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Ten More Questions for Industry Minister Prentice

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Monday May 26, 2008
Last fall, as Industry Minister Jim Prentice was preparing to introduce new copyright legislation, I wrote an article in the Hill Times posing ten questions to Prentice about the forthcoming bill. Many of the questions - which focused on issues such as flexibility in implementing international copyright treaties, concern about the bill from the privacy community, fears about the impact of the law on security research, and doubts about the constitutionality of the proposal - remain unanswered.  Yet the six-month copyright delay has raised many more questions, including the following ten, which appear in this week's Hill Times (Hill Times version (sub req), homepage version):

1. Days before you were scheduled to introduce the copyright bill, you claimed that Canadian business executives were anxious for copyright reform.  In February 2008, however, the Business Coalition for Balanced Copyright, which features a who’s who of Canadian business (Telus, Rogers, Cogeco, SaskTel, MTS Allstream, Google, Yahoo, Retail Council of Canada, and Canadian Association of Broadcasters) spoke out against U.S.-style copyright legislation and in favour of an expanded fair dealing provision. Why is Canada's Industry Minister prepared to ignore the concerns of Canadian business?

2. In recent months countries such as New Zealand and Israel have enacted wide ranging copyright reforms that have either rejected the U.S. approach or included significant flexibility to preserve the copyright balance.  Why are those countries able to strike a balance in the face of U.S. pressure, yet Canada appears ready to cave to U.S. insistence that it follow its much-criticized model? 
3. There has been considerable speculation that the forthcoming bill will seek to drum up public support by including a "time shifting” provision to allow Canadians to legally record television shows.  Since Canadians increasingly record shows using digital recorders, users that circumvent digital locks on such shows (which are occasionally inserted by broadcasters and cable companies) will still run afoul of the law.  What is the value of "modernizing” the Copyright Act if the provisions are outdated before they are even introduced?

4. Earlier this year, the Conservative government established a new policy that commits to a 21 day House of Commons review period of any treaty prior to the introduction of any ratifying legislation.  That policy was recently followed with respect to the trade agreement between Canada and the European Free Trade Association. Why are you prepared to ignore that policy with the forthcoming copyright bill, which you have stated that it is designed to bring Canada into compliance with the World Intellectual Property Organization's Internet treaties?

5. Last December, you claimed that copyright reform was needed to address trading partner criticisms that characterize Canada as weak on copyright protection.  In recent weeks, the World Economic Forum ranked Canadian intellectual property protection ahead of the U.S., while Managing Intellectual Property, a respected international publication, placed Canada fourth among the G8 nations.  With global surveys refuting claims about "weak” Canadian laws, why have you not promoted the strength of Canadian law to our trading partners?

6. Several weeks after the initial decision to delay introducing copyright reform, the Federal Court of Appeal ruled that the private copying levy could not be applied to Apple iPods and other digital audio devices. Why has the government avoided addressing a private copying system that is clearly broken and that has cost Canadian consumers nearly a quarter of a billion dollars?

7. Rogers Wireless just announced that the Apple iPhone will make its long awaited debut in the Canadian market later this year.  Reports indicate that consumers worldwide have unlocked millions of iPhones to allow for greater functionality and more competitive wireless pricing.  Will the government to commit to ensuring that the new copyright bill will not render unlocking an iPhone an act of infringement nor prohibit the distribution of software programs that could be used to unlock these devices?

8. Liberal Industry critic Scott Brison has criticized the lack of public consultation on the forthcoming copyright bill, claiming that your approach has been "anything but transparent.” Brison's criticisms are consistent with comments from many copyright stakeholders who have still not had an opportunity to meet with you. Why has the government avoided hearing from all concerned stakeholders? Why is it prepared to move forward with legislation when it has been seven years since the last comprehensive copyright public consultation?

9. NDP digital copyright critic Charlie Angus recently raised concerns during Question Period regarding the potential for individual Canadians to face millions of dollars in liability for file sharing a collection of songs that sell for 99 cents each.  Given support from business groups for more "rational and effective enforcement” that limits damages in cases of minimal harm, why are you likely to ignore these concerns and leave the damages provisions untouched?

10. Earlier this month, librarians from the Library of Parliament told a Parliamentary Committee that copyright law could hinder Members of Parliament's ability to access and use library information.  The committee agreed to write a letter to you and Canadian Heritage Minister Josee Verner asking that you consider a special fair dealing exemption for Parliamentarians.  How do you plan to address this concern?  Will Parliamentarians enjoy greater access than ordinary Canadians, or will your legislation ensure that everyone is locked out?
Comments (9)add comment

RyanH said:

...
Anyone know if Prentice is having any more Christmas parties that interested parties could show up at? The last one seemed to work out well.
May 26, 2008

Jim said:

Angus\' Question
Hey folks, I'm just wondering if someone could set me straight on this... Where exactly are Canadians TODAY with regards to liability for file sharing. As a parent of teens, this particular facet of the legislation concerns me greatly. I've discouraged it in our household since the Copyright decision a couple years ago, but as I'm by no means law-savvy, our current position seems murky to me.

Thanks in advance
May 26, 2008

Robbo said:

Great Questions
Superb list of questions. Let's hope Charlie Angus and Scott Brison get the opportunity to present them to Prentice in Parliament - if only so we can get another video clip of his smarmy non-responses.

Keep up the great work.

Cheers.
May 26, 2008

josh said:

file sharing
Jim: The safest approach with respect to music appears to me to be a file leech since making a copy for private use appears to not be an infringement due to Copyright Act s.80.

All: Do any of origin, or intent and timeline matter in copyright?

1. Origin: Does s.80 exempt my copy of a CD made from a friend's iPod the same as one made from a store-bought CD?

2. Intent & timeline: If I make myself a copy of a store-bought CD for private use, and use it privately, and then turn around to do something else with it which is not "private use," is my copy still exempted by section 80?
May 26, 2008

Chris Brand said:

origin, intent and use
This is from my non-lawyer reading of the Act. It's not legal advice.

The Copyright Act doesn't say anything about the original that a private copy is a copy of. Note that it does say that the copy has to be "onto an audio recording medium", which has a specific definition (I have no idea whether your hard drive is an "audio recording medium", for example, although a CD-R clearly is because it's levied).

Don't think of the copy itself as legal or illegal - it's what you do with it that matters. *Making the copy* ("the act of reproducing") is legal if it's "for the private use of the person making the copy", but you'd still need a license if you wanted to broadcast from that copy, for example. Of course you'd also have to prove that you really didn't make the copy "for the purpose of" any of the things listed in section 80(2) e.g. communicating to the public by telecommunication.

The Private Copying part of the Act is here :
[ link ]
May 26, 2008

Jack Robinson said:

Copyright Cabal
While the majority of comments I've read on this site appear to be largely concerned with the rightful (?) sharing and archiving of digitized media... I sense a more sinister agenda to the Harper Cabal's agenda in terms of access to and control of creativity and free expression.

And not that I'm getting paranoid about Steely Steve's intentions or their Machiavellian ramifications... but the following comment DID NOT post on My Yahoo Canada's subscriber blog due to 'Server Problems'... nor anything else I've submitted over the past three weeks:

'The coalition members include Cisco (the Main-Frame Mafia), Imperial Tobacco (kiddie cancer-peddlers), 'Big Louie' Vuitton, Paxil-pushin' Pfizer, GE PCBs Inc. and other corporate orges 'representing' the pharmaceutical, movie and recording industries. Given the Harper government's accommodation of Crony Capitalist agendas over Charter Rights, market competitiveness, free consumer choice and viable environmental concerns... It's a slam-dunk that our collective synapses will soon become bar-coded property.'

Farmer George, Brave Newbie Aldous and Dickhead Phil are likely getting a big, fat hoot over all this predictable shit... hopefully bowling amidst the Spheres!



May 26, 2008

George said:

High Speed Access
In many rural areas, high speed access is seen as an economic boost for local start-ups and other economic activity. I can send you links and other materials to support this view. This is reason enough to prevent throttling.

May 26, 2008

R. Bassett Jr. said:

Those are all great questions
And, I support having each one of them answered. I am particularly interested in question nine.

As one of the many "working poor" of this nation, and a person who has run out of fuel oil for his heat and hot water and who can't afford to fill the tank (saving up for winter!), I would love to know if I can expect to be sued into oblivion for owning a computer and actually using it for something useful, like archiving my DVDs. There are so many useful things we can do with computers and I get the impression that these new laws are going to severely limit how data processing can enrich our lives.

"Format shifting" my DVDs to my computer, so my family can watch them without using the original media (great with a two year old!), is wonderful and harmless. I have no problems buying a DVD so I can bring it home and format shift it. Optimally, I'd like to be able just buy an Xvid format of the movie, but my "high speed" internet connection is severly limited (physically and by contract", so downloading movies from an online service wouldn't even be an option. What we need are "Media Kiosks", where we can stick in an SD card or USB drive and buy media. I'm sure Walmart would love this, as the kiosks would take up far less space than CDs and DVDs.

Anyhow, by the sounds of it the CRIA is likely already licking the stamps for the law suit letters, as they could sue every Canadian and come away with trillions if only 10% of people showed up in court. Horay for sesnible legislation...
May 26, 2008

Richard Stallman said:

Response
I support and admire your efforts to protect Canada from a new unjust
copyright law, but there are a few points in the article that I feel
call for criticism.

2. In recent months countries such as New Zealand and Israel have
enacted wide ranging copyright reforms that have either rejected the
U.S. approach or included significant flexibility to preserve the
copyright balance.

Please don't present the New Zealand law as a model for Canada. That
law is basically similar to the US DMCA: they both endorse Digital
Restrictions Management and censor free software for accessing digital
works. The differences are minor by comparison with that.

The concept of "balance", as it is usually understood, is the wrong
criterion for judging copyright issues. See
[ link ].

Rather than endorsing part of the wrongthat Prentice wants to do --
for instance, the part included in the New Zealand law -- Canadians
should instead demand improvements in copyright law.

One improvement to demand is the legalization of non-commercial
copying and redistribution, including peer-to-peer sharing on the
Internet.
Another improvement would be the prohibition of conspiracies of
companies to restrict the technology available to the public. One
example of such a conspiracy is found in DVDs: all the manufacturers
of DVD players have made an agreement to build them to restrict the
public. If companies try something like that in the future, their
executives should be sentenced to prison.

stated that it is designed to bring Canada into compliance with the
World Intellectual Property Organization's Internet treaties?

That in itself is a reason to reject the bill. Canada should not
adopt any such laws, because Canada should not adhere to those
treaties. There is nothing positive in them: all they do is commit
the state to giving legal backing to companies that design products to
restrict the users.

Canada should not obey these treaties, and neither should any other
country. If Canada has already signed them, it should back out of
them.

In recent weeks, the World Economic Forum ranked
Canadian intellectual property protection ahead of the U.S., while
Managing Intellectual Property, a respected international publication,
placed Canada fourth among the G8 nations.

These organizations use the term "intellectual property" as propaganda
to spread bias and confusion. That's what the term is: propaganda.

Copyright law has next to nothing in common with patent law, and
nothing at all in common with trademark law. The first step in
thinking about any one of these laws is to help others stop lumping it
together with the others. In other words, stop using the term
"intellectual property".

See [ link ] for more explanation
of why that term should never be used.
June 02, 2008

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