The new copyright law is (supposedly) going to be introduced either this week or next. Really. Finally. Admittedly, after multiple delays and now news that Prentice’s staff are scrubbing his Wikipedia entry, this whole affair is turning into a complete farce. Nonetheless, last week I sent letters to the prime minister and the industry minister again. Here they are – you’ll note the increased level of crankiness from the last letters I sent.
To the PM:
Dear Prime Minister Harper,
My name is David Puglielli and I am a PhD student at Queen’s University in Kingston studying astronomy. I am writing to you to express my dissatisfaction with the process that is being used to formulate a new copyright law. This process lacks transparency and public input and therefore undermines your government’s attempts to increase accountability. I am not addressing the substance of the legislation in this letter; my concern is that the views of millions of ordinary Canadians will not be adequately addressed because of the lack of public input.
I have two questions. First: Why does industry minister refuse to abide by the new Conservative treaty ratification process, which involves tabling international treaties at least 21 days before introducing legislation designed to ratify them? The industry minister has indicated that this legislation is designed to comply with the WIPO internet treaties, and should therefore be subject to the ratification process to which your government has committed.
Second: Why does the industry minister refuse to hold a public consultation on copyright reform before drafting new legislation? Doesn’t he need to know what ordinary Canadians think before introducing such legislation? Copyright reform is a complex topic with many angles that can only be properly addressed with a formal consultation. Such an approach is better than introducing the legislation and only soliciting public input when the bill is in committee.
The initial delay of the legislation in December indicated that many Canadians are worried that their views are not being heard and that the legislation fails to strike the proper balance between consumer rights and the wishes of corporate lobby groups. Your government needs to take this opportunity to launch a formal consultation on the matter before new legislation is introduced. The summer might be a good time to conduct such a consultation.
There is a broad perception that this legislation is being drafted to satisfy American demands for a more stringent copyright regime in a way that addresses the concerns of major entertainment companies but not Canadian consumers. Up until this time, I have been generally impressed with your government’s handling of major policy issues and have considered switching my affiliation to the Conservatives. However, if new legislation overreaches against the interests of consumers, I will be forced to conclude that you cannot be trusted to represent the interests of ordinary Canadians against outside lobbying pressure, especially given your government’s apparent unwillingness to consult the broader public. In my view, this destroys your claim to be more accountable than your predecessors were. It will also destroy any chance that I would consider voting Conservative in a subsequent federal election. If you are willing to be pushed around on this issue, on what other issues will you be pushed around?
I hope that you will consider formally consulting Canadians before introducing this legislation.
To the industry minister:
Dear Industry Minister Prentice,
My name is David Puglielli and I am an astronomy graduate student at Queen’s University in Kingston. I am writing to express my concern over the lack of transparency in the process used to draft copyright reform legislation. I speak as a consumer and computer geek who feels that his views are not being heard by your government.
I wrote to you in December after it became clear that a new law was about to be introduced that would mimic the badly flawed approach of the Digital Millennium Copyright Act in the United States. Now, the rumours are that a modified version of the bill is about to be introduced – one that fails to adequately address the misgivings that many Canadians have about the DMCA’s approach.
I object to this bill on the grounds that your government has failed to conduct a proper public consultation on the issue of copyright reform, and you have failed to table the WIPO Internet treaties 21 days before ratifying legislation is introduced, as the new treaty ratification process requires. Your government swept to power on a promise of increasing accountability; yet, by failing to consult the public on this legislation, that promise is being undermined. Your government needs to consult with all stakeholders in this debate. This includes content creators, scientists, innovators, all members of the Canadian business community, and the millions of Canadian consumers who will be directly affected by this legislation and who, in my view, have not had their voices heard.
There is a strong feeling that your government has allowed itself to be bullied into drafting overly restrictive copyright legislation by outside pressure – primarily, large entertainment conglomerates (which tend not to be Canadian), without accounting for the needs of ordinary Canadians. The needs of ordinary Canadians are nicely outlined by Michael Geist’s fair copyright principles, which are appended. These principles are entirely consistent with your government’s desire to strengthen the intellectual property protections provided to Canadian content creators.
You can remedy the lack of accountability in this process by launching a public consultation process to take place over the summer, before introducing any legislation. It is critical that the process of drafting this legislation bring to light the problems inherent in the DMCA’s overreaching approach, and it is critical that ordinary Canadians have a say in how this legislation is drafted. Failing that, I would hope that your government gives the Industry Committee adequate time to study the matter and hear from witnesses representing all stakeholders. Do not fast track this legislation.
I view this issue as a cardinal test of your government’s willingness to listen to all Canadians and resist outside pressure to enact bad legislation. Your government has claimed to be accountable to Canadians. This legislation will test just how committed your government is to accountability, and when the next election arrives, I will remember how the Conservative government dealt with the issue.
Here are the fair copyright principles, as explained by Michael Geist. Source: http://www.michaelgeist.ca/content/view/2572/125/. Reproduced under the terms of the Creative Commons Attribution 2.0 Canada License, which permits copying and transmitting this work provided it is attributed to the author.
Take the Copyright Pledge. All Members of Parliament should be comfortable with the principle that they will not “introduce, support, or endorse any copyright bill that, either directly or indirectly, undermines or weakens the Copyright Act’s fair dealing provision.” Fair dealing, which forms a crucial part of the copyright balance, is critically important for education and free speech and deserves full support from politicians regardless of party affiliation.
Anti-circumvention provisions should be directly linked to copyright infringement. The anti-circumvention provisions have been by far the most controversial element of the proposed reforms. The experience in the United States, where anti-circumvention provisions effectively trump fair use rights, provides the paradigm example of what not do to. It should only be a violation of the law to circumvent a technological protection measure (TPM) if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing or private copying purposes. This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the World Intellectual Property Organization’s Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the U.S. law.
No ban on devices that can be used to circumvent a TPM. Canada should not ban devices that can be used to circumvent a TPM. The reason is obvious – if Canadians cannot access the tools necessary to exercise their user rights under the Copyright Act, those rights are effectively extinguished in the digital world. If organizations are permitted to use TPMs to lock down content in a manner that threatens fair dealing, Canadians should have the right to access and use technologies that restores the copyright balance.
Expand the fair dealing provision by establishing “flexible fair dealing.” Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent). The Supreme Court of Canada has already ruled that Canada’s fair dealing provision must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting) that renders everyday activities such as recording television programs acts of infringement. The ideal remedy is to address other categories such as parody, time shifting, and format shifting by making the current list of fair dealing categories illustrative rather than exhaustive.
Establish a legal safe harbour for Internet intermediaries supported by a “notice and notice” takedown system. The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world. Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats. Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners. The ideal Canadian approach would be a “notice and notice” system that has been used successfully for many years on an informal basis.
Modernize the backup copy provision. As part of the 1988 copyright reform, Canadian copyright law was amended to allow for the making of backup copies of computer programs. In 1988, backing up digital data meant backing up software programs. Today, digital data includes CDs, DVDs, and video games. All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional. From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment. “Modernizing” copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.
Rationalize the statutory damages provision. Canada is one of the only countries in the world to have a statutory damages provision within its copyright legislation. It creates the prospect of massive liability – up to $20,000 per infringement – without any evidence of actual loss. This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for one peer-to-peer file sharing defendant and leaves many defendants with little option but settlement. Before Canada faces similar developments, we should amend the statutory damages provision by clarifying that it only applies in cases of commercial gain.
Include actual distribution in the making available right. The new bill will likely include a “making available” provision that will grant copyright holders the exclusive right to make their works available. While there is reason to believe that Canadian law already features a making available right, any new provision should require actual distribution, which ensures that liability only flows from real harm.