Last week, the Canadian Recording Industry Association appeared before the Standing Committee on Canadian Heritage with discussion that focused largely on copyright reform (media coverage of the appearance here). While copyright was the key issue, what was striking was CRIA's reluctance to actually specify what reforms it supports. That may sound unusual, but a review of recent public statements suggests that it is actually quite typical. In recent years, CRIA has become very reluctant to provide specific views on reforms, seemingly relying instead on the sort of backdoor, lobbyist-inspired meetings that are the talk of Ottawa due to the Rahim Jaffer situation.
The transcript has not been posted yet, however, a review of the unofficial transcript shows that CRIA President Graham Henderson provided no legal specifics in his opening statement. During questioning, he was repeatedly asked what his organization wants. First Liberal MP Pablo Rodriguez asked, eliciting the following response:
I believe that it starts with a very simple, straight forward baseline. We have to draw a little box around what's legal and what's illegal and send clear messages to the people of Canada about what's right and what's wrong….I would argue that to simply, as a very baseline, implement the intellectual properties treaties as contemplated by, for example, C-61, or before that Bill C-60 is the first step on that road.
Just about everyone agrees that WIPO implementation should happen and Henderson knows well that the C-61 and C-60 implementations are not the same thing. Rodriguez then asks what comes after WIPO implementation. Henderson shifts the response to one of the other panelists.
Bloc MP Carole Lavallée then asks for concrete solutions. Henderson responds:
What are the concrete solutions? It's twofold. No one ever in our world said that by passing a law we were going to change consumer behaviour overnight and turn people away from taking things. For people who think of music in Canada who think “take”, who don't necessarily think “buy”, we don't believe there is going to be an overnight conversion. This could take a long time. We think it's a market that's worth fighting for, but we have to establish those baselines. As for some of the techniques that are available, as you know, the French are experimenting with a graduated response regime. That's being considered in a lot of other jurisdictions. Practically everything you read about those regimes in the media is incorrect. There are filled with safeguards. There is such a thing as notice and notice. These are technicalities. Then there is, of course, the question of levies.
The answer doesn't satisfy Lavallée, who asks which solutions Henderson prefers. His response:
We have to be provided with a framework, and that is what the panellists were saying, a rules-based framework that will help us to build a legitimate digital marketplace.
Lavallée is not satisfied, indicating that Henderson has still not answered the question. Henderson says that perhaps he did not understand the question, so Lavalle repeats it. His final attempt at an answer:
One solution–the best solution, and perhaps I'm not expressing myself well enough, is to implement a set of laws or rules which will provide an environment that will encourage creation and investment. That is what the intellectual property organization treaties were designed to do, and when you see them implemented then you very clearly see a migration from illegal back to legal, and one of the principal reasons that you see that is not only is there someone saying you can't do this, but all of a sudden there is an interest from investors in investing in that marketplace and developing legal alternatives which are attractive to the consumer. It is like a carrot and a stick. You have to have great carrots, lots of alternatives.
As the MPs recognized, none of this was a concrete answer despite multiple invitations to provide the committee with specific guidance (he did, however, claim that CRIA has never sued a fan but "not that we ever got a single iota of credit for that" – news to the 29 defendants in the Sony BMG v. Doe case).
This is hardly the first time CRIA has avoided taking a public stand on specific copyright reforms. During last summer's copyright consultation, it was one of the only major copyright organizations that did not even bother with an individual submission. Henderson participated in a roundtable in Gatineau, but again offered mere generalities:
I think that there are four principles that should guide you as you pull together your new Bill, and they are these. Without question, the rights of those who hold copyright must be fairly balanced with the needs of users to access those copyrighted works. Two, the Copyright Act must provide clear, predictable and fair rules to allow Canadians to derive benefits from their creations. Three, the Copyright Act should foster innovation in an effort to attract investment and high-paying jobs to Canada. And finally, we have to ensure that our framework for the Internet is in line with international standards.
So CRIA wants clear, predictable rules – but what rules? Why does CRIA say virtually nothing specific about what it actually seeks? Based on lobbying records, perhaps it is because it saves its real comments for what takes place behind closed doors. There are 19 records of meetings for CRIA representatives with a wide range of government officials including Canadian Heritage Minister James Moore from the period of August 2008 to February 2010 (or 19 entries over a 19 month period). Even the content of those meetings may be kept secret. A recent access to information request on a presentation by Barry Sookman on ISP exceptions in Bill C-61 to government officials in 2009 excluded virtually all substantive materials on the grounds that it "contains commercially valuable information."
In other words, little is said publicly, more is said privately, and even the private content is kept from public view. As Moore quietly promotes a C-61 style approach, it is discouraging that the thousands of public comments on copyright reform may be ignored in favour of the backroom dealing that has generated so much discussion over the past few weeks in Ottawa.