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    Ten Questions for Industry Minister Prentice

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    Monday December 10, 2007
    Appeared in the Hill Times on December 10, 2007 as Ten Questions for Industry Minister Prentice

    In anticipation of the forthcoming copyright bill, the CBC Radio program Search Engine recently conducted an innovative experiment by asking its listeners to post questions about the bill for Industry Minister Jim Prentice.  What followed was remarkable - the program received hundreds of questions from Canadians from coast to coast.  Although Prentice refused to appear on the program, the public outcry demonstrates that there remain many doubts about government policy in this highly contentious issue.

    Indeed, with a bill expected this week, Prentice will have to respond to public concern, which, in the tradition of the David Letterman Top 10 list, would include the following ten questions:

    1.   After you unveiled the government's approach to the release of new spectrum, you indicated that you granted a full hour to each company involved in the issue to state their case.  It has also been reported that you have met with U.S. Ambassador to Canada David Wilkins on the copyright issue.  Which other stakeholders have you met with on copyright reform?  Have you personally met with consumer groups, privacy commissioners, education groups, researchers, and creator groups such as the Canadian Music Creators Coalition and Appropriation Art, to hear their concerns?

    2.   The public was last consulted on digital copyright reform more than six years ago in 2001.  Given the dramatic change since that time, why has the government not consulted the public on this issue before introducing major copyright reforms? Given the lack of consultation, will the government commit to full committee hearings that grant everyone who wants to appear the right to do so?

    3.   While the government is clearly committed to implementing the World Intellectual Property Organization's Internet treaties, those treaties feature considerable flexibility.  Leaving aside the debate over whether the treaties are good policy for Canada, there is no debating that Canada need not adopt a U.S.-style approach in order to be compliant with the treaties.  Given that flexibility, why would you unnecessarily adopt a more restrictive approach?

    4.    As you took to the podium for the spectrum auction announcement, you stood behind a sign that proclaimed "putting consumers first."  How do you reconcile that claim with the strong opposition to anti-circumvention legislation from all Canadian consumer groups who fear that the law will be used to create unfair limitations on what consumers can do with their own personal property?

    5.    Earlier this year, your government released its national science and technology strategy. Notwithstanding the emphasis on research and education, the copyright reforms would represent a significant setback for the Canadian education community who would be locked out of fundamental education rights such as research and private study.  Moreover, the Canadian digital security community has warned against anti-circumvention legislation, which it fears could harm an emerging industry in Canada. How do you reconcile the emphasis on science and technology with copyright reforms that would create barriers to such initiatives?

    6.    The Privacy Commissioner of Canada, recognizing the potential impact of copyright reform on the privacy rights of millions of Canadians, has called on the government to conduct a privacy impact assessment on copyright reform legislation.  Have you conducted such an assessment?  If so, will it be released to the public?

    7.   The Conservative Party of Canada pledged in its 2005 policy declaration to "eliminate the levy on blank recording materials."  Why has that pledge been abandoned?  Similarly, the 2005 policy declaration stated that "the Conservative Party believes that reasonable access to copyright works is a critical necessity for learning and teaching for Canadian students and teachers, and that access to copyrighted materials enriches life long learning and is an essential component of an innovative economy."  Why has the party abandoned this position with copyright reform that will make it more difficult for teachers and students to access copyright materials?

    8.    The Conservative Party of Canada has regularly emphasized the need to respect provincial rights.  Academic experts have already raised concerns about the potential constitutional validity of anti-circumvention legislation that would represent a significant incursion into provincial jurisdiction.  Indeed, the "para-copyright" provisions found in anti-circumvention legislation are better characterized as laws related to property (a provincial matter) rather than copyright (a federal matter).  How do you reconcile this inconsistency?

    9.   Your government claims that it prioritizes the needs of small business in Canada, going so far as to appoint Diane Ablonczy as the Secretary of State for Small Business.  Yet if the U.S. legislation is any indication, the Canadian version will have a devastating effect on small business, which will face barriers to innovation and the prospect of costly litigation.  For example, Skylink Technologies, an Ontario company, was forced to spend millions of dollars in legal fees to defend itself in U.S. courts over claims that its universal garage door remote opener violated U.S. copyright law.  How will the Canadian version guard against this outcome?

    10.   Copyright lobby groups claim that Canada has weak copyright protection, yet as was recently noted in the Hill Times, there are many areas where Canada's law is stronger than that found in the U.S.  For example, Canadian copyright law does not include parody, time shifting, and device shifting within fair dealing.  As a result, many forms of free speech may violate the law in Canada, while common activities such as recording a television show is still not permitted.  If you are interested in "modernizing" copyright law, why have you avoided addressing every day issues that matter to individual Canadians?
     
    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.

    Comments (5)add comment

    Roddy said:

    Heading
    I note the people who want a relaxation of the copyright laws in canada _use material, they don;t ordinarily _originate material.. I have waited a long time to get proper legal protection for the creator- and I don;t care how much pirates whine about access to other peoples intellectual property.. MAKE UP YOUR OWN ART OR WAIT TIL THE ORIGINATORS DIE... to which i add EVERY DAY YOU STEAL SOMEONE ELSES ART IS ONE MORE DAY YOU WON"T GENERATE SOMETHING ORIGIONAL YOURSELF.. to which I add yet... AND IF PEOPLE STEAL OTHER PEOPLES WORK & THE GOVERNMENT WON"T PROTECT THE ORIGINATORS, IT'S INVITING A RETURN TO BROKEN BONES IN DARK ALLEYS..
    take ye notice all spoiled cyber brats ..smarten up !
    Canada matching copyright laws with the USA is a fine idea..matching world copyright laws is an excellent idea.. and may the punishments awarded on the convicted content thieves be doubled..& the lash for repeat offenders, - thieves have killed off world recorded music - they will not kill off any more ( * see dark alley / bone re configuration ) Don't do to 21st c art what your forefathers did to First Nations lands..
    December 12, 2007

    Issachar said:

    Piracy vs. Fair use
    Don't shout. It doesn't help your argument. And don't rant about the lash. You sound like a troll.

    That said, this isn't about piracy. While I'm sure some people would like to get rid of copyright altogether, that's not what we're talking about here. We're talking about protecting reasonable fair use rights. (Copying a CD you *bought* to your iPod, (i.e. device shifting), recording TV to watch later, (i.e. time shifting), the right to copy the stuff you *bought* to another format to protect from scratches, (i.e. backup provisions). (Have you ever given a watched a 5 year old put a DVD in the player?).
    December 12, 2007

    Roddy said:

    artist
    ?? what do you mean don't shout? its called capital letters on a keyboard.. emotional temperature..maybe save your screen ethics coaching skills for the actual five year olds in your life you allow to operate your home media center to such destruction, that may be a bad idea.........I can understand why some people would like to do away with (C) altogether..ya, same way as some people will shoplift from chain stores .. and not humble boutiques--its called selective amnesia, AKA crime.. and thanks for your right on comments about trolls..be careful, they look alot like smurfs. If this is still confusing, maybe ask your five year old to put your straight about that.. then you can be the tough stern Dad person your Mother was to you..in the meantinme, beloved Canadian don't steal other peoples art-- or rationailize stealing it
    THANK YOU
    SEE? CAPITALS DON'T HURT TO LOOK AT.. it was only a petty internet cultural brainwash moment you have yet to learn to live with.. here, have a free smiley : )

    Caps are good enough for Sesame Srreet, they should be good enough for you.. BTW If you want another copy of some music you "bought" then " buy" another copy... its wrong to photocopy a novel you bought, why would reloading your babysitting music onto an Ipod be any different ? Surely you can singalong without a home pirated copy of " Old McDonald had a Burger"

    there.. now go to your room and have some quiet time and leave art to the artists you " shopper" you
    December 13, 2007

    a guest said:

    ...
    Roddy,

    You sir appear to be an idiot.
    December 13, 2007

    Jake said:

    Mr.
    Certainly as a consumer, I believe that when I purchase a piece of digital copyrighted material, I should be able to keep a copy for my own personal use, to use as originally intended. It's because of the ease of backing up digital media that it's done, a lot of people would argue that you can't backup say, a car or a chair, and that it's the same issue, when of course it isn't. While I like the idea of a levy on recordable media, I don't like the idea of copying US legisislation. Doesn't that sound like a bit like pirating? Taking something and changing a small part to use yourself without paying for it? i.e. Taking the time to make your own copyyright legislation?
    So, in short, a levy that goes to creators to compensate from the percentage of private individuals who do pirate, balanced with a strong set of legislation for businesses who profit from pirating, and reasonable use for educational institutions would be best.

    With regards to the artists comments above, while we don't copy books, we certainly lend them out to millions of people without purchasing seperate copies, or paying for extra licenses. These are done at institutions called Libraries. You cannot compare apples to Prozac.

    December 13, 2007

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