The IP Lobby's Post-Bill C-11 Playbook: ACTA, SOPA, Warrantless Search and the Criminalization of IP |
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Friday June 08, 2012
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This long post reviews the report, focusing on the case it makes for addressing counterfeiting concerns in Canada and on the resulting recommendations. The recommendations are divided into five main groups:
The Case for Canadian Counterfeiting: What the Report Says The report unsurprisingly begins by trying to make the case that Canadian counterfeiting has become a major concern, relying heavily on European and U.S. numbers. There are some references to RCMP seizures, but the data is limited. Indeed, the report admits that "the lack of clear and credible data makes it difficult to drive policy makers to action and can compound the problem." The most credible number comes from the OECD, which has estimated global counterfeiting at $250 billion. This represents a huge decline from previous estimates as the Canadian share of this figure, based on 2% of world trade, would be $5 billion. That obviously isn't insignificant, but it pales in comparison to the 2009 IP Council report which claimed the cost could be $22 billion. Last year, the IP Council suggested that the number could actually be $30 billion. Canadian counterfeiting data has long been the source of speculative numbers without evidence or reliable methodology. In 2007, I used RCMP Access to Information requests to reveal that prior estimates were based on nothing more than a single article found on the Internet. The RCMP and government officials no longer cite these unreliable figures. In fact, the widespread use of unreliable counterfeiting claims has been repeatedly debunked. The CATO Institute did a nice job of taking U.S. claims to task earlier this year, while the world's most comprehensive study on media piracy, Media Piracy in Emerging Economies thoroughly dismantles numerous piracy claims (the study was partially funded by Canada's IDRC). Perhaps the most authoritative debunking comes the U.S. government, whose General Accounting Office conducted a comprehensive study into the claims and concluded that they could not "be substantiated or traced back to an underlying data source or methodology." The report also claims that there are significant links between counterfeiting and organized crime, citing a 2009 Rand Corporation study on the issue. Yet that study was also debunked by the IDRC funded report which noted: Arguing that piracy is integral to such networks means ignoring the dramatic changes in the technology and organizational structure of the pirate market over the past decade. By necessity, evidentiary standards become very loose. Decades-old stories are recycled as proof of contemporary terrorist connections, anecdotes stand in as evidence of wider systemic linkages, and the threshold for what counts as organized crime is set very low. The RAND study, which reprises and builds on earlier IFPI and Interpol reporting, is constructed almost entirely around such practices. Prominent stories about IRA involvement in movie piracy and Hezbollah involvement in DVD and software piracy date, respectively, to the 1980s and 1990s. Street vendor networks in Mexico City—a subject we treat at length in the Mexico chapter— are mischaracterized as criminal gangs connected with the drug trade. Piracy in Russia is attributed to criminal mafias rather than to the chronically porous boundary between licit and illicit enterprise. The Pakistani criminal gang D-Company, far from “forging a clear pirate monopoly” in Bollywood, in RAND’s words, plays a small and diminishing part in Indian DVD piracy—its smuggling networks dwarfed by local production. The report also points to a single death in 2007 reportedly due to the ingestion of counterfeit medicine. That is obviously a tragic and unacceptable incident, but the report might note that in the broader context, death due to legitimate prescription drugs are the fourth leading cause of death in Canada and the United States with tens of thousands of deaths in Canada every year due to the wrong drug, dosage errors, or adverse reactions. At the same time, Canadian Internet pharmacies serve millions of patients every year. The report unsurprisingly cites criticism from the U.S. and Europe on Canadian practices. The U.S. placement of Canada on the Priority Watch list receives the usual mention, even though the placement on the list is the result of lobbying from the same groups who are behind this report. The Canadian government position on the U.S. complaints, as described to a House of Commons committee in 2007 (and repeated regularly in internal government documents), sees this for what it is: In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts. The same could be said for this report. The Case for Canadian Counterfeiting: What the Report Doesn't Say Just as important as what the report says, is what it doesn't say. The report doesn't mention that the Business Software Alliance recently released its annual global software piracy report with new data that not only shows that Canada hit yet another all-time low but has the biggest percentage decline in the world over the past five years. For the past few years, the BSA report has repeatedly found that piracy is declining in Canada. In 2009, Canada was characterized as a "low piracy country", in 2010 the industry noted that Canada's piracy rate was at an all-time low, and last year it dropped further to another all-time low.The latest report says the Canadian piracy rate dropped further in 2011. In fact, over the past five years, the Canadian rate has dropped by 18% (from 33% to 27%), the sharpest decline in the world. The report doesn't mention that the Entertainment Software Association of Canada's own data, as found in a commissioned a study last year on the major issues facing the industry, finds that piracy is not a major concern. The reference to copyright and piracy as a concern was so low - barely above concerns about an economic recession - that report did not discuss it further. Instead, it focused on the real risks to the video game industry, namely competitive issues, the need for talent (many in the industry recognize that focusing on education may be more important than copyright), and government support. The report also doesn't mention that Canada stands among the global leaders in digital music sales. As I noted earlier this week, according to the IFPI data, Canadians purchased 94.2 million single track downloads in 2011, making it the third largest market in the world (trailing only the U.S. and UK). The Canadian numbers represented a 39% increase in sales, far ahead of the U.S. (8% growth) and U.K. (10% growth). The data shows Canadians purchased more single track downloads than Germany or Japan, and more than double the sales in France, despite the fact that each of those countries has far larger populations. In fact, Canadian sales were larger than all the sales from Austria, Belgium, Croatia, Finland, France, Greece, Ireland, the Netherlands, Portugal, Spain, and Sweden combined. The report neglects the broader international developments in this area. If you're looking for references to the backlash against the Anti-Counterfeiting Trade Agreement by four European Parliament committees (and perhaps soon the full Parliament) you won't find it here. You also won't find references to the decision of the Dutch Parliament to reject ACTA, the announcement that Romania won't ratify it, and Switzerland's decision to place the agreement on hold. You will not find discussion of the backlash against SOPA that effectively killed the top legislative initiative of the copyright lobby earlier this year in the United States. There is no discussion of the Kenyan High Court's ruling that country's anti-counterfeiting statute is unconstitutional nor analysis of the criticism from the European Data Protection Supervisor or the United Nations Special Rapporteur on Freedom of Expression. You also will not find references to what Canada has been doing in the area. For example, the Megaupload case is discussed but there is no disclosure that Canada participated in the case using existing law. There is also little discussion of the million dollar awards that Canadian courts have issued in IP enforcement cases in recent years. The report contains virtually no discussion of Canadian companies that are implicated by counterfeiting in Canada. There is a case study of Canada Goose, but no evidence provided that it faces a serious counterfeiting problem in Canada. Further, most of the other major brands - luxury handbags and watches, brand name pharmaceuticals, movies and other copyright works - are rarely Canadian in origin. While this does not mean these products do not deserve protection (they do), the implications for Canadian companies is far less significant than the report suggests. Given the demands (discussed below) for millions in public tax dollars to fund enforcement initiatives, it is worth noting that the expenditures would largely involve Canadian tax dollars providing an enforcement subsidy to foreign companies. Best Practices and Recommended Reforms The second half of the report is devoted to "best practices" and the IP Council's recommendations for Canadian law. I combine these two sections since they feed off each other with references to supposed best practices that later surface as recommendations for Canadian reform. I would have engaged in a deeper discussion of the supposed best practices, but there are two major shortcomings. First, there are multiple references to practices that do not include a citation or identification of a particular country that has adopted the policy. For example, the report states: Both legislative and non-legislative projects view the ISPs as crucial players for their ability to block websites from the users or simply not “resolve” or complete the search query. Is this a reference to the failed SOPA proposal or is there a country that has legislated that ISPs not resolve or complete search queries? Second, there is virtually no evidence provided on the effectiveness of these measures. They are simply provided as a laundry list of extreme legislative initiatives that are designed to leave the reader with the impression that they are effective and should be matched in Canada. As for the recommended reforms, they fall into five broad baskets: 1. Introduce a Canadian SOPA SOPA may be dead in the U.S., but the IP lobby is anxious to revive it in Canada. SOPA targeted ISPs with website blocking as well as measures focused on payment intermediaries and online advertising networks. In addition to the quote above that even targets resolving search queries, the report states: The existence of remedies that include blocking orders, domain seizure and contributory liability are useful tools to encourage the cooperation of intermediaries who do not wish to be involved in the illicit activity. It adds that: positive relationships between rights holders and these intermediaries, including online payment processors, search engines, Internet service providers, online advertisers, online retailers, web auction sites, web hosting providers, domain name system (DNS) registries and social media platforms, can provide the basis for cooperation in the prevention of counterfeit distribution. This relationship requires the support of government. To develop these remedies and relationships, the report features three recommendations:
2. ACTA Implementation Despite the fact that ACTA has become widely discredited and is on the verge of being rejected by the European Parliament, the report recommends major changes under Canadian law in order to comply with the agreement: This agreement introduces numerous provisions that will require amendments to Canadian law, including provisions which require the introduction of ex officio powers for border officials in order for this country to keep up with international best practices. While ACTA raises numerous concerns (discussed in my report for the European Parliament's INTA Committee), many provisions are optional rather than mandatory. The IP lobby report is demanding changes that extend beyond those required by ACTA. 3. New Search Powers Without Court Oversight One of the most disturbing aspects of the report is its insistence on a massive expansion of search powers without court oversight. The Canadian Chamber of Commerce has argued for improving efficiencies at the border, yet now it wants to slow things down by increasing inspections, including small packages containing individual purchases. For example, the report expresses concern that Canadians can acquire counterfeit products through small shipments. It notes: Mechanisms to address online infringement and the shipment of small quantities of counterfeit goods continues to be a problem for customs officials. The IP lobby therefore wants new provisions to increase powers to conduct border searches of goods and intercepting small packages without a court order. Proposed reforms include:
4. The Criminalization of Intellectual Property The report calls for multiple legislative reforms that would add new criminal provisions to Canada's intellectual property laws. These include:
5. Massive Increase in Public Spending Creating an IP Enforcement Subsidy The report has several recommendations that would require the government to spend millions of dollars enforcing private rights. The criminalization of intellectual property discussed above is designed to increase public enforcement of private rights. Unlike the current system, which typically requires rights holders to assert their rights through civil litigation (an approach that has recently yielded million dollar awards), the move toward criminal provisions would require government prosecutors to act on behalf on rights holders. This represents a huge enforcement subsidy. Moreover, the report recommends:
Comments (46)
zb
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... ok what a bunch of crap. As far as the website blocking goes why the heck should we all be punished for one(or many)person actions. its all crap and shouldn't be token seriously. plus you'd think they learn from sopa's defeat and acta slowing being discreidted. but i guess not. |
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... Did anyone actually think that they would stop after getting C-11 passed? C-11 is just their feet in the door, the worst is yet to come and I'm sure Harperco is willing to go every step of the way to please them. Expect Canada to be on the 301 priority watch list next year too because C-11 doesn't "go far enough." |
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Why are we pandering to the US? I'd really like to understand why the Canadian government and Harper and his cronies insist on pandering to the US? Is it just to curry favour for energy deals? There is nothing in this for, you know, serving the Canadian public. A recent report showed Canadians are the heaviest legit digital music buyers. Again proving we are not a piracy haven. The US is build an IP wall (this is more than movies/music this is patents and trademarks,etc) around itself and its closest bullied allies. The rest of the world is freeing itself of the US model and innovating. Canadians need to decide if their future is with the US or the rest of the world. |
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I wonder... ...how the industry would be like had they simply used a fraction of their effort that they have put towards counteracting piracy towards actually innovating and changing their business models. |
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... Excellent news! If our part of the blame has fallen from $30 billion to $5 billion without SOPA style laws, then we don't need to change. Just trying to think like these twits ;) |
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Running scared, pushing hard ... The copyright extremist camp is running scared as almost all of their latest escapades have failed or backfired. Instead of willing to operate in good faith or move in the direction of the market, they are apparently making every attempt to push back and down harder than ever. What is a definition of insane ... Trying to do the same thing over and over expecting the results to be different? Good luck with that. |
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This is mad... What are they going to do next. Arrest people for 'not' buying the most popular of media? When are the sheep going to wake up, someone tell me please. I thought we lived in a free county, I guess we don't. |
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It might be cheaper... ...to just give the cash directly to the copyright extremists rather than spending it on enforcement. |
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... This strikes me as a an almost kamikaze barrage, and I can't seriously think they expect all of these to pass, but their agenda may be that by bringing up so many hot issues at the same time, they may hope that it will not be possible for any criticisms to fully address them all before some get to their final reading, and some of them may get through it all unscathed. |
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Be careful what you wish for I *almost* hope the government just decides to give them all they're asking for. The backlash would be so great that we'd probably end up electing a government on a pledge to scrap copyright altogether! |
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Overreach by 100% to get your goal Very old strategy. You want 100, you ask for 200. Other guys go what?! 50! You go: well, 150. other guy: 75. You: no, 125. Other guy; 100 final offer. You: wellllllll OK then. This haggling happens standard on markets in the "less developed" world. When the tourism just started (say 70s) and the local would go '200!' and the tourist would pop down the 200 (in dollars still a bargain) their eyes would go round and think you are crazy for not haggling. This is exactly what is going on now. Except we're being sold something we either already have, or do not want in the first place. There should be no haggling on this, just a solid "SCR*W YOU!" and do the exact opposite: copyright to 10-20 years *after publication*, copyright lessened in scope so it does not encompass private not-for-profit copying (i.e. it's not "an exception" or a "fair use" - it just doesn't apply at all). The only way to make this happen is with the Greens or the Pirate Party, and you know with the first-past-the-post electoral system, chances are near zero. |
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??? All this crap talk now but we haven't even passed C-11 yet, what in the hell is happening with that???? Is Parliament going on summer break soon, is C-11 passing before or after? no answers yet we won't forgot if that's there plan. |
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At least they can't have my left nut I had to use that to pay royalties for my birthday song. |
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Go pound sand If all this crap passes I am hoping to sue all those bastards. Criticize my choice in music but I bought the Guess Who's Running across Canada CD and I played it until it was pretty much worn out so I went to go buy a new one, well guess what it's no longer available and this was after just a year of it coming out. So the only way to get it again was to download it off the net. So until every piece of music is available for purchase at anytime, they can all go pound sand |
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I'm just wondering... How would Canadians react to those provisions and the possible backlash against it. If laws like that were ever introduced into parliament, I would imagine that they would gain pubic awareness (on the news and the internet), lots of criticism against provisions, and eventually lots of pubic protests similar to the ones against SOPA and ACTA. (In fact I'm already seeing some negative press against the provisions on the internet) Personally, I'm really concerned and disturbed about the IP Lobby's demands, but I have a feeling that there is a good chance that these provisions might not be made into law. The Conservative Government had rejected similar demands (for changes to bill c-11) made by various lobbyists earlier this year. However, Canadians should be made aware about the potential threats made to our freedom and privacy, and let the government know that we will not tolerate it! (through emails, letters, tweets, and even public protests if we have to) We should allow our voice to be heard, before it is too late. I am confident that we have potential to kill this,(just like SOPA, PIPA, ACTA and even bill c-61 back in 2008) if we are willing to not go down without a fight. If nothing was done about SOPA, ACTA, etc. it would be very likely that these laws would pass. |
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... I'm getting the distinct impression here that the Chamber is NOT acting on behalf of the majority of its members. The digital locks provisions we have now will see a huge increase in IT overhead for small to medium sized businesses, and leave many of them currently vulnerable to litigation due to fair use rights being hindered when one breaks a digital lock. I've tried to get the Chamber on record on this. So far they haven't responded: http://jkoblovsky.wordpress.com/2012/05/31/smes-to-see-at-least-a-75-increase-in-it-on-copyright/ Wondering if I can get you for an interveiw Geist for my up and coming podcast to talk about the costs of the digital lock provisions to SME's. |
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... Sorry for the above, meant to put the Cost to Small and Medium Sized Businesses in the title not the name..lol TGIF Jason |
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The Programmer This week there was IPV6 day, the Flame Virus and now these 'Laws' Cryto everywhere all the time, over IPV6 and then all the overhead of these laws? And then some bozo from Gartner is going to stir the users up that IT does not respond to frivolous user needs like social networking and tablets. And the Controller is going to wonder where all this money is going. And the Boss is going to wonder what IT is working on, when they should have been deploying software to slay the competition. Fine Harper. Find Toews. Just throw that in my inbox. |
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@Some Guy CONS did reject all that in C-11 but then came out with Bill C-30 which would be just as bad as the same stuff they rejected. They could see everything we do and take down websites. |
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Conflation They're conflating issues, like Vic Towes equivocation argument for C-30. Counterfeit medications aren't the same as MP3s. Creating "organized crime, serious illness and death" (Chris Gray, cgray@chamber.ca) is already criminal without "adoption of the proper legislation". Of course, when their organization's name includes false equivalence (Intellectual Property -- copyright is trademark is patent is property is a right), bad argument is expected. |
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... All standing politicians in every party should be pissed on, in public, if this bill ever gets passed. I would love to see who padded their offshore bank accounts and who gets a Christmas card. Will the politicos learn anything when the shit hits the fan and citizens go wild in the streets? I doubt it because they will be surrounded by heavy security and their weaponry just like Syria. |
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I can see it now... The death of net neutrality. A tiered system to pick your favourite "unfringing" sites you may have access to. Youtube, if not inaccessible, will give us the pleasure of watching teenagers ranting over unimportant pop culture things, and what fashions and accessories they prefer. And all for the low, low price of...$60/mo The big corps have their way, and our freedoms on the internet will be going the way of the dodo. ISP's watching our every page visit and keystroke. Oh yeah, it just keeps getting better and better. lol |
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@Chris Brand I agree. If such provisions were made into law, I would imagine that there would be a huge backlash from the general public. The demands that the IP lobbyists want not only affect people who download movies and music and socialize on Facebook, but almost everyone in Canada. It would be interesting to see what kind of reaction the people would have if they suddenly found that the rights the once (and should)have are suddenly taken away. I know for a fact that most people would not just sit down and accept it. |
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why harper caters to US So they will give him money. Just like Mulrone. Conservatives sell out period. it makes me sick. |
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... @JDulle You'd be surprised at how many people are unaware of this horrible bill. Many times I'd posted stories from here to my FB profile and had never gotten a comment. I even posted last night how it would go beyond just punishing online infringers. I also described the digital lock rules, and how format shifting would not be permitted if that particular media had a digital lock on it. No response. But hey, I know some family members who voted Con. lol Some people may be too busy with their lives or really haven't been paying attention to how this bill may effect them. A lot of damage can be done in four years of Conservative rule. Anyone who can afford not to feel the pinch should do just fine. Anyone, even to upper middle class who voted Con should be kicking themselves after their four year term is up. |
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@KL You make a good point, a lot of people are unaware of what is going on with the Canadian government. I really want to do something that would gain public awareness with these terrible bills and speak out against them.(before they pass). If these bill were ever to pass, a lot of people would notice (mainly if they found out that their favorite website has been blocked) and there would be an huge uproar, and that would be when the public would finally be aware of the new copyright laws and react negatively (I don't really know what would actually happen if they do pass, it is just my prediction) If you have any suggestions on how to get my voice heard against these bills (to the public and to the parliament), I would be happy to hear out it. |
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... @JDulle Any social site like Twitter would be a good place to start. Stop spying.ca is a place where you can send your MP a letter, showing your concern over Bill C-30 (online surveillance bill) My Guess is a lot of people who voted Con are naive enough to think that the Conservative party would never try to take away their freedoms and rights. They are in for a rude awakening if not enough people take a stand against Bills C-11 and C-30. Still not all, but a lot of Bill C-11 is bad, especially where it concerns the digital lock rules, and letting the big US movie and music companies sue Canadians. That's just going too far. |
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... I guess there is no other problems in Canada beside the IP bullshit. No other problem to be solved by government. That good news for all of us! |
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... I've read the paper, but didn't see or understand. Canadian business losing X million CADs per year. But I didn't see cost of potentially new law enforcement. How much would it cost US to pay for that? |
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@KL I couldn't agree more with you (regarding those who voted Conservative) Maybe in four years(during the next election) people will finally smarten up and vote for another party. Sad thing is, I wish we can do that sooner, and not have to wait four years. |
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... @JDulle Everyone ha the right to vote for whom they wanted. The small percentage of people who got out to vote, got their way. Or Did they? We'll see. Don't forget the possibility of election fraud. If the Conservatives are guilty of it, I hope they nail them prior to C-11 and C-30 are passed! |
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Interneter "You're either with us or with the Child Pornographers" - OMG - AMAZING! - Jed Clampett and the good old boys are running the CDN show: "A recent USA study connecting political views and intelligence has shown that the mean adolescent intelligence of young adults who identify themselves as "very liberal" is 106.4, while that of those who identify themselves as "very conservative" is 94.8. Two other studies conducted in the UK reached similar conclusions." https://en.wikipedia.org/wiki/Intelligence_quotient Companies know how to play to these hillbillies weaknesses. |
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@KL I'm well aware that people get to vote for whatever party they wanted. I just wonder why so many people would vote for Conservative, even though we all know what a lousy job they are already doing (before the election) By the way, what is election fraud anyway? |
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... @JDulle This article should give you an idea of what vote fraud is. http://www.vancouverobserver.com/world/canada/2012/02/27/robogate-election-scandal-11-robo-call-ridings-linked-conservatives-11-seat You and I think the Conservatives did a lousy job with their minority govt, prior to getting their majority. I know people who actually thought they were doing a good job. Although, the opposition parties were able to keep the Cons from doing any real damage at the time. Once the Cons won the last election, I knew what was going to happen. Taking from the poor to give to the rich. The opposite of Robin Hood. lol. Some people are real bull headed, and it's black and white with them. No grey area. My best friend said he voted Con because Harper's a family man and religious. lol Any my friend isn't even close to being wealthy. He may have to learn the hard way. I was on the Sportsnet forums the other day. One guy posted he would never vote NDP simply because of Bob Rae, who was the Premier of Ontario, back in the late 80's. That's over 22 years ago, for Pete's sake! I also have read, and it indicates a fear from some people who voted Con, that they feared an NDP federal government, worrying they'd put all the budget money into social programs. I doubt the NDP party would be that stupid. Believe it or not, the NDP run Provincial Provinces in the past, had perfectly balanced budgets out west, from what I'd heard. |
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... they vote con because they believe in just world theory, that only bad things happen to bad people and good to good people, and everyone who isnt doing as well as they are just aren't working hard enough. this theory ignores all the special advantages they enjoy by not being on the receiving end of institutional racism (or any other reason someone might not get treated fairly), instead all problems are caused by the poor, them and and their bleeding heart advocates are all just lazy whiners who want a handout.. from the paychecks of the good people. this worldview doesnt benefit them in anyway, as they now have to work even harder for less and less money as the social policies they voted against were actualyl benefitting them... the theory is being played to to get them to vote against their own best interest. that's what vic toews was trying to do when he said that.. stupid thing about his stupid bill. maybe it backfired against him. |
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love spell LOVE SPELL This powerful White magic love spell is tailored to bring your lover back in your arms permanently and with no delay. I use the best spell casting techniques to make your lover come home. This spell is customized to your situation and deals specifically with the barriers that have risen between you and your ex-partner. One by one, all obstacles will be removed until your lover realizes that leaving you was a mistake and desire nothiyou are in need of help you can contact dr.kokotemple on is private mail dr.kokotemple@gmail.com Or cell number +234810885572 |
We want to enhance competition and investment in this country, and this is why we adopted this policy back in 2008 for the AWS spectrum. Let me say that the price went down by an average of 11% since then, and we will continue this way with the 700 megahertz spectrum. We launched consultation with the industry to make sure that we enhance competition and provide better choice and better rates for our consumers.
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