text only confirms many of the fears regarding the substance of the treaty. Add in the ongoing transparency and process concerns and it is clear that public engagement on ACTA is needed now more than ever.
This post appears as a guest column on GigaOm today:

After years of secrecy, the eighth round of talks aimed at drafting an international treaty called the Anti-Counterfeiting Trade Agreement (ACTA) recently concluded in New Zealand - and in the face of public pressure, a version of the text was subsequently made available to the public. The ACTA is neither a trade agreement nor one focused primarily on counterfeiting, but a copyright deal featuring provisions on Internet service provider and Internet company liability, DMCA-style notice and takedown requirements, legal protection for digital locks, and requirements for statutory damages that could result in millions in liability for non-commercial infringement - even heightened searches at border crossings.

Ever since the ACTA partners - among them the U.S., E.U., Canada, Japan, South Korea, Australia, New Zealand, Mexico, Morocco and Singapore - announced negotiations plans in October 2007, ACTA has been dogged by controversy over a near-total lack of transparency. Early talks were held in secret locations with each participating country offering virtually identical, cryptic press releases that did little more than fuel public concern. Now that the ACTA text is public, some might wonder whether there’s still cause for concern. Indeed, given widespread support for measures that target genuine commercial counterfeiting, some might believe it’s time to actively support ACTA.

It’s not - at least not this version.

Monday April 26, 2010
Canadian Heritage Minister James Moore: The iPadLock Minister?
Since his appointment as Canadian Heritage minister in 2008, James Moore has carefully crafted an image as "Canada's iPod Minister." Young, bilingual, and tech-savvy, Moore has expressed regular support for the benefits of the Internet and is always ready with a quick "tweet" for his many followers.  Yet as my op-ed in the Hill Times notes (HT version (sub required), homepage version), according to the scuttlebutt throughout the copyright community, Moore may be less iPod and more iPadlock. As the government readies its much-anticipated copyright package, Moore is said to be pressing for a virtual repeat of Bill C-61, the most anti-consumer copyright proposal in Canadian history.

Moore's about-face on copyright will come as a surprise to those who have heard his enthusiasm for new technology and the Internet.  In June 2009, Moore told Industry Minister Tony Clement's Digital Economy conference that "the old way of doing things is over.  These things are all now one. And it's great. And it's never been better. And we need to be enthusiastic and embrace this things."

Those comments were quickly followed by the national copyright consultation that generated thousands of responses, the majority of which called on the government to abandon the C-61 approach in favour of copyright rules that struck a better balance between the interests of creators and consumers.

Tuesday April 20, 2010
The 2009 Copyright Consultation: Setting the Record Straight
Toronto IP lawyer Richard Owens has posted an analysis of last summer's national copyright consultation in which he concludes that "if the aim of the Consultation was to canvass public opinion and discern trends, it failed." Given that the copyright consultation attracted greater participation than virtually any government consultation effort in recent memory, it is hard to see how it can be deemed a failure from a participation and public opinion perspective.  In fact, the government itself clearly recognizes the exceptional participation last summer.  Last week in the House of Commons, Conservative MP Cheryl Gallant noted:

The participation was unprecedented and we welcomed the comments of rights holders, users, intermediaries and everyday Canadians. We know that Canadians are concerned with copyright and its implications in our increasingly digital environment. This was demonstrated by the thousands of Canadians who took the time to participate in one way or another.

Owens arguments centre on the following four issues:
  1. The majority of the responses were form letters and those should be discounted.
  2. The majority of form letters were generated from a single website - CCER - that had the potential to "game" the system.
  3. Many of the submissions were not well-informed.
  4. The demographics of the consultation participants was not sufficiently representative of the Canadian public.

Parliament Votes To Extend Private Copying Levy in Non-Binding Motion

The Liberals, NDP, and Bloc joined forces yesterday to support a non-binding motion that calls for the extension of the private copying levy to other media such as iPods.  The Conservatives, who have labeled the proposal the iTax, opposed the motion.

Wednesday April 14, 2010
Copyright Secrets? Canadian Heritage Receives "F" On Access To Information Compliance
The Interim Access to Information Commissioner Suzanne Legault released a new report yesterday on government compliance with the Access to Information Act.  The report concludes that the right to obtain federal documents is at risk of being "totally obliterated."  For readers of this blog, three departments figure most prominently in the ATI system: Industry Canada, Canadian Heritage, and Foreign Affairs. 

Industry Canada fared pretty well, scoring a respectable "B", with the Commissioner noting that it faced a 93 percent increase in requests. Far more problematic were Foreign Affairs and Canadian Heritage.  Foreign Affairs, which has primary responsibility for ACTA, was so bad it did not even receive an "F".  The department takes longer than any other in the government and while it hired new staff to handle a massive backlog, those staff were let go after one year, meaning that things will get worse before they get better. 

Canadian Heritage, which regularly receives requests on copyright and cultural policy, received an "F" with very troubling analysis.  For example, the report states:

Despite the fact that access to information is a statutory requirement, access to information officials at Canadian Heritage reported during the interview for this report card that the function is given considerably less priority than the institution’s mandate-related programs.

The review process involves multiple layers and delays, with Minister James Moore's office receiving a copy of each disclosure package.  The departmental response suggests that things may change, but the department - which once was fairly quick and responsivee - is clearly now understaffed and the concerns about a secretive approach apparently well justified.
Friday April 9, 2010
The Final Copyright Consultation Numbers: No Repeat Of Bill C-61
The copyright consultation concluded last fall and it seems worth reminding Canadian Heritage Minister James Moore and Industry Minister Tony Clement what Canadians had to say when they asked for their opinion on copyright reform.  It has taken some time to calculate the final numbers as the government conducted a review to ensure that all were properly posted. There were ultimately more than 8,300 submissions - more than any government consultation in recent memory - with the overwhelming majority rejecting Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.
The copyright consultation concluded last fall and it seems worth reminding Canadian Heritage Minister James Moore and Industry Minister Tony Clement what Canadians had to say when they asked for their opinion on copyright reform.  It has taken some time to calculate the final numbers as the government conducted a review to ensure that all were properly posted. There were ultimately more than 8,300 submissions - more than any government consultation in recent memory - with the overwhelming majority rejecting Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.

The copyright consultation concluded last fall and it seems worth reminding Canadian Heritage Minister James Moore and Industry Minister Tony Clement what Canadians had to say when they asked for their opinion on copyright reform.  It has taken some time to calculate the final numbers as the government conducted a review to ensure that all were properly posted. There were ultimately more than 8,300 submissions - more than any government consultation in recent memory - with the overwhelming majority rejecting Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.

Friday April 9, 2010
The Final Copyright Consultation Numbers: No Repeat Of Bill C-61
The copyright consultation concluded last fall and it seems worth reminding Canadian Heritage Minister James Moore and Industry Minister Tony Clement what Canadians had to say when they asked for their opinion on copyright reform.  It has taken some time to calculate the final numbers as the government conducted a review to ensure that all were properly posted. There were ultimately more than 8,300 submissions - more than any government consultation in recent memory - with the overwhelming majority rejecting Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.

Thursday April 1, 2010
Clement and Moore on C-61, Copyright Reform and Innovation
As Industry Minister Tony Clement and Canadian Heritage Minister James Moore continue to work on a copyright reform package, it is worth reviewing comments from both Ministers over the past year about C-61, copyright reform, and innovation.  The vision presented is that the world has changed since C-61, Canada has flexibility in how it implements digital reforms, and that technology and the Internet should be embraced as a great opportunity.

Clement on C-61 in July 2009 at the Calgary roundtable:

"C-61 doesn't exist anymore, it obviously died with the last Parliament, and if you think that there are other ways that we should frame new legislation, by all means please bring that to our attention as well. Don't feel constrained by the formulation in C-61. James and I are of the view that already some aspects of that Bill are out of date such as the movement of technology."

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