Wikileaks Cables Show Massive U.S. Effort to Establish Canadian DMCA
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Friday April 29, 2011
This post highlights some of the key cables. An earlier post discussed confirmation that public pressure delayed the introduction of a copyright bill in 2008 and a parallel post focuses on the linkages between CRIA and the U.S. government lobbying effort.
The cables include clear confirmation that the copyright issue has escalated to the very top with Prime Minister Harper repeatedly seeking to assure the U.S. that Canada would pass copyright legislation consistent with their demands. A 2008 cable notes "the Prime Minister told the President last August that Canada would pass copyright legislation." Moreover:
"senior GOC officials, especially Industry Minister Prentice, repeatedly assured the Ambassador and senior Mission Canada officers that the copyright bill would be introduced "soon." Specifically, assurances were given that the legislation had been finalized and would be introduced prior to the Christmas recess, and then again immediately upon Parliament's return in January. Neither of which occurred."
This came on the heels of an April 2007 letter from Harper to U.S. Ambassador David Wilkins promising action. U.S. officials were not impressed by the letter, noting that it seemed to justify inaction on the file. The Harper letter was in response to a Wilkins letter seeking digital lock legislation within a month.
Canadian Officials Provide Inside Information
The cables also suggest that the U.S. is often privy to inside information on what is on the way. In the summer of 2007, U.S. officials met with Ailish Johnson from PCO, who revealed that "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." Let me repeat that - PCO told U.S. officials the content of the private mandate letters to two Ministers from the Prime Minister. At the same meeting, Johnson encouraged the U.S. to keep raising the issue, noting:
Both Johnson and Gray [of the Canadian Chamber of Commerce] said that U.S. Embassy pressure has been helpful in moving this issue forward. They both also indicated that it would be helpful for the Embassy to continue to raise the issue with Canadian officials and Members of Parliament, but said that public pressure from the Emabssy could be counter productive at this point.
U.S. Lobbying Pressure on Copyright
There are numerous cables that highlight U.S. strategies to pressure Canada on the copyright reform file. 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 Ministers Bernier and Oda. A March 2007 cable chronicles repeated meetings and attempts to elevate the issue as a top priority.
Another cable discusses a strategy with Canadian copyright lobby groups that would allow for a "good cop, bad cop" approach:
some industry associations plan to use the anticipated USG insistence on notice and takedown as a chance to play good cop to our bad cop, and they will present their acceptance of notice and notice as a signal to the GOC that they are willing to be "more reasonable than the Americans".
The cables show even the U.S. had a hard time taking Canadian claims of independence seriously. For example, when then Canadian Heritage Minister Bev Oda told the media that anti-camcording legislation was an independent policy change that was not the result of lobbying pressure from the U.S., a U.S. cable called her response "disingenuous."
The U.S. also admits that the case for digital locks isn't an easy one, noting in a cable that:
Efforts to encourage the GOC to ratify its WIPO obligations have been hindered by the sheer complexity of copyright law and IP-related issues, and perceptions by consumers and artists
that technological protection measures might be harmful.
U.S. on Bill C-60
The cables also confirm U.S. opposition to Bill C-60, the Liberal 2005 copyright bill. The U.S. was displeased with a statement several months in advance of the bill that foreshadowed its content, particularly on digital locks and ISP liability. Once the bill was introduced, one cable notes "faced with such a flawed document, some industry representatives are stuck hoping that the legislation, for which they pushed so long and hard, will die in committee." Another cable includes the U.S. embassy putting out the call for assistance, saying "to make the case for stronger rules in areas such as Internet Service Provider liability, please provide a clear USG reaction to the draft legislation for us to use in discussion with stakeholders, legislators, GOC agencies and the press."
U.S. on Bill C-61
In the months leading up to the introduction of the Conservative's Bill C-61, the U.S. also expressed concern with a new policy to give the House of Commons review of all international treaties (I raised this as an issue at the time). The Embassy notes:
Of more direct interest to the USG, the new procedures could complicate the government's efforts to bring Canadian law into compliance with the WIPO Internet treaties, which Canada signed in the late 1990's but has not yet ratified. It remains unresolved whether the WIPO treaties will have to be tabled in Parliament for the 21-sitting-days before the associated copyright legislation is introduced.
After Bill C-61 was introduced, a cable noted the media coverage of the bill was generally negative and the bill was likely to die on the order paper.
U.S. on the 2009 Copyright Consultation
The U.S. took a very cynical view of the 2009 consultation on copyright with a cable titled "Copyright Reform in Canada: Day 4,235". Tanya Peatt, who has served as Canadian Heritage Minister James Moore lead advisor on copyright, told U.S. officials that the Canadian government was "conducting these consultations in part because of the heavy criticism for not
holding consultations over the last copyright bill." The Embassy was not confident that a bill would be introduced in 2009 (it wasn't with C-32 not introduced until June 2010). The Embassy also sought speaking lines for its view on copyright, which include digital lock legislation to match the U.S. DMCA.
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Friday April 29, 2011