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New Wikileaks Docs Show Ex-Minister Bernier Offered To Leak Copyright Bill to U.S.

That bill garnered some praise for striking a balance on difficult issues such as fair dealing, damages, and the liability of Internet providers. However, its approach to digital locks – which are used to control access to DVDs, CDs, and electronic books – was roundly criticized by consumer, education, and technology groups since it effectively ensured that inclusion of a digital lock trumps consumer and fair dealing rights. The bill’s digital lock rules largely mirrored those found in the United States.

The Canadian approach is difficult to understand if viewed solely from a policy or legal perspective. As a policy matter, concerns over digital locks was the top issue raised during the 2009 copyright consultation as well as in the hundreds of submissions to the Bill C-32 legislative committee. From a legal perspective, countries such as Switzerland and New Zealand have adopted a far more balanced approach, demonstrating that protection for digital locks need not eviscerate consumer rights.

The rationale appears to lie not in law or policy, but in politics. While U.S. pressure on Canadian copyright is nothing new, secret U.S. government cables demonstrate not only a massive behind-the-scenes lobbying effort to promote U.S.-style laws in Canada, but also a shocking willingness by senior Canadian officials to cave to the pressure.

Several Wikileaks cables released earlier this year chronicle the sustained U.S. lobbying effort on copyright. In a June 2005 cable, the U.S. talks about the “need to engage the legislative branch as well as relevant departments”, proposes creating a bi-lateral working group, and offers to conduct training sessions for Canadian officials. A June 2006 cable discusses meetings with Bernier and then-Canadian Heritage Minister Bev Oda. A March 2007 cable reports on repeated meetings and attempts to elevate the issue as a top priority.

The cables also discuss a joint strategy with Canadian copyright lobby groups to allow for a “good cop, bad cop” approach, with the lobby groups using U.S. pressure “as a signal to the Government of Canada that they are willing to be ‘more reasonable than the Americans’.”

In the face of sustained pressure, Canadian officials regularly assure the U.S. that reforms are on the way. The cables include confirmation that Prime Minister Harper personally promised then-U.S. President George Bush at the 2008 Security and Prosperity Partnership summit in Montebello, Quebec that Canada would pass copyright legislation.

Canadian action extends beyond repeated promises to act, however. An 2006 confidential cable recounts a meeting between Bernier and then-U.S. ambassador David Wilkins. The cable states that Bernier “promised to keep the Ambassador informed on the copyright bill’s progress, and indicated that US government officials might see the legislation after it is approved by Cabinet, but before it is introduced in Parliament.”

While Bernier never had the chance to leak the bill – he was shuffled to the Foreign Affairs portfolio before it was tabled – other officials did provide the U.S. with confidential information. A 2007 cable reveals that Ailish Johnson, an official at the Privy Council Office, told U.S. officials “the mandate letters from the Prime Minister to the incoming Ministers of Industry [Prentice] and Canadian Heritage [Verner] charged both Ministers with introducing a copyright reform bill before the end of the year.” The content of Ministerial mandate letters is not public.

Given its insider access, the U.S. appears to be aware of legislative initiatives before almost anyone else. Another previously unreleased confidential 2009 cable discusses Canadian plans for an intellectual property enforcement bill separate from the copyright reform bill. The cable states “the government has completed legislation to enhance Canada’s IPR enforcement measures. However, the government has no plans to introduce the bill in Parliament any time soon because no funding was linked to the legislation in the last budget.”The government has never confirmed nor discussed the existence of such a bill.

The U.S. source for this information appears to be Andris Zarins, the RCMP’s former national coordinator for intellectual property crime. A confidential 2007 cable reveals that Zarins told U.S. embassy officials that the government was drafting legislation to grant customs officers new seizure powers for counterfeit products and that it planned to create a new national intellectual property crime coordination office. Zarins also revealed forthcoming changes to proceeds of crime rules in copyright cases, which were amended in 2009 as he predicted.

The 2009 cable also raises questions about the copyright consultation that year and Canadian encouragement of the U.S. pressure.  The cable reports that Zoe Addington, Clement’s former director of policy, said the consultations would be used “as an opportunity to educate consumers and ‘sell’ the Government view.”

Moreover, Addington encouraged the U.S. intensify its lobbying efforts, stating “if Canada is elevated to the Special 301 Priority Watch List (PWL), it would not hamper – and might even help – the Government of Canada’s ability to enact copyright legislation.”Days later, Canada was elevated on the Watch list.

The cables paint a discouraging picture of U.S. lobbying resulting in privileged insider access to government plans with Canadian officials eager to satisfy U.S. demands. Those efforts likely led to Bill C-32′s digital lock rules, which seemingly had far more to do with U.S. pressure than Canadian policy.

While the Canadian government will undoubtedly claim that its forthcoming bill reflects a made-in-Canada approach, even the U.S. is not so easily fooled. A 2007 cable recounts an Oda press conference in which she told the media that a new anti-camcording bill was an independent policy change that was not the result of lobbying pressure from the U.S.  The cable calls her response “disingenuous.”

42 Comments

  1. Wonderful….
    Now we get to see what Harper will do now that he has his majority government. While I’m very sure he won’t intentionally do anything overt to risk his position I have this sinking feeling… Get ready for it, Canadians.

    Sadly, the lack of reasonable alternatives is what helped bring him up into power, demonstrated by the Liberals getting mashed. Whyfor no ‘Common Sense’ party? Oh, right, it’s a superpower.

  2. Common Sense party? How about just a “Canadians Party”…
    Honestly, is it so much to ask that our elected officials actually represent *our* interests? While I’m left-leaning, I get that some prefer a conservative approach, and so be it, democracy is a delicate balancing act between competing ideologies. But is it *really* so much to ask that our politicians work on behalf of the people *first*?

    And the worst part is, despite clearly toadying to outside interests, polarizing politics will ensure that people will continue to vote for these guys, simply because they have no choice. The merger of the Reform and PC parties was a disaster for Canadian politics, eliminating choice for people. The talk of an NDP-Liberal merger is only going to make that worse. Soon, we’ll just be a mirror image of the US, apparently even to the point of passing US-made law…

  3. Where is a credible government-in-waiting?
    Copyright has proven to be something that engages a lot of Canadians. Hijinks like this may be enough to show Conservative-leaning voters that it’s time to bring in the next set of scumbags and liars, aka “governing party”. Unfortunately, the NDP has done nothing to show it has escaped from the lunatic asylum, and the Liberals have famously imploded and it will take a while for them to regroup. Yes, a lot of Canadians like Obama, but, really, shouldn’t we be making our own decisions?

  4. Welcome to my fantasy …
    I hope that this documentation will have positive impact on the world views of some ‘prominent dissenters’ who often post here. Holding such opinions as ‘the USA has undue influence on Canadian copyright policy’ has been called fantasy by such … Whoops, there it is!

    While it should be disconcerting how disingenuous the government and the ‘good cop-bad cop’ **AAs have been it is telling that they behave as bad or worse than those they rally against.

    This is what drives me to this issue, not so much that both sides play the game, but that the ‘creator’ side plays the virtuous victim all the while sharpening the knives.

  5. This sounds like charges of treason and influence peddling would be in order for the named individuals.

  6. Wait wouldn’t this be considered treason? At least there’s got to be some kind of law broken here.

  7. Arthur Klassen says:

    treason/treasnous — who cares
    The only purpose for a government’s existence is that it should protect its citizens (companies do not carry passports or birth certificates) from the predations of those more powerful, foreign or domestic, otherwise legitimate or illicit, whether individuals, organized corporations, labour unions or even from the government itself.

    I’m not sure what remedy to ask for nor from whom it should be sought: the crown is no longer a strong enough institution to demand the necessary answers of the Prime Minister or his government, but today I wish it were.

    shout out to my MP, James Moore: If you take your duty to your constituents seriously, disavow these actions and work to protect not undermine our interests in intellectual property.

  8. Judging by the text of the criminal code, and I’m not a lawyer in any regard, can’t see how this could get any charge of treason drawn up at all. In fact there’s very little to do with the legislative process & foreign influence that I can find. In fact none that I’ve read so far.

    Maybe sabotage could be applied. It does mention the impeding of “other thing” so that could be Canadian sovereignty and that would certain qualify as hurting the safety, security & defence of Canada. Maybe, probably not but I’m no lawyer.

  9. Are we still on the list?
    Now that it has been shown that the analysis of our piracy level is completely bogus,are we going to be removed form the list?

    I mean we should be at least moved down a few notches.

  10. Oda
    Bev Oda… where have I heard that name before? Oh ya, she was the MP who fraudulently altered documents, changing recommendations to deny a humanitarian charity funding. Quite the name she’s making for herself. I wonder how many more scandals before her constituents reconsider the kinds of people they entrust with power.

  11. serisously scared for the future of our country while it is under stephen harpers cold clamy grasp.

  12. It is beyond me as to how about 30% of Canadians get their majority government.
    I HAZ NO FAITH NOW!

  13. Well, I wish I could say I was surprised by this. But the last copyright bills have been made in Canada the same way that my iPod was designed in Canada.

  14. It’s not too late for the Conservatives to back-pedal on the digital locks issue that has everyone else in arms, but the real question is: will they? Stephen Harper is notoriously stubborn. On the other hand, they have caved to public pressure before, and WikiLeaks is nothing if not public. Maybe this will have a positive effect. Maybe the Conservatives will think twice before they pander to American lobby groups. I sincerely hope so.

  15. puzelled
    As long as people will continue to realize the Consevatives as the scumbags they are, but just out of hand with no reasons given, except with derogatory comments that say nothing, reject the NDP Eg. “NDP has done nothing to show it has escaped from the lunatic asylum” . We are going to be in for more and more of this kind of thing. Ultimately, I guess just as the Americans with their Tea Party lunacy, we will deserve what we get.

  16. I guess for The Province or Vancouver Sun to report on this online we’d have to throw in some sex scandal or maybe some celebrity news.

  17. Criminals!
    Treason? Peddling Influence? Communicating government secrets to a foreign state?

    Aren’t these all CRIMINAL violations?!? How can they get away with this? If nobody’s above the law shouldn’t they be tried and sentenced to prison time?

  18. Literally makes me sick
    I for one will never vote for a pro-US government in Canada. We need to be friends and neighbours but just as we are with the rest of the world. Getting into bed with the sinking empire is not in the best interests of Canada in the long run. The intellectual property situation in the US is at a breaking point, Canada should be positioning herself outside the wall the US is creating around itself. Innovation and creativity will die off inside this IP wall and take off everywhere else. The real opportunity for Canada? Open, fast , unlimited Internet with no more patents, reduced copyright time limits and protections. Innovation would flourish but we’re just not ready to take the risk.

  19. Treason by any other name.
    I believe this breaches the “Official Secrets Act” which could make this a case for a Treason charge. At the very least it is release of confidential government information to a foreign power. An independent investigation is warranted and those found in violation should be stripped of parliamentary privilege and criminally charged.

  20. While I agree an investigation should be launch I’m still not certain this qualifies as treason under Canadian law. It doesn’t seem as anything was classified in any matter which I think would make it hard to do anything under the official secrets act.

    Regardless there really should be consequences for these actions.

  21. This is the government that the majority elected back into office. It`s a wee bit too late to say you are opposed to any of this when you overwhelmingly give the Conservatives a majority government.

    They now have free reign for the next 4 years to push through everything. The Liberals are no longer a force – the NDP lost their biggest voice when Jack died. The Prime Minister is well known to be arrogant, and ignorant, and deceitful, and honestly believes he knows best for everyone living in Canada.

    Those who didnt think through their voting decision now have plenty of time to reflect on their choice.

  22. Treason
    I thought the same thing but in Canadian law all treason laws seem to be related to warfair

  23. well, there are more stupid people on this comment line than I thought..wikkileeeks is a farce..Canada for the first time has a decent government who won’t hand out grants to anyone willy nilly..grants that were handed out in the past by the Liberals and that would be handed out by the NDP were wasteful and paid for by us taxpayers..because our PM is an economist and not a lawyer, union head, you name it, Canada has weathered the storm of recession and is doing nicely without the help of borrowing trillions from China like the USA..unfortunately we will always have misguided souls who try to subvert and ruin our country..wikkeekeeks should stay in their own backyard..

  24. @Mary
    “well, there are more stupid people on this comment line than I thought”

    Oh, I don’t know Mary. Yours is the first comment which shows any evidence of that.

    First, Wikileaks has never asked for grants from our government so your comment in this regard is non-sequitur.

    Second, “Canada has weather the storm of recession” DESPITE the best effort if Stephen Harper. Keep in mind that before Mr. Harper was P.M. he was loudly calling for us to join the war in Afghanistan and deregulate our banks as the Americans and much of the rest of the world had done. As well, when Paul Martin was paying down the debt, Harper was calling for more tax cuts. Had Harper been in power during that crucial time, you can be sure we would be suffering as badly as the rest of the world.

    Wikileaks is bringing a dose of transparency to many aspects of government which should have been displaying more transparency to begin with. We, and the rest of the world, need Wikileaks.

  25. @Mary
    “because our PM is an economist and not a lawyer, union head, you name it, Canada has weathered the storm of recession”

    This gets me. Did economist Harper have anything to say about the American economy bombing BEFORE it became obvious? Very few economists saw and were willing to say that the US was headed for a fall and as far as I can recall Harper said nothing.

    Either he saw it coming and did not want to risk his position saying anything or he else he stuck his head in the sand like most of the other economists advising the US? Both cases do not inspire.

    Just because he is an ‘economist’ does not mean that he can’t be just as wrong as all the others who ignored the obvious warning signs in the housing market. (Slow income increase, MASSIVE loan and stock market increases).

  26. Dont be that way
    Don’t be superior with your obvious anti blogging. We know the cpc party pays people to comment on blogs. And don’t be critical becaus of a few spelling mistakes from the iPhone blogger here.

  27. Non-canadian says:

    I thought everyone already knew…
    that Canada is just one more state under the US, like New York or California? At least, the rest of the world understands this way.

  28. It’s not a surprise …
    Just nice to have it in writing!

  29. Code of Ethics for Politicians?
    This is exactly why we need an enforceable Code of Ethics for every politician in Canada. Lawyers have them, doctors have them, and even Professional Engineers have them! Why not our politicians who have pretty much one of the most important jobs in Canada?

    With code of ethics, situations like these could hopefully be dealt with. So, if these things technically don’t fall under treason, they hopefully would fall under code of Ethics.

    Either way, I think it’s common knowledge now that Canadian government no longer work for it’s people, but only big businesses and foreign interest. We need to make a stand against our government and force them to work for us again.

    The problem is… how?

  30. Canadian backbone?
    Although I’m a U.S. citizen and try to keep my legislature in check when it comes to the sovereignty of other nations, I and my voting friends find ourselves frequently taking a lower priority than corporations who have “donated to” (code phrase for “purchased influence over”) my representatives. That said, it’s up to the people of these sovereign nations (like Canada, eh?) to stick up for themselves. I apologize for my governments complicity in this, but ask that you continue to stick up for yourselves.

  31. For the folks suggesting that this amounts to treason, have a look at the Criminal Code of Canada before spouting off. Specifically Section 46, para 2, which denotes what constitutes treason.

    Treason

    (2) Every one commits treason who, in Canada,

    (a) uses force or violence for the purpose of overthrowing the government of Canada or a province;

    (b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

    (c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);

    (d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or

    (e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act.

    With respect to the “Official Secrets Act”. The “Security of Information Act (which replaced the Official Secrets Act nearly 10 years ago), well, you can look it up yourself. Long story short, if the government made the proposed legislation Can/US Eyes Only, then they did nothing wrong in releasing it to the US. You may not agree with it, but it isn’t illegal. Note that at this time I am not judging what the government did; there is not enough information here to indicate why the information was sent to the US, for instance, if it was sent in order to get comments with respect to their complaints, then it could be argued that sending the proposed legislation would make sense. If it was done simply because they asked for it, then it doesn’t make sense.

    Certainly the US government has a stake in trying to get what they can for their national companies, just like the government of Canada has a stake for Canadian companies.

  32. “Canada for the first time has a decent government who won’t hand out grants to anyone willy nilly[...]unfortunately we will always have misguided souls who try to subvert and ruin our country..wikkeekeeks should stay in their own backyard..

    And just who are those willi nilly people? Singles mothers? Small Businesses? Artists? Who need those, right? No, Saint Harper will put those grants in big companies pockets. You really think he will be good for Canadians? I value my civil liberties over the greed of big business.

    The only stupid comment in here is yours.

  33. If these behaviours aren’t illegal, they should be.
    If it is true that US government officials learned about proposed copyright legislation before Canadian citizens, something is very wrong. This says quite clearly to me that the government of Canada is not working for Canadians.

    I agree with the comment suggesting that there needs to be a code of conduct of politicians. (They swear allegiance to the queen, but not to Canadians…) In every other profession even being ASSOCIATED with a scandal (ex, your name in the same news article) is enough grounds to be dismissed and barred from the profession (read the CGA code of ethics…). Politicians should be held at LEAST to this.

    I consider back-door politics like these criminal. Treason may not be the right word, as others have suggested, but there must be a law. If not, why not?

  34. @Ralph
    While I agree that politicians should have a code of conduct, given the political climate in Canada today, what purpose would it serve?

    I ask this in the sense that the codes are generally done by self-policing bodies. As such, it would therefore be normal for the politicians themselves to render a verdict, likely by way of a committee. We’ve seen in the past 6 years that the chance to make the other guy look bad trumps actual consideration. Let’s look at the situation in both a majority and minority government.

    Majority. A member of the governing party is accused. Since the committee members would probably be mostly government MPs, unless the person does something really bad they will likely be acquitted otherwise they make their own MP look bad. If it was a member of the opposition, they would probably find them guilty to make the other party look bad… it has little to nothing to do with what the person did.

    In the case of a minority government, the same considerations are at play, save that the membership of the committee would likely be a majority opposition MPs.

    Representative democracy in Canada has become something of a farce; for the most part the parties exist “to rule in a democracy, not to practice it”.

    Marv. Your comment about civil liberties, well, let’s just say that I don’t follow. If you are referring to the PM’s desire to re-introduce some of the anti-terror laws, well, this isn’t just an issue with the CPC… those measures were introduced in 2001 by the then LPC majority government. No party has a monopoly on things like this.

  35. @ Mary
    “because our PM is an economist and not a lawyer, union head, you name it, Canada has weathered the storm of recession”

    lol some people like to ignore facts/the past. It’s because of *gasp* Lib policies (banking regs) that our bacon was saved – policies Harper himself voted against at the time. Learn to history. lol

    “I consider back-door politics like these criminal.”

    Amen to that. Things won’t change in our lifetimes, though, unfortunately.

  36. @Anon-K
    I want these unethical and unprofessional behaviours to be illegal in the regular sense of RCMP and arresting and possibly jail time. Government officials should be triable by a jury for ethical violations. (Obviously a judge would be open to undue political influence and, as you note, tribunals/commissions composed of other politicians and government agents would be absurd.)

    I repeated the suggestion of using professional codes of conduct as models because professional organizations have already thought about ethical behavior and public trust and appear to have codified the responsibilities more than we have managed to for any government position – something I find truly bewildering.

    I think every politician should be held to some pretty basic (“self-evident”) ethical standards. Not LYING or deliberately obscuring the facts should be at the top of that list (Bye bye Bev Oda). That the content of draft legislation be treated as a national secret until it is tabled should be on the list too. (Canadian laws should be written exclusively by Canadians. That’s the point of sovereignty. No checking for permission, no asking for comments, and no giving advance notice.) They should also declare that they don’t have any conflicts of interest that could in any way influence their actions while in the role. (Any minor but demonstrate-able conflict should be avoided. Professionals have to tread very lightly…) They should also act responsibly as a role model. (No DUIs, no domestic disputes, no sexual harassment, no anything that just plain doesn’t look worthy of the trust they are given…) Again, every professional organization I can think of reserves the right to give you the boot if you just smell funny and keep managing to get bad press. It doesn’t mean you did anything wrong, it just means you have tarnished the ethical ideal. Politicians should be just as careful to avoid the potential for things to be misconstrued as (they should be) to avoid deliberately illegal activities. Public confidence is a prerequisite.

    I think politician’s should publicly take an oath reciting these and other minimum ethical standards so that they are reminded of their duties and how tenuous their position is and also so that their obligations are prominent in the public’s mind. The process for holding all government officials responsible should be clearly defined and regularly exercised. At the moment it’s just public outcry, and that rarely seems to work. There’s nothing binding about an online petition. We need ways of involving people… referendums should be cheap and common. (No, I don’t know the details of how. I’m not a fan of online voting yet…)

    Simply put: anyone in a government position should be held to high standards. They should expect it an act accordingly (they lso have a right to privacy, but that doesn’t mean they should be able to get arrested for soliciting and expect to go back to work on Monday). I have no problem with high turnover based on human nature that leads them to spend money on limos or get drunk on vacation or simply due to enemies with an axe to grind digging up the past. As long as the ethical violation is real and discrediting, I think we should expect that person to be relieved. Repeated scandal IS reason enough. Our politicians should head off scandals. There should be no reason to doubt any goverment official. If there is, they should step aside in part – in a specific capacity – or in whole. Ethics is nowhere else as important as in government.

    Holding a political office is not a right, and I believe regularly cleaning house would be beneficial overall. I see no reason a political career should last more than 10 years.

    I also believe there should be repercussions for a government failing as the last one did, even if you think it was a baseless power-grab by various parties. I think Stephen Harper should have been required to resign or, depending on the situation, a party should have to sit on the bench for an election. I see nothing wrong with Prime Minister being a once-in-a-lifetime job by law. Power corrupts… Once can be enough.

    Our political system needs clearer checks and balances. Our government can’t just be an upholstered clubhouse for the corrupt.

  37. ..
    Those named should be brought up on charges where applicable. Likewise, any public pension should be cut off for these individuals. Our tax money going towards supporting these traitors.

  38. Un-Conservative says:

    We need better candiates.
    I for one, would like to vote for Michael Geist for Prime Minister.

  39. Re: Michael Geist for PM
    I second that nomination. The problem with Canadian politicians at the moment, at least for me, is that I do not believe that ANY of them have any measurable integrity or honesty. I would love to have a chance to vote for a politician whom I feel I can trust. This leaves out the entire Conservative party, and many of the Liberals. I supported Jack but he passed on sadly. Geist would be an excellent candidate for PM. I sometimes feel that he is one of the only individuals actively defending the rights of Canadians.
    The current CPC crop feel like “The best politicians money can buy” :P

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