Appeared in the Hill Times on May 12, 2008 as Conservatives Could Face Long, Hot Copyright Summer

If the Ottawa rumour mill is correct, Industry Minister Jim Prentice will introduce copyright reform legislation before the House of Commons breaks for the summer.  The decision to forge ahead with the controversial reform package is a curious one.  While the pressure from the United States to act continues to escalate – representatives from the U.S. Embassy paid a visit to the Parliamentary intellectual property caucus last week and caucus members plan to travel to Washington later this month – there are alternatives that would address some of the top intellectual property concerns without subjecting Conservative MPs to a steady stream of criticism throughout the summer from concerned consumers, educators, and businesses.

The general sense is that Prentice will introduce a copyright bill that claims to "modernize" the law.  Assuming that the bill meets U.S. demands to largely mirror its Digital Millennium Copyright Act but avoids updating key consumer concerns such as fair dealing, time shifting, and the making of backup copies, it is almost certain to disappoint consumer and education groups.  

Moreover, by running afoul of the Business Coalition for Balanced Copyright (comprised of leading companies and associations including the Canadian Association of Broadcasters, the Retail Council of Canada, Telus, Rogers, Google, and Yahoo) the Industry Minister risks alienating a large swath of the Canadian business community.

While that backlash alone might be enough to give a minority government pause, there is an alternate three-part strategy that could allow the government to fulfill its commitments to address intellectual property, consult on treaty ratification, and avoid a process that Liberal Industry critic Scott Brison recently labeled as "anything but transparent."

First, the government could move forward immediately with anti-counterfeiting legislation.  The counterfeiting issue has been a key focus for both the U.S. and copyright lobby groups and it was the subject of two unanimous House of Commons committee reports in 2007.  Four government ministers – Prentice, Public Safety Minister Stockwell Day, International Trade Minister David Emerson, and Justice Minister Rob Nicholson – issued a joint response last October to the reports expressing general support for the recommended reforms.

According to documents obtained under the Access to Information Act, there is strong internal government support for new anti-counterfeiting measures.  While officials questioned the need for certain reforms such as the creation of a new intellectual property crime task force or increasing penalties under the Copyright Act, representatives from key government departments including Industry, Justice, and Public Safety accepted the majority of the recommendations.  

These included defining trademark counterfeiting as a criminal offence, creating a criminal offence for the manufacture or distribution of fake labels of authenticity, and removing the Copyright Act from the list of excluded acts contained under Proceeds of Crime legislation. Moving forward with an anti-counterfeiting package would win plaudits from the U.S. and enjoy all-party support in the House of Commons.

Second, the government could immediately table the World Intellectual Property Organization’s Internet treaties in the House of Commons, consistent with its new policy on the ratification of treaties.  Introduced in January, the policy requires a 21 sitting day period of review before any legislation designed to facilitate ratification of an international treaty is introduced.  The policy has been respected in other instances.  For example, Emerson tabled the trade agreement between Canada and the European Free Trade Association in the House of Commons in February and only introduced implementing legislation last week after the review period had passed.

The same policy should be applied to the WIPO Internet treaties, which serve as the basis for the forthcoming legislation.  By tabling the treaties, the government would avoid accusations of only following its own accountability policies when convenient to do so.

Third, the government could use the summer months to conduct a much-needed consultation on copyright reform. The last national consultation on digital copyright reform took place in 2001 and with so many groups clamouring for an opportunity to have their voice heard, an open consultation process would allow the government to proceed with reforms that enjoy far broader support than is currently the case.  Indeed, with tens of thousands of Canadians now focused on copyright, a serious misstep could put Conservative MPs across the country on the copyright hot seat this summer.