With Bill C-59 scheduled for second reading and debate today, my weekly Law Bytes column (Toronto Star version, homepage version) highlights some of the behind the scenes developments that led to Canada's movie piracy bill. Based on documents obtained under the Access to Information Act, the column reveals that Canadian Heritage Minister Bev Oda held a private meeting in Ottawa with Canadian Motion Pictures Distributors Association President Douglas Frith one year before the bill was introduced, at which Frith provided the government with draft legislation – legislation that the lobby group itself had crafted – that likely served as the basis for what is now Bill C-59. Moreover, a briefing note prepared by department officials for Oda in advance of the CMPDA meeting help explain the barrage of lobby pressure on the camcording issue as the Minister was advised that there was little evidence that the industry’s proposal would prove more effective that current Canadian law.
The CMPDA meeting focused on several issues, including counterfeiting and signal theft, yet it was a movie piracy amendment to the Criminal Code that was clearly top of mind.
An advance CMPDA briefing document claimed that legislative reforms were needed to address the growth of unauthorized camcording in Canadian movie theatres. Much like Bill C-59, which contains a maximum jail term of five years for the recording of a movie in a theatre for the purposes of commercial distribution without the consent of the theatre owner, the CMPDA draft bill similarly envisioned a maximum of five years imprisonment for "any person who knowingly operates the audiovisual recording function of any device in a public place while a cinematographic work is being exhibited."
In fact, the CMPDA bill arguably went even further than Bill C-59, as the industry also sought maximum penalties of $1 million per recording and an unspecified minimum penalty. Furthermore, it criminalized movie recording in any public place (C-59 only covers movie theatres) and did not require commercial distribution to invoke the toughest penalties (C-59 includes a lesser maximum sentence of two years in jail for movie recording without commercial distribution).
Department officials were not persuaded by the proposal, however, warning in the Ministerial briefing note that the penalty provisions in the Copyright Act are already criminal offences and that "it is unclear how these measures would prove more efficient." That conclusion is consistent with comments from Justice Minister Rob Nicholson, who in February rejected the calls for movie piracy legislation by noting that "the country is not completely bereft of laws in this area."
When Canadian Heritage Minister Bev Oda and Industry Minister Maxime Bernier stepped up to the podium on Parliament Hill ten days ago to introduce new movie piracy legislation, the scene had an unmistakable Hollywood feel. Surrounded by movie posters and attendees munching on popcorn, the Ministers were given a standing ovation from the assembled industry representatives for their performance.
While the press conference had a few uncomfortable moments – Oda was forced to admit that the government had not conducted any independent research on the scope of the movie piracy problem and she implausibly told reporters that public pressure from U.S. politicians such as California Governor Arnold Schwarzenegger and U.S. Ambassador to Canada David Wilkins had nothing to do with the new bill – the intended storyline was of Ministers pleased to support the film industry and of an industry grateful for government action.
In fact, Ottawa is sending Canadians two messages. The first is what drew the industry standing ovation – unauthorized camcording will not be tolerated in Canada even if it means diverting law enforcement resources from health and safety issues to movie theatres. The second is that private meetings, foreign pressures, and lobbyist drafted bills is how law gets made in Canada.