Appeared in the Toronto Star on June 11, 2007 as Behind-Scenes Action Set Stage for Camcording Bill

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.

As with any Hollywood production, however, not everything took place while the cameras were rolling. According to documents obtained under the Access to Information Act, Oda held a private meeting in Ottawa with Canadian Motion Pictures Distributors Association President Douglas Frith one year earlier, 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."  

In light of the tepid response, the industry went on the offensive, threatening to delay the release of movies in the Canadian theatres, canceling Canadian pre-screenings, enlisting the support of U.S. officials, and floating inconsistent claims of Canadian responsibility for global camcording that ranged from 20 to 70 percent (the Oda briefing note stated that Montreal alone was responsible for 40 percent of unauthorized film reproductions in the world market, twice what CMPDA now claims for all of Canada).

The industry's lobby efforts were clearly successful.  Ignoring the inconsistent claims, the absence of evidence that Canadian films are being affected, the contrary internal advice, and the bracing reality that Hollywood has acknowledged that the U.S. is by far the largest source of illegal camcording worldwide notwithstanding its movie piracy legislation, Bill C-59 is expected to sail quickly through Parliament.

In doing so, 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.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.  He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.