The Conference Board of Canada bills itself as "the foremost, independent, not-for-profit applied research organization in Canada. Objective and non-partisan. We do not lobby for specific interests." These claims should take a major hit based on last week's release of a deceptive, plagiarized report on the digital economy that copied text from the International Intellectual Property Alliance (the primary movie, music, and software lobby in the U.S.), at times without full attribution. The report itself was funded by copyright lobby groups (U.S. Chamber of Commerce, Canadian Chamber of Commerce, Canadian Anti-Counterfeiting Network, Copyright Collective of Canada which represents U.S. film production) along with the Ontario Ministry of Research and Innovation. The role of the Ontario government obviously raises questions about taxpayer dollars being used to pay for a report that simply recycles the language of a U.S. lobby group paper.
Start with the press release promoting the study, titled "Canada Seen as the File Swapping Capital of the World" which claims:
As a result of lax regulation and enforcement, internet piracy appears to be on the increase in Canada. The estimated number of illicit downloads (1.3 billion) is 65 times higher than the number legal downloads (20 million), mirroring the Organisation for Economic Cooperation and Development’s conclusion that Canada has the highest per capita incidence of unauthorized file-swapping in the world.
While the release succeeded in generating attention, the report does not come close to supporting these claims. The headline-grabbing claim of 1.3 billion unauthorized downloads relies on a January 2008 Canadian Recording Industry Association press release. That release cites a 2006 Pollara survey as the basis for the statement. In other words, the Conference Board relies on a survey of 1200 people conducted more than three years ago to extrapolate to a claim of 1.3 billion unauthorized downloads (the survey itself actually ran counter to many of CRIA's claims). The OECD study that the Conference Board says found the highest per capita incidence of unauthorized file sharing in the world did not reach that conclusion. The report - which is based on six year old data that is now out-of-date - was limited to the 30 OECD countries (not the world) and did not make any comment or determination on unauthorized activity.
That is just the press release - the report itself is even worse as it is largely a copy of the IIPA 2008 Special 301 Report on Canada. Given the lack of attribution in some instances, this work would face possible plagiarism sanctions in almost any academic environment. Even where there is attribution, the chart below demonstrates that the report simply adopts the IIPA positions and language as its own.
|Conference Board of Canada Digital Economy Report |
|IIPA 2008 Canada Special 301 Report |
|Introduction to Canadian copyright |
|Almost alone among developed OECD economies, Canada has taken no significant steps toward modernizing or clarifying its copyright law to meet or ratify the new global minimum standards of the WIPO Internet treaties. Canada is deficient in many areas, including in its enforcement resources and policies and its seeming unwillingness to impose deterrent penalties on pirates. Although the Government of Canada acknowledged many of these deficiencies in 2007, listing copyright reform among its top legislative priorities, by the end of 2008 almost nothing had been produced. |
[no citation provided]
|Almost alone among developed economies in the OECD, Canada has taken no meaningful steps toward modernizing its copyright law to meet the new global minimum standards of the WIPO Internet Treaties, which Canada signed more than a decade ago. Its enforcement record also falls far short of what should be expected of our neighbor and largest trading partner, with ineffective border controls, insufficient enforcement resources, inadequate enforcement policies, and a seeming unwillingness to impose deterrent penalties on pirates. In 2007, parliamentary leadership and even the government itself, at the highest levels, acknowledged many of these deficiencies, and the government listed copyright reform among its top legislative priorities. But by the end of the year, these encouraging statements produced almost nothing |
|TPM Recommendation |
|When Canada signed the WIPO Internet treaties, it pledged long-term support for treaties designed to respond to what were then new technologies. Notably, in order foster the healthy development of e-commerce in copyrighted materials, these treaties obligated member countries to enact legal frameworks to protect the technological measures used by copyright owners to control their works. Although nearly every other OECD country met its obligation in this area, Canadian law remains antiquated. This means that, in order to comply with WIPO Internet treaties, we need legislation that will: |
- comprehensively protect TPMs aimed at managing access to copyrighted works and preventing unauthorized copying;
- outlaw trafficking in devices aimed at directly or indirectly circumventing TPMs;
- define exceptions with care; and
- provide strong civil and criminal deterrents to violations.
|When Canada signed the WCT and WPPT more than a decade ago, it pledged support for treaties that were designed to respond to what were then new technologies. Notably, as a crucial element to foster the healthy development of e-commerce in copyrighted materials, these treaties obligated adhering countries to enact effective legal regimes to protect technological measures used by copyright owners to control access to and copying of their works. While nearly every other OECD country either has met this obligation or is well on the way to doing so, Canadian law remains hopelessly outdated in this area. IIPA urges Canada to fulfill its pledge by enacting laws that deal with technological protection measures (TPMs) in a manner that fully complies with the WCT and WPPT. This means legislation that: |
- comprehensively protects TPMs, both in so far as they manage access to copyright works and in their use to prevent unauthorized copying and the exercise of other exclusive rights;
- outlaws trafficking in devices aimed at circumventing TPMs, or providing circumvention services, and defines violations without imposing onerous intent requirements;
- defines exceptions or defenses with care, so as to avoid the creation of a market for circumvention devices or services; and
- provides strong civil and criminal remedies for violations.
|ISP Liability |
|In a 2004 decision, the Supreme Court of Canada observed that the “effective remedy . . . would be enactment by Parliament of a statutory ‘notice and take down’ procedure as has been done in the European Community and the United States.” Accordingly, legislation should also provide a true “notice and takedown” system that provides for access removal due to online infringements, rather than just a “notice and notice” regime as proposed by previous Canadian governments. |
|In a 2004 decision (SOCAN v. CAIP), the Supreme Court of Canada observed that the “effective remedy. . . would be enactment by Parliament of a statutory ‘notice and take down’ procedure as has been done in the European Community and the United States.” Accordingly, legislation should also provide a true "notice and takedown" system that offers an expeditious means of shutting off access to infringing online activity, rather than confining itself to the mere "notice and notice" regime proposed by previous Canadian governments. |
|State of Law on P2P |
|New legislation (or amendments to the Copyright Act) should also clarify liability under Canadian law for those who knowingly facilitate massive infringements (e.g., providers of peer-to-peer file-sharing software services). On this issue, Canadian jurisprudence is contrary to the international trend of litigating against P2P services that facilitate massive worldwide infringement. |
|New legislation should also clarify liability under Canadian law for those (such as peer-to-peer (p2p) service providers and distributors of file sharing software) who in the Internet context knowingly facilitate massive infringements. In contrast to the international trend, exemplified by successful lawsuits in Australia, Korea, Taiwan and the U.S. against p2p services that were facilitating massive worldwide infringement, recent Canadian case law on liability for authorizing infringement raises questions as to whether a comparable enterprise would be found liable under Canadian law. |
|P2P Law Reform |
|Clear rules and regulations would allow copyright infringement to be dealt with at the source instead of at the point of consumption, thus preventing litigation against users of illicit P2P services. |
|Clear rules on this topic would allow copyright infringement to be dealt with at the source instead of at the point of consumption, thus facilitating the avoidance of litigation against users of illicit p2p services as direct infringers (the topic of much public discussion in Canada). |
|State of Piracy, Part One |
|The Internet piracy problem within Canada continues to worsen and is causing serious problems for markets in other countries. In 2007, piracy operations in Alberta, British Columbia, and Ontario were uncovered. Pirates in these jurisdictions advertised these operations on the Internet through their own websites or other sites, including Craigslist. |
|The piracy problem within Canada continues to get worse, not better, and is causing serious problems for markets in other countries, including the U.S. In 2007, the Entertainment Software Association’s investigations uncovered numerous piracy operations in Alberta, British Columbia, and Ontario. Pirates openly advertised these operations on the internet through their own websites and/or online classifieds such as Craigslist. |
|State of Piracy, Part Two |
|Each pirate typically owned at least one personal computer that contained thousands of pirated |
works. In addition, one operation in Ontario possessed over 2,000 burned games on optical discs for various gaming systems.
|Each pirate typically owned at least one personal computer containing thousands of pirated software titles that he could easily burn onto optical discs. One operation in Ontario that the ESA confronted on June 23, 2007, possessed over 2,000 burned games on optical discs for various gaming systems |
|At the same time, it [Bill C-60] included proposals for use of a work in a “lesson, text or examination” in educational settings and a provision authorizing inter-library distribution of digital copies. These would have had a significant negative impact on publishers of scientific, technical, and medical materials and would have made Canada an exception to world trends in this area. |
|Bill C-60 also included flawed proposals in the area of educational and library exceptions, such as an ill-defined new exception for use of a work in a "lesson, text or examination" in educational settings, and a provision authorizing interlibrary distribution of digital copies, that would have had a significant detrimental impact on publishers of scientific, technical and medical materials in particular. |
|WIPO Importance |
|The ratification of the WIPO Internet treaties is extremely important for a country’s economy and culture. For instance, compliance with the treaties helps foster regulatory and non-regulatory environments for intellectual property protection. This gives nations the capacity to: |
[one cite to IIPA website]
- overcome existing barriers to accessing scientific, medical, and technical data; educational materials; and software.
- Trade in these resources is needed for national prosperity and international competitive advantage;
- attract higher levels of foreign direct investment in high-technology and information-intensive businesses;
- build stronger economic, social, and cultural links to other jurisdictions; and boost their cultural and creative industries in a major way. Through digital networks, digital creations (e.g., music, art, and literature) can reach new international markets.
|The importance of ratification and deposit of the WCT and WPPT for a country's economy and culture cannot be overstated. For instance: |
- Electronic commerce can help overcome existing barriers to access to scientific, medical and technical data, educational materials, and technical and productivity software. Trade in these vital resources, needed for prosperity and competitive advantage in the Information Age, will be much cheaper, more efficient, and easier in a digital networked marketplace.
- Electronic commerce can help attract higher and more consistent levels of foreign direct investment in high technology and information-intensive businesses. A host of service, processing and other functions can conveniently be out-sourced, which in turn will enhance the skills and opportunities of a country's citizenry.
- Electronic commerce can help build stronger economic, social, and cultural links in the region, without regard to geographic proximity.
- Electronic commerce can provide an enormous boost to a country's cultural and creative industries. Through digital networks, that country's music, art, literature, and folklore can reach new markets throughout the world, and be delivered directly to paying customers around the globe.
|WIPO Implementation |
|To fully implement the WIPO Internet treaties, countries need to upgrade their copyright laws. When implementation is complete, each country will have: |
[one cite to IIPA website]
- protections against illicit circumvention of technologies that copyright holders use to prevent theft;
- protections against illicit tampering with tags and codes that are used to facilitate legitimate digital distribution and licensing;
- extended or clarified rights for copyright owners; and
- harmonized protections for the rights of performers and producers of phonograms.
|To fully implement the WIPO Internet Treaties, countries will need to upgrade their copyright laws, whether through minor changes or more substantial revisions. When implementation is complete, each country will have: |
- Protections against the unlawful circumvention of effective technologies that right holders use to prevent theft of their creations.
- Protections against the unlawful tampering with tags and codes associated with copies of protected works and phonograms that are used to facilitate legitimate distribution and licensing.
- Recognition of extended or clarified rights for copyright owners: for example, a right to control distribution of copies of creations, and a right to control communications of a work, including the "making available" of a work or phonogram to the public in an interactive manner.
- Harmonized protections (through implementation of the WPPT) for the rights of performers and producers of phonograms.
While the flagship Digital Economy report is the only one with plagiarism, two other reports on IP issued at the same time also raise concerns. A report titled Creating Value and Stimulating Investment: A Business-Level Assessment of the Role of Intellectual Property, retreads the same guesses on counterfeiting, stating:
Estimates from Canadian Manufacturers & Exporters place the value of counterfeit goods in Canada at $20 billion to $30 billion. RCMP intelligence shows that the trend is "billions and growing." Although the RCMP and others acknowledge that no comprehensive study has been done on the specific amount of pirated and counterfeit goods, they concur that a widely accepted estimated cost of counterfeiting and piracy to the Canadian economy ranges between $10 billion and $30 billion per year. To validate these estimates, Canadian piracy and counterfeiting losses can be estimated in relation to U.S. losses. The U.S. Chamber of Commerce estimates that counterfeiting and piracy costs the U.S. economy US$250 billion per year. Since the GDP of the Canadian economy is approximately nine per cent of the U.S. economy, the cost of counterfeiting and piracy in Canada is approximately US$22.5 billion- a crude estimate, but nevertheless validating all the above figures.
Of the course, all estimates - the CME, RCMP, and Chamber of Commerce are all based on the same guess, so there is no "validation" of the figures as the report suggests.
A third report titled National Innovation Performance and Intellectual Property Rights: A Comparative Analysis misleads by lamenting that Canada ranked 19th worldwide in intellectual property protection according to a 2008 World Economic Forum study on competitiveness. What the report fails to mention is that Canada was actually tied with four other countries ranked 15th to 19th including the United States, which in the same paragraph is heralded as a leader in innovation whereas Canada is described a laggard.
The Digital Ecomomy report raises some deeply troubling questions for the Conference Board of Canada, its board directors, and for Minister John Wilkinson, whose department helped fund it. In particular:
For Anne Golden, the President and CEO of the Conference Board of Canada:
For Stephen Toope, President of UBC, and Indira V. Samarasekera, President of the University of Alberta, both members of the Conference Board of Canada board:
- Is a deceptive, plagiarized report drawn from a U.S. lobby group consistent with an organization that claims that it is non-partisan and that does not lobby?
- How much was the Conference Board of Canada paid to produce this report?
- Does the Conference Board of Canada stand by the report in light of these findings?
- Will the Conference Board of Canada retract the report and the inaccurate press release that accompanied it?
Perhaps most importantly, for Minister of Research and Innovation John Wilkinson:
- Do they condone or support the use of plagiarism in this report?
- Will they ask the Conference Board of Canada to review this report and to retract it?
- How much public money was spent in support of this report?
- Does the government support the use of public money for a report that simply repeats the language of a U.S. lobby group?
- Will the Minister ask the Conference Board of Canada to refund the public money spent on this report?
- Will the Minister publicly disassociate himself from the report in light of these findings?
You can pose these and other questions yourself (Golden, Toope, Samarasekera, Wilkinson) as I think the public deserves some answers.
Update: See this post for the Conference Board of Canada's response and my rebuttal.
Monday May 25, 2009