While some attendees were disappointed that Industry Minister Jim Prentice was not more responsive to the copyright questions posed at this weekend's open house, I found the comments very insightful since they provide a roadmap for how Prentice is likely to justify tomorrow's introduction of a Canadian DMCA. I expect that the launch will include some well co-ordinated laudatory comments from groups like CRIA and the CMPDA, yet the Minister is likely to focus on four points to justify his "framework legislation":
1. Canada Needs This Legislation To Meet Its International Treaty Obligations. This is a reference to the World Intellectual Property Organization's Internet Treaties that Canada signed in 1997 but has not yet implemented or ratified. While this is a bit rich coming from a government that has ratified Kyoto but not done much of anything to meet its obligations, there are two points worth making in response. First, signing a treaty is not the same as ratifying (just ask the U.S. which is one of only two countries in the world to have signed the U.N. Convention on the Rights of the Child but not ratified it) – Canada is not offside on its international obligations on copyright because it has yet to act on the WIPO Treaties. Second, there is great flexibility on how a country chooses to implement those treaties. It is simply not enough to claim that Canada has no choice. We do. We can meet the treaty standards and still protect fair dealing, privacy, consumer, and education interests. It is Prentice's choice not to do so.
2. Trading Partner Criticism. The trading partner here is, of course, the United States. While Prentice hasn't had the time to meet with education and consumer groups on copyright, U.S. Ambassador to David Wilkins jumped right to the front of the line. As I've pointed out before, the U.S. criticizes just about everybody on copyright – Canada is in good company. Moreover, this is a government that promised to "Stand Up for Canada", not take dictation from U.S. officials on the content of Canadian law (note how the Israelis, facing significant U.S. pressure of their own, managed to do just that). Even if you accept that it is important to address U.S. criticisms, that still does not justify the Canadian DMCA. The U.S. could hardly object to a more flexible fair dealing approach with protection for time shifting, device shifting, and parody since that reflects its own copyright law.
3. This Is Just an Extension of the Liberal's C-60. This theme arises a couple of times as Prentice claims he is only doing what the Liberals tried to do and that concerns about the lack of consultation are addressed by the 2001 copyright consultation. With respect, this is utter nonsense. While Bill C-60 had its faults, it did attempt to strike a balance and preserve fair dealing rights in Canada. Prentice's Canadian DMCA by contrast will largely eliminate fair dealing in the digital world. Moreover, the 2001 consultation was a lifetime ago in terms of technology and the Internet. Given how much has changed (more people have written and called the Minister in the last week than responded to the 2001 consultation) – and how much we've learned about what not to do – citing a six year old consultation as the basis for the Canadian DMCA does not pass the laugh test.
4. Business Wants This Legislation. Prentice claims that virtually every CEO he talks with wants this legislation. If true, he needs to get out more. Has he talked to the Canadian telcos about their desire for more flexible fair dealing? Has he talked to the broadcasters who are concerned with the already increasing costs associated with copyright in Canada? Has he talked to music executives like Terry McBride at Nettwerk who oppose this legislation? Has he talked to companies like Google that point to the great flexibility in implementing the WIPO Treaties? Has he talked to companies like Skylink Technologies, the Ontario company that spent more than $3 million dollars fighting a U.S. DMCA lawsuit? Has he talked to the leading consumer electronics companies that are crying out for more flexible fair dealing under Canadian law? Has he talked to Canada's retailers who want the government to live up to their promise to eliminate the private copying levy?
The Canadian DMCA will have enormous impact on the lives of millions of Canadians. We deserve far better than a series of weak justifications for this law.