Amazon.ca is now well-entrenched in the Canadian e-commerce landscape and seeks to create its own Canadian distribution channel.  The plan requires government approval, which recently led to predictable outcries from the Canadian Booksellers Association.  The CBA wrote to Canadian Heritage Minister James Moore - who must decide the issue - to urge him to reject Amazon’s application.  

It argued that Amazon’s entry would "detrimentally affect independent businesses and would raise serious concerns over the protection of our cultural industries. Individual Canadian booksellers have traditionally played a key role in ensuring the promotion of Canadian authors and Canadian culture. These are values that no American dot.com retailer could ever purport to understand or promote."

The CBA’s attempt to cloak the issue as a matter of Canadian culture is unsurprising, but Moore should recognize this for what it is - a transparent attempt to hamstring a tough competitor that ultimately hurts the Canadian culture sector.

Evidence of the benefits of major retailers to Canadian culture comes directly from a 2007 Turner-Riggs report commissioned by Canadian Heritage on the Canadian book retail sector.  It pointed to a Quill & Quire study that found that consumers were far more likely to find Canadian titles in the large chains than in smaller independent stores.  

Moreover, a second study of sales from eleven small Canadian literary presses found that online sellers represented the largest source of sales growth, while both chain and independent booksellers experienced relatively static sales.

Neither of these findings should come as much of a surprise.  The scarcity of space in brick and mortar bookstores has long been a key concern for Canadian authors and publishers, who fear that their titles might get squeezed off the shelves.  

Big chain retailers alleviated those concerns to some degree by offering up far more space for titles of all origins (though at a cost of greater reliance on those chains and a weaker bargaining position on commercial terms). Online sellers such as Amazon removed the scarcity concerns altogether, since the number of books the company can offer is unlimited.  

That undoubtedly means more competition, yet it also ensures that fears consumers will be unable to access Canadian titles have disappeared.  Indeed, the report concludes "the visibility of Canadian titles - and Canadians' access to them - in online book retail rose significantly with the launch of Amazon.ca and its considerable selection of Canadian- sourced inventory."

In 2000, the Standing Committee on Canadian Heritage conducted hearings on the Canadian book market.  The resulting report - The Challenge of Change: A Consideration of the Canadian Book Industry - recommended that the government "ensure that no foreign investor is allowed to take over a Canadian firm in the book industry unless credible assurances are made that the investment will increase the availability of Canadian-authored books."

The experience of the past decade has demonstrated that greater retail competition does increase the availability of Canadian books. While the book industry may still require support to bring Canadian books to market, restrictions on who may sell or distribute those books represent a harmful barrier from a bygone era.

The attempt to expand the private copying levy in Bill C-499 is more problematic. I am not as opposed to private copying as some, but I think expanding the system in this manner raises real concerns.  First, I think we need to work on fixing the system before we work on expanding it.  There are ongoing concerns about distribution of proceeds, copying vs. making available, and overbroad coverage of the levy that should be addressed.

Second, the bill expands the levy to audio recording devices, defined in C-499 as "a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device."  This covers everything - iPods, iPhones, Blackberries, Androids, iPads, personal computers.  While the CPCC (the private copying collective) may not target all of these devices, there is nothing in the bill that prevents them from doing so.

Third, the bill deals solely with sound recordings, but there have already been calls to extend to video and other forms of content.  Expanding the levy in this manner without addressing those issues leaves open the prospect of an even bigger levy in the future.

Fourth, the competitive concerns associated with levies on devices cannot be ignored.  The last attempt to place a levy on iPods led to charges as high as $75 per device.  That market distortion leads consumers to purchase outside Canada, which means no levy, no sales taxes, and lost retail sales.

Fifth, we need to think about the interaction between private copying and anti-circumvention rules.  The industry is pushing for anti-circumvention rules that would prohibit Canadians from picking the digital lock on copy controls found on CDs.  If Canadians have paid for the right to copy via the levy, surely those rights should not be trumped by the use of DRM.  Yet that is precisely what both Bills C-60 and C-61 proposed.

Sixth, the industry cannot have the levy and continue to claim that Canada is an illegal downloading haven.  Canadians have paid more than $250 million in fees associated with the levy and the Angus bill would ratchet that up dramatically. 

Angus' comments in the House of Commons this morning are posted below:

Mr. Speaker,

I rise today to submit a bill  to update the Canadian copyright Act, which extends the Private Copying Levy to the next generation of devices that consumers are using for copying sound recordings for personal use. 

The private copying levy is a long-standing Canadian solution that has compensated artists for some of the enormous copying that is taking place.
At the same time, updating the levy will provide legal certainty for fans to copy songs onto an i-Pod or MP3 player.

The levy is a compromise that works. In a world of endless downloading and copying, it provides a monetizing stream for the artists who create such phenomenal cultural works.

Mr. Speaker, there are two dead end roads on the copyright debate. The first dead end is the belief that digital locks, predatory lawsuits and zero tolerance on access can push consumers back in time.

The other dead end is the belief that all the great works of film, music and art can be looted at will.

If we are going to move down the right road we must get serious about securing a monetizing stream for creators.

Canada has a chance to strike the right balance:
No. 1: artists have a right to get paid. This is why I am bringing forward the bill on updating copying levy.
No. 2. Consumers, educators and researchers have a right to access those works - which is why I will be tabling a motion on defining fair dealing to protect those rights.

Mr. Speaker, the New Democratic Party will continue to work to ensure that copyright laws are updated to protect artists while ensuring access to these amazing works.

As you know, CAP was created in 1995, when Internet technologies and participation in the new knowledge-based economy had not yet penetrated the Canadian socio-economic landscape. Since that time, broadband Internet service in Canada has increased considerably:94 percent of Canadians now live in a community where broadband access is available for purchase. In fact, since 2008, almost all urban households and over three quarters of rural households have had access to broadband service. An estimated 8 in 10 Canadians presently use the Internet on a regular basis. In addition, alternative forms of public Internet access are now available throughout most of Canada.

The world has changed, but Moll points out that CAPs have served as a valuable resource for many communities.

Article 2.1 Availability of Civil Procedures
1. No Change
2. No Change

Article 2.2 Damages
1. No Change
2. No Change
3. Wording Change:
 

Original	New
Each Party shall provide that the right holders shall have the right to choose the remedy in paragraph 2 as an alternative to the remedy in paragraph 1.	Each Party shall provide that the right holder shall have the right to choose the system in paragraph 2 as an alternative to the damages in paragraph 1.

4. Change – transposed words

Original

New

Each Party shall also provide that its judicial authorities, [Option US: at least in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting] shall have the authority to order, [Option US: except in exceptional circumstances][Option J: in appropriate cases], that the  prevailing party be awarded payment by the losing party of reasonable attorney’s fees.

Each Party [US/J:shall] also provide that its [US/J: judicial] authorities, [US/Can/Mor/MX/NZ: except in exceptional circumstances], [US/Can/Aus/Mor: {US/Aus/Mor: at least }in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting,] shall have the authority to order, [J/Can/Aus/NZ: in appropriate cases], that the prevailing party be awarded payment by the losing party of [US/J: reasonable] attorney's fees

Article 2.3 Other Remedies
1. No Change
2. No Change
3. No Change

Article 2.4 Information related to Infringement

Change – Addition of words

Original	New
Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide, for the purpose of collecting evidence…	Each Party shall provide that in civil judicial proceedings concerning the enforcement of [US/J: intellectual property rights], its judicial authorities shall have the authority upon a justified request of the right holder, to order the infringer to provide, [US/J; for the purpose of collecting evidence]…

Article 2.5 Provisional Measures
1. No Change
2. No Change
3. No Change

The U.S. position for the moment appears closer to "take it or leave it" with the bet that many ACTA partners will see little political alternative but to take it.

Democracy depends upon a fair, accurate, and transparent electoral process with outcomes that can be independently verified.  Conventional voting accomplishes many of these goals – private polling stations enable citizens to cast their votes anonymously, election day scrutineers offer independent oversight, and paper-based ballots provide a verifiable outcome that can be re-counted if necessary.

While technology may someday allow us to replicate these essential features online, many of them are currently absent from Internet voting, which is subject to any number of possible disruptions.  These include denial of service attacks that shut down the election process, counterfeit websites, phishing attacks, hacks into the election system, or the insertion of computer viruses that tamper with election results.

These concerns are based on real-world experience.  The Internet Corporation for Assigned Names and Numbers (ICANN), the organization that administers the domain name system, ran an online board of director election in 2000.  The experience was fraught with technical difficulties, leading a reviewer to conclude "the technical weakness in the registration system made it virtually impossible to assess the integrity of the voters' list, the security of the PINs, and secrecy of vote."

More recently, the Netherlands used Internet voting as part of its 2006 parliamentary elections.  The online option was an alternative for Dutch citizens working or living abroad.  Nearly 20,000 valid Internet votes were received at a cost of approximately 90 euros per Internet voter.  Two years later, the country implemented a ban on Internet voting.

The Canadian experience is limited primarily to municipal elections.  Several Ontario municipalities have offered Internet-based voting, enabling local residents to vote without leaving their homes.  Residents were required to pre-register for Internet voting and were provided with detailed instructions on the technical requirements to "vote anywhere."

Caution on Internet voting appears prudent, since experts have identified a long and costly list of necessary precautions, including random spot checks and post-vote verification programs to preserve anonymity.  Given the security risks, opening the door to provincial or federal Internet voting seems premature.  In the zeal to increase voter turnout, the reliance on Internet voting could inadvertently place the validity of the election process at risk.

The European Parliament,
–     having regard to Articles 207 and 218 TFEU
-    having regard to its Resolution of 9 February 2010 on a "Renewed Framework Agreement between the Parliament and the Commission for the next legislative term" (B7-0091/2010)
–     having regard to its Resolution of 11 March 2009 on "Public access to European Parliament, Council and Commission documents (recast)" to be considered as Parliaments position in First Reading  (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
–     having regard to its Resolution of 18 December 2008 on "the impact of counterfeiting on international trade" (2008/2133(INI))
-    having regard to the Opinion of the European Data Protection Supervisor of 22 February 2010 on "the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA)"
-    having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,
-    having regard to Directive 2002/58/EC of European Parliament and Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009
-    having regard to Directive 2000/31/EC of European Parliament and Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce)
-    having regard to Rule 110 of its Rules of Procedure,

A.    whereas in 2008 the European Union and other OECD countries opened negotiations on a new plurilateral agreement designed to strengthen the enforcement of Intellectual Property Rights (IPRs) and combat counterfeiting and piracy (Anti-Counterfeiting Trade Agreement - ACTA), and jointly agreed on a confidentiality clause,

B.    whereas in its report of 11 March 2009 Parliament called on the Commission to "immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available",

C.    whereas the Commission on 27 January 2010 assured its commitment to a reinforced association with Parliament in the terms of its Resolution of 9 February 2010 on a renewed Framework Agreement with the Commission, demanding "immediate and full information at every stage of negotiations on international agreements, in particular on trade matters and other negotiations involving the consent procedure, to give full effect to Article 218 TFEU",

D.    whereas Council representatives have attended ACTA negotiation rounds alongside with Commission representatives,

E.    whereas the Commission as guardian of the Treaties is obliged to uphold the acquis communitaire when negotiating international agreements affecting legislation in the EU,

F.    whereas, according to documents leaked, the ACTA negotiations touch, among others, on pending EU legislation regarding the enforcement of IPRs (COD/2005/0127, Criminal measures aimed at assuring the enforcement of intellectual property rights, (IPRED-II)) and the so-called "Telecom Package", and on existing EU legislation regarding E-Commerce and data protection,

G.    whereas the ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of the normal EU decision-making processes,

H.    whereas it is crucial to ensure that the development of IPR enforcement measures is accomplished in a manner that does not impede innovation or competition, undermine IPR limitations and personal data protection, restrict the free flow of information, or unduly burden legitimate trade,

I.     whereas any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law, as notably set forth in Directive 95/46/EC, in Directive 2002/58/EC and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,

J.    whereas the Treaty of Lisbon is in force since 1 December 2009,

K.    whereas as a result of the entry into force of the Lisbon Treaty, the Parliament will have to give its consent to the ACTA Treaty text, prior to its entry into force in the EU,

L.    whereas the Commission committed itself to provide immediate and full information to the European Parliament at every stage of negotiations on international agreements,

1.    Reminds that the Commission has since the 1 December 2009 the legal obligation to immediately and fully inform the European Parliament at all stages of international negotiations;

2.    Expresses its concern over the lack of a transparent process in the conduct of the ACTA negotiations which contradicts the letter and the spirit of the TFEU; is deeply concerned that no legal base has been established before the start of the ACTA negotiations and that no parliamentary approval has been asked for the mandate;

3.    Calls on the Commission and Council to grant public and parliamentary access to ACTA negotiation texts and summaries in accordance with the Treaty and the Regulation 1049/2001 on Public Access to Documents;

4.    Calls on the Commission and Council to pro-actively engage with ACTA partners to rule out any further negotiations of an a piori confidential nature and to timely and entirely inform Parliament about its initiatives in this regard; expects the Commission to make proposals already prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting, and to refer to Parliament the outcome of this round immediately after its conclusion;

5.    Stresses that, unless the Parliament is immediately and fully informed at all stages of the negotiations, Parliament reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives;

6.    Calls on the Commission to conduct an impact assessment of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce, prior to any EU agreement to a consolidated ACTA treaty text, and to timely consult with Parliament about the results of this assessment;

7.    Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union;

8.    Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;

9.    Urges the Commission to ensure that the enforcement of ACTA provisions - especially its provisions on copyright enforcement procedures in the digital environment - are fully in line with the acquis communitaire; demands that no personal search is undertaken at the EU borders and requests full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices, such as laptops, cell phones and MP3 players, by border and customs authorities;

10.    Considers that in order to respect fundamental rights such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed Agreement must refrain from imposing any so called "three strikes" procedures, in full respect of the decision of Parliament on article 1.1b in the (amending) Directive 2009/140/EC that calls to insert a new para 3 a to article 1 Directive 2002/21/EC on the matter of  "three strikes"

11.    Emphasizes that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;

12.    Instructs its President to forward this resolution to the Commission, the Council and the Governments and Parliaments of ACTA negotiation participants.

1.  Expresses its utmost concern over the lack of a transparent process in the conduct of the ACTA negotiations, which contradicts the letter and the spirit of the TFEU;

2.  Is of the opinion that legitimate arguments for non-disclosure do not exist with regard to international negotiations on the enforcement of intellectual property rights or similar issues, which are legislative in character and have an impact on fundamental rights; maintains that the negotiating position of the EU or other negotiating parties is not circumscribed if information about the negotiations is available to the European Parliament and the general public;

3.  Regrets the calculated choice of the parties not to negotiate through well-established international bodies, such as the WIPO and WTO, which have established frameworks of public information and consultations;

4.  Calls on the Commission to grant Parliament access to all primary texts relating to ACTA, in particular the ACTA negotiation mandate by the Council, the minutes of ACTA negotiation meetings, the draft chapters of ACTA, and the comments of ACTA participants on the draft chapters;

5.  Acknowledges that, in addition to the clear legal obligation to inform Parliament, the ACTA documents should also be available to the general public in the EU and in the other countries participating in the negotiations; understands the wide public criticism of the secrecy of the ACTA negotiations as a clear signal of the political unsustainability of the negotiation procedure chosen;

6.  Calls on the Commission to engage proactively with ACTA negotiation partners to cancel any previous formal or informal internal agreements on the confidential nature of the conduct of the negotiations and to inform Parliament about its initiatives in this regard in due course; expects the Commission to make proposals prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting;

7.  Reminds the Commission that if it does not provide Parliament with immediate and full information about the negotiations in accordance with Art. 218 TFEU before the next round of negotiations in April, Parliament will have no choice but to bring an action in accordance with Art. 263 TFEU for infringement of the Treaties to the Court of Justice of the European Union;

8.  Calls on the Commission to conduct an impact assessment of the implementation of ACTA with regard to fundamental rights and data protection, ongoing EU efforts to harmonise IPR enforcement measures, e-commerce and the possible impact of ACTA on fundamental rights and the rule of law in third – especially developing – countries, prior to any EU agreement on a consolidated ACTA treaty text, and to consult with Parliament in a timely manner about the results of this assessment;

9.  Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union; makes any possible assent to the ACTA agreement conditional to the full respect of this affirmation;

10.  Urges the Commission to ensure that the enforcement of ACTA provisions - especially those on copyright enforcement procedures in the digital environment - are fully in line with the letter and the spirit of the acquis communautaire and do not imply ‘self-regulatory’ measures being imposed by private companies outside the scope of democratic decision-making processes; considers that Internet service providers should not bear liability for the data they transmit or host through their services to an extent that would imply prior surveillance or filtering of such data;

11.  Emphasises that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;

12.  Points out that any measure aimed at strengthening powers for cross-border inspection and seizures of goods should not harm global access to legal, affordable and safe medicines;

13.  Instructs its President to forward this resolution to the Commission, the Council and the governments and parliaments of countries participating in ACTA negotiations.

The second resolution, supported by Conservative Members of the European Parliament, includes:

1.  Is aware that the ACTA negotiations, owing to their particular nature, require a high level of confidentiality in order not to undermine the legitimate interests of the stakeholders and the participating States; considers, however, that a more transparent process should be ensured in order to provide appropriate information, as repeatedly requested by the European Parliament;

2.  Welcomes the fact that the Commission has been briefing members of Parliament's Committee on International Trade (INTA), despite the confidential character of the multilateral negotiations, using the format of regular exchanges of views with the Director-General of DG Trade at open meetings of INTA coordinators;

3.  Calls on the Commission to grant Parliament access to documentation of ACTA negotiating texts in order to permit it to be up to date with the state of play of the negotiations; acknowledges that certain information might require confidentiality and should be provided in an appropriate form;

4.  Calls on the Commission also to actively engage with the other ACTA negotiating partners prior to the next negotiating round in New Zealand in April 2010, in order formally to place the issue of transparency on the agenda for that meeting, and to report to Parliament's specialised committee on the outcome of that round immediately after its conclusion;

5.  Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;

6.  Calls on the Commission to conduct an assessment of the impact of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures and on E-Commerce, with a view to an EU agreement on a consolidated ACTA text, and to consult with Parliament about the results of this assessment in due course;

7.  Welcomes the Commission's statements to the effect that any ACTA agreement will be limited to the enforcement of existing IPRs, without prejudice to the development of substantive IP law in the European Union;

8.  Urges the Commission to ensure that the enforcement of ACTA provisions – especially those on copyright enforcement procedures in the digital environment – are fully in line with the acquis communautaire and that no personal searches are undertaken at EU borders;

9.  Considers that, in order to comply with fundamental rights, such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed agreement should not impose the so-called 'three strikes' procedure;

10.  Emphasises that privacy and data protection are core values of the European Union, as recognised in Article 8 of the European Convention on Human Rights (ECHR) and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;

11.  Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the states party to the ACTA negotiations.

Over the next couple of days there will efforts to merge the two documents.  If adopted, the resulting document will be the strongest statement from an elected body on the need for dramatic change to the current ACTA process. 

On top of these resolutions, there is also a written declaration supported by four MEPs (Françoise Castex, Zuzana Roithová, Alexander Alvaro, Stavros Lambrinidis).  La Quadrature du Net has information on how to support the declaration.

Tom Clark then asks - "so are we joining WIPO?" and Clement says that Canada will be consistent with WIPO.  Note that Clement was also asked specifically about a digital economy strategy.  After noting that Canada is "fair to middling" in international ranks on the digital economy, he pointed to three key areas.  First, the need for a legislative agenda that includes passing the Electronic Commerce Protection Act (the anti-spam bill), introducing copyright reform, and updating Canadian privacy laws.  Second, investing in broadband and networks.  Third, helping spur business adoption of technology.