Appeared in the Hill Times on December 10, 2007 as Ten Questions for Industry Minister Prentice

In anticipation of the forthcoming copyright bill, the CBC Radio program Search Engine recently conducted an innovative experiment by asking its listeners to post questions about the bill for Industry Minister Jim Prentice.  What followed was remarkable – the program received hundreds of questions from Canadians from coast to coast.  Although Prentice refused to appear on the program, the public outcry demonstrates that there remain many doubts about government policy in this highly contentious issue.

Indeed, with a bill expected this week, Prentice will have to respond to public concern, which, in the tradition of the David Letterman Top 10 list, would include the following ten questions:

1.   After you unveiled the government's approach to the release of new spectrum, you indicated that you granted a full hour to each company involved in the issue to state their case.  It has also been reported that you have met with U.S. Ambassador to Canada David Wilkins on the copyright issue.  Which other stakeholders have you met with on copyright reform?  Have you personally met with consumer groups, privacy commissioners, education groups, researchers, and creator groups such as the Canadian Music Creators Coalition and Appropriation Art, to hear their concerns?

2.   The public was last consulted on digital copyright reform more than six years ago in 2001.  Given the dramatic change since that time, why has the government not consulted the public on this issue before introducing major copyright reforms? Given the lack of consultation, will the government commit to full committee hearings that grant everyone who wants to appear the right to do so?

3.   While the government is clearly committed to implementing the World Intellectual Property Organization's Internet treaties, those treaties feature considerable flexibility.  Leaving aside the debate over whether the treaties are good policy for Canada, there is no debating that Canada need not adopt a U.S.-style approach in order to be compliant with the treaties.  Given that flexibility, why would you unnecessarily adopt a more restrictive approach?

4.    As you took to the podium for the spectrum auction announcement, you stood behind a sign that proclaimed "putting consumers first."  How do you reconcile that claim with the strong opposition to anti-circumvention legislation from all Canadian consumer groups who fear that the law will be used to create unfair limitations on what consumers can do with their own personal property?

5.    Earlier this year, your government released its national science and technology strategy. Notwithstanding the emphasis on research and education, the copyright reforms would represent a significant setback for the Canadian education community who would be locked out of fundamental education rights such as research and private study.  Moreover, the Canadian digital security community has warned against anti-circumvention legislation, which it fears could harm an emerging industry in Canada. How do you reconcile the emphasis on science and technology with copyright reforms that would create barriers to such initiatives?

6.    The Privacy Commissioner of Canada, recognizing the potential impact of copyright reform on the privacy rights of millions of Canadians, has called on the government to conduct a privacy impact assessment on copyright reform legislation.  Have you conducted such an assessment?  If so, will it be released to the public?

7.   The Conservative Party of Canada pledged in its 2005 policy declaration to "eliminate the levy on blank recording materials."  Why has that pledge been abandoned?  Similarly, the 2005 policy declaration stated that "the Conservative Party believes that reasonable access to copyright works is a critical necessity for learning and teaching for Canadian students and teachers, and that access to copyrighted materials enriches life long learning and is an essential component of an innovative economy."  Why has the party abandoned this position with copyright reform that will make it more difficult for teachers and students to access copyright materials?

8.    The Conservative Party of Canada has regularly emphasized the need to respect provincial rights.  Academic experts have already raised concerns about the potential constitutional validity of anti-circumvention legislation that would represent a significant incursion into provincial jurisdiction.  Indeed, the "para-copyright" provisions found in anti-circumvention legislation are better characterized as laws related to property (a provincial matter) rather than copyright (a federal matter).  How do you reconcile this inconsistency?

9.   Your government claims that it prioritizes the needs of small business in Canada, going so far as to appoint Diane Ablonczy as the Secretary of State for Small Business.  Yet if the U.S. legislation is any indication, the Canadian version will have a devastating effect on small business, which will face barriers to innovation and the prospect of costly litigation.  For example, Skylink Technologies, an Ontario company, was forced to spend millions of dollars in legal fees to defend itself in U.S. courts over claims that its universal garage door remote opener violated U.S. copyright law.  How will the Canadian version guard against this outcome?

10.   Copyright lobby groups claim that Canada has weak copyright protection, yet as was recently noted in the Hill Times, there are many areas where Canada's law is stronger than that found in the U.S.  For example, Canadian copyright law does not include parody, time shifting, and device shifting within fair dealing.  As a result, many forms of free speech may violate the law in Canada, while common activities such as recording a television show is still not permitted.  If you are interested in "modernizing" copyright law, why have you avoided addressing every day issues that matter to individual Canadians?
 
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.