Appeared in the Hill Times on April 26, 2010 as Moore: More Like iPadlock and Less Like iPod Minister

Since his appointment as Canadian Heritage Minister in 2008, James Moore has carefully crafted an image as "Canada's iPod Minister." Young, bilingual, and tech-savvy, Moore has expressed regular support for the benefits of the Internet and is always ready with a quick "tweet" for his many followers.

Yet according to the scuttlebutt throughout the copyright community, Moore may be less iPod and more iPadlock. As the government readies its much-anticipated copyright package, Moore is said to be pressing for a virtual repeat of Bill C-61, the most anti-consumer copyright proposal in Canadian history.

Moore's about-face on copyright will come as a surprise to those who have heard his enthusiasm for new technology and the Internet.  In June 2009, Moore told Industry Minister Tony Clement's Digital Economy conference that "the old way of doing things is over.  These things are all now one. And it's great. And it's never been better. And we need to be enthusiastic and embrace this things."

Those comments were quickly followed by the national copyright consultation that generated thousands of responses, the majority of which called on the government to abandon the C-61 approach in favour of copyright rules that struck a better balance between the interests of creators and consumers.

In recent months, Moore seemed to support a more consumer friendly approach.  When NDP MP Charlie Angus introduced a private member's bill last month to extend the private copying levy to devices such as iPods, Moore was quick to lambaste the proposal as the iTax.  Heralded as an "iPod Freedom Fighter," Moore proclaimed the bill a serious threat to consumers.

Days later, Moore reserved judgment on the Canadian Radio-Television and Telecommunications broadcast policy decision that opened the door to a new fee-for-carriage system for local broadcast signals.  Once again, Moore adopted a pro-consumer position, indicating that his view on the decision would depend upon its consumer impact.

Moore's posturing won him few friends in the Canadian cultural community, with some suggesting that the Canadian Heritage Minister should spend less time focusing on his iPod and more on Canadian artists.

The copyright bill may still be several weeks away, but reintroducing Bill C-61 with only minor tweaks – a bit more flexibility for recording television shows or transferring content from one format to another – would leave in place the core provisions of the bill that generated widespread discontent.  These include U.S.-style legal protection for digital locks known as anti-circumvention legislation and a rejection of the flexible fair dealing approach that attracted considerable support during the copyright consultation as a balanced, technology-neutral solution.

What is most surprising with this path is that there are solutions that would toughen Canadian copyright law and provide the flexibility that business, consumers, and creators say they need.

For example, virtually everyone agrees that Canada should implement the World Intellectual Property Organization's Internet treaties. Yet there is considerable flexibility in how those treaties are implemented. Indeed, just last week India, home to a thriving movie and technology market, tabled legislation designed to bring it into conformity with those treaties. The Indian approach – much like the earlier Canadian Bill C-60 – sought to maintain the copyright balance that exists offline in the online world.

Similarly, a growing number of countries – led by the United States – have adopted flexible fair dealing or fair use provisions that benefit creators, business, and consumers.  Flexible fair dealing based on existing Canadian jurisprudence would ensure a fair-for-all, not a free-for-all.

Last week, the Standing Committee on Canadian Heritage heard about the need to target bad actors.  Canadian law has many tools to do so, with major record labels having pressured some peer-to-peer sites offline (such as QuebecTorrent) and gearing up to challenge others in Canadian courts (isoHunt).

Recent experience indicates that the copyright bill isn't final until tabled, but after spending the summer of 2008 fighting Bill C-61 and the summer of 2009 revisiting copyright reform as part of the national consultation, copyright is unquestionably on the public radar screen.  Canadians had been promised a forward-looking, technology neutral approach, but they may soon find that someone has hit the delete button on those promises.

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.