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Behind the Scenes of Canada's Movie Piracy Bill

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Monday June 11, 2007

With Bill C-59 scheduled for second reading and debate today, my weekly Law Bytes column (Toronto Star version, homepage version) highlights some of the behind the scenes developments that led to Canada's movie piracy bill.  Based on documents obtained under the Access to Information Act, the column reveals that Canadian Heritage Minister Bev Oda held a private meeting in Ottawa with Canadian Motion Pictures Distributors Association President Douglas Frith one year before the bill was introduced, at which Frith provided the government with draft legislation - legislation that the lobby group itself had crafted - that likely served as the basis for what is now Bill C-59. Moreover, a briefing note prepared by department officials for Oda in advance of the CMPDA meeting help explain the barrage of lobby pressure on the camcording issue as the Minister was advised that there was little evidence that the industry’s proposal would prove more effective that current Canadian law.

The CMPDA meeting focused on several issues, including counterfeiting and signal theft, yet it was a movie piracy amendment to the Criminal Code that was clearly top of mind. 

An advance CMPDA briefing document claimed that legislative reforms were needed to address the growth of unauthorized camcording in Canadian movie theatres.  Much like Bill C-59, which contains a maximum jail term of five years for the recording of a movie in a theatre for the purposes of commercial distribution without the consent of the theatre owner, the CMPDA draft bill similarly envisioned a maximum of five years imprisonment for "any person who knowingly operates the audiovisual recording function of any device in a public place while a cinematographic work is being exhibited."

In fact, the CMPDA bill arguably went even further than Bill C-59, as the industry also sought maximum penalties of $1 million per recording and an unspecified minimum penalty.  Furthermore, it criminalized movie recording in any public place (C-59 only covers movie theatres) and did not require commercial distribution to invoke the toughest penalties (C-59 includes a lesser maximum sentence of two years in jail for movie recording without commercial distribution).

Department officials were not persuaded by the proposal, however, warning in the Ministerial briefing note that the penalty provisions in the Copyright Act are already criminal offences and that "it is unclear how these measures would prove more efficient."  That conclusion is consistent with comments from Justice Minister Rob Nicholson, who in February rejected the calls for movie piracy legislation by noting that "the country is not completely bereft of laws in this area."

When Canadian Heritage Minister Bev Oda and Industry Minister Maxime Bernier stepped up to the podium on Parliament Hill ten days ago to introduce new movie piracy legislation, the scene had an unmistakable Hollywood feel.  Surrounded by movie posters and attendees munching on popcorn, the Ministers were given a standing ovation from the assembled industry representatives for their performance.

While the press conference had a few uncomfortable moments - Oda was forced to admit that the government had not conducted any independent research on the scope of the movie piracy problem and she implausibly told reporters that public pressure from U.S. politicians such as California Governor Arnold Schwarzenegger and U.S. Ambassador to Canada David Wilkins had nothing to do with the new bill - the intended storyline was of Ministers pleased to support the film industry and of an industry grateful for government action.

In fact, Ottawa is sending Canadians two messages.  The first is what drew the industry standing ovation - unauthorized camcording will not be tolerated in Canada even if it means diverting law enforcement resources from health and safety issues to movie theatres.  The second is that private meetings, foreign pressures, and lobbyist drafted bills is how law gets made in Canada.
Comments (8)add comment

Clarence Fisher said:

remoteaccess.typepad.com
As a teacher working with junior high students, teaching them to be innovative and creative information prosumers for the digital age, stories like this disappoint me incredibly. As students learn to navigate the digital landscape, it would be great for them to know the playing field is truly flat for all; but apparently, it's not so.
June 11, 2007

ImJohnGalt said:

...
I just read your column, Michael, and I wish you would have quoted pieces from and explicitly indicated what those "AIA documents" were.

Also:
"even if it means diverting law enforcement resources from health and safety issues"

I expect this kind of foolish hyperbole from commenters, Michael, but from you?

a) The movie exhibition industry pays taxes. As such, they are entitled to the benefits of those taxes such as, for example, police enforcing the laws.
b) I'm assuming I'll be reading your screed quite soon about how parking tickets should no longer be written since it keeps the police from catching the guy who is going to murder you. Or maybe you should be demanding that the police motorcycle Corps stop appearing in parades, because, after all, it probably kept them from catching Robert Pickton any earlier.

And then there's the heartfelt comment by Mr. Fisher, above. I just don't get it. Why does teaching your students that they shouldn't illegally copy movies from a licensee "disappoint (you) incredibly"? You want the playing field to be equal between the people that legally license artistic works for exhibition and the people who would illegally copy them?

Please.

Rail against DRM, I'll have your back. Rail against eroding "fair use" laws, or extended copyright laws and I'll be waving a placard with you. But this? Seems a strange cause to champion. "Let my people camcord movies in theatres with impunity!"
June 12, 2007

Michael Geist said:

...
ImJohnGalt,

I thought the column/posting made it clear. The source of the ATIP documents was a briefing note to the Minister in advance of the CMPDA meeting and the materials submitted by the CMPDA. Anyone can obtain those documents by replicating the request.

I don't think the column supports camcording, though it does cast doubt on the severity of the issue. The point of the column is how the law came to be and the dangerous precedent that that process establishes.

As for the diversion of law enforcement resources, both the RCMP and government officials noted precisely the same thing at parliamentary committee hearings earlier this year as did the briefing note to the Minister.

MG
June 12, 2007

ImJohnGalt said:

...
Ah yes, the RCMP will be kept from the important work of abusing their pension funds. Just because the RCMP and government officials make the same argument doesn't make it a *good* argument. You are skeptical of claims from both the studios and the exhibitors, but seem to have no such skepticism when it comes to statements from the government.

Again, why shouldn't the taxpaying exhibitors be entitled to the same protections afforded to any other taxpaying commercial establishment when it comes to the theft of the products they sell?

Why don't you ask the exhibitors how many incidences of camcording they've caught so far this year? I'm sure they probably track these numbers.

I don't have a dog in this hunt...I'm a customs broker, but I am also a technologist and musician who cares deeply about DRM and fair use laws. I just don't understand why stopping camcording in theatres is such a contentious issue. If it is not severe (as you seem to think), then there should be no need to worry about the diversion of enforcement resources.

To me it just seems like the least of any of the issues you cover, and distracts from the far more important issues to address (that is, it's taking your writing resources away from the important stuff, if I may use your own argument here).

As for the ATIP documents, why not post a link to the documents themselves to save your readers from having to go through the same request process?

I'm still not sure of the precedent that's being set here. If it's that lobbyists help craft legislation, that horse left the barn long ago.

You yourself wrote about the CRIA getting extraordinary access here:

[ link ]

It happens in the military, too. Conflicts of interest abound.

[ link ]

I know that you focus on IP issues, but to pretend that this is some sort of unique conspiracy which sets a bad precedent (as opposed to just being another illustration of a common practice) is crazy.

Personally, I don't care who lobbies for legislation. Environmental groups lobby for better environmental protection, Christian groups lobby against gay rights legislation, oil companies lobby for, well, probably a whole lot of bad things.

The only thing that concerns me is that when legislation is introduced, it is well-crafted and achieves a worthy goal. On that we can have genuine differences of opinion on a whole variety of issues, but at least we'll be talking about the legislation itself rather than its source. You've made some good points about how the legislation can be made better and more specific, most of which I think are valid.

Or are you saying that if it had only been the Canadian exhibitors lobbying for this legislation and the legislation was completely written by a minister's office that you would have no problem with it?

June 12, 2007

MikeM said:

Shame on the Minister
First of all, copying movies in the theater is an exceptionally blatant act of theft and should not be tolerated. Surely there is a law somewhere that gives Police a reason to lay a charge. If not, then I guess, in relation to all the legislative priorities, some form of law is not out of line.

What I object to is the method used by the government to create this legislation. To have industry that directly benefits from the legislation, write the document is appalling. Is this Harper's idea of Government? I can understand that a decision is made to make a law, but please use government resources to prepare a fair law. Surely, there are enough competent lawyers working for the Minister to do that.

Finally, back door deals STINK. The Minister has put out a "for sale" sign and I'm not sure that this is the best way to represent the people of Canada. Get the facts via independant sources, make a decision for what's best for Canadians, and then act. No one objects to protecting the film industry. Canadians benefit from significant expenditures on movie productions here, but make sure that the facts are correct before you act.

Police aren't going to divert a lot of resources to squash this and young offenders will do most of the recording on behalf of the real criminals, so the law will likely do little to change the situation. At least the government will be able to say to their US benefactors that they tried.
June 12, 2007

Michael Geist said:

...
ImJohnGalt,

You raise several issues worth addressing. First, I don't think the claim that the law will require a reallocation of police resources is particularly controversial. In addition to statements to that effect from the RCMP and government officials, the Hollywood lobby groups have also called for more resources on the issue. I dont challenge the claims because they are credible.

As for firm numbers on camcording, that is precisely what I have asked for. As I mention in the column, Oda was also asked about independent data and she indicated that the government did not have any.

I would love to post the ATIP documents, but that would ironically raise concerns about copyright infringement.

I am not trying to support the act of camcording. I have consistently said that such activity is wrong. Rather, I am focusing on how this law is made and how the priorities are established. I fundamentally disagree with the notion lobbying is irrelevant and that is everyone is doing it. The reality is that many important perspectives do not have lobbyist backing - consider some of the copyright issues you note in your post - and that clearly has an impact on the legislative agenda and what form government bills take.

Bill C-59 will pass because all parties will rightly conclude that there is no justification for camcording. At the same time, I don't think there is a justification for unnecessary laws crafted by lobby groups that leap ahead of other, arguably more important, priorities.

MG
June 12, 2007

fedge said:

...
Another reason to nor re-elect Oda or Bernier and to kick Douglas Frith in the balls the next time you see him...

Way to go, Bev. I am ashamed yet again to admit I voted for you. Next time, no vote for you! Your boss is doing a pretty good job of ensuring your party wont be re-elected next time anyways though.
June 13, 2007

Robert A. said:

...
If you want police to enforce restrictions on camcording, you're going to pay, not just financially, but by surrendering freedom. Restrictions on video recording WILL NOT END WITH COPYRIGHTED MATERIAL. At the deep end of this slippery slope we'll have the type of abuse reported in the linked article: a young man faces 7 years in jail for recording a traffic stop. Meanwhile the police dashboard camera was operating, but that's perfectly OK.

Video recording leads to felony charge
[ link ]

No more Rodney King trials--the person recording would be the criminal. No more "Copwatch" organizations, like the one featured in this video of a police officer nearly killing a black man (who was then charged with assaulting the officer).

[ link ]

The myopia displayed by you "Intellectual Property" fanatics is pathetic and irresponsible. But then, what can be expected of a legislative and review process in which there is not one black person involved? Little chance of YOU getting assaulted by police, is there? This is the thin edge of a big wedge.
June 13, 2007

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