Appeared in the Hill Times on May 26, 2008 as Ten More Questions for Industry Minister Prentice

Last fall, as Industry Minister Jim Prentice was preparing to introduce new copyright legislation, I wrote an article in the Hill Times posing ten questions to Prentice about the forthcoming bill. Many of the questions – which focused on issues such as flexibility in implementing international copyright treaties, concern about the bill from the privacy community, fears about the impact of the law on security research, and doubts about the constitutionality of the proposal – remain unanswered.  Yet the six-month copyright delay has raised many more questions, including the following ten:

1. Days before you were scheduled to introduce the copyright bill, you claimed that Canadian business executives were anxious for copyright reform.  In February 2008, however, the Business Coalition for Balanced Copyright, which features a who’s who of Canadian business (Telus, Rogers, Cogeco, SaskTel, MTS Allstream, Google, Yahoo, Retail Council of Canada, and Canadian Association of Broadcasters) spoke out against U.S.-style copyright legislation and in favour of an expanded fair dealing provision. Why is Canada's Industry Minister prepared to ignore the concerns of Canadian business?

2. In recent months countries such as New Zealand and Israel have enacted wide ranging copyright reforms that have either rejected the U.S. approach or included significant flexibility to preserve the copyright balance.  Why are those countries able to strike a balance in the face of U.S. pressure, yet Canada appears ready to cave to U.S. insistence that it follow its much-criticized model?  

3. There has been considerable speculation that the forthcoming bill will seek to drum up public support by including a "time shifting” provision to allow Canadians to legally record television shows.  Since Canadians increasingly record shows using digital recorders, users that circumvent digital locks on such shows (which are occasionally inserted by broadcasters and cable companies) will still run afoul of the law.  What is the value of "modernizing” the Copyright Act if the provisions are outdated before they are even introduced?

4. Earlier this year, the Conservative government established a new policy that commits to a 21 day House of Commons review period of any treaty prior to the introduction of any ratifying legislation.  That policy was recently followed with respect to the trade agreement between Canada and the European Free Trade Association. Why are you prepared to ignore that policy with the forthcoming copyright bill, which you have stated that it is designed to bring Canada into compliance with the World Intellectual Property Organization's Internet treaties?

5. Last December, you claimed that copyright reform was needed to address trading partner criticisms that characterize Canada as weak on copyright protection.  In recent weeks, the World Economic Forum ranked Canadian intellectual property protection ahead of the U.S., while Managing Intellectual Property, a respected international publication, placed Canada fourth among the G8 nations.  With global surveys refuting claims about "weak” Canadian laws, why have you not promoted the strength of Canadian law to our trading partners?

6. Several weeks after the initial decision to delay introducing copyright reform, the Federal Court of Appeal ruled that the private copying levy could not be applied to Apple iPods and other digital audio devices. Why has the government avoided addressing a private copying system that is clearly broken and that has cost Canadian consumers nearly a quarter of a billion dollars?

7. Rogers Wireless just announced that the Apple iPhone will make its long awaited debut in the Canadian market later this year.  Reports indicate that consumers worldwide have unlocked millions of iPhones to allow for greater functionality and more competitive wireless pricing.  Will the government to commit to ensuring that the new copyright bill will not render unlocking an iPhone an act of infringement nor prohibit the distribution of software programs that could be used to unlock these devices?

8. Liberal Industry critic Scott Brison has criticized the lack of public consultation on the forthcoming copyright bill, claiming that your approach has been "anything but transparent.” Brison's criticisms are consistent with comments from many copyright stakeholders who have still not had an opportunity to meet with you. Why has the government avoided hearing from all concerned stakeholders? Why is it prepared to move forward with legislation when it has been seven years since the last comprehensive copyright public consultation?

9. NDP digital copyright critic Charlie Angus recently raised concerns during Question Period regarding the potential for individual Canadians to face millions of dollars in liability for file sharing a collection of songs that sell for 99 cents each.  Given support from business groups for more "rational and effective enforcement” that limits damages in cases of minimal harm, why are you likely to ignore these concerns and leave the damages provisions untouched?

10. Earlier this month, librarians from the Library of Parliament told a Parliamentary Committee that copyright law could hinder Members of Parliament's ability to access and use library information.  The committee agreed to write a letter to you and Canadian Heritage Minister Josee Verner asking that you consider a special fair dealing exemption for Parliamentarians.  How do you plan to address this concern?  Will Parliamentarians enjoy greater access than ordinary Canadians, or will your legislation ensure that everyone is locked out?  

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.