The Federal Accountability Act, which was passed last week by the House of Commons, has been the focal point of the Conservatives’ legislative agenda in 2006. If the Senate grants its approval in the fall, the Act will establish new limitations on lobbying activities and campaign financing. While few would object to placing limits on powerful lobby groups, recent information obtained under the Access to Information Act suggests that another form of lobbying exists that requires closer scrutiny – lobbying that is financed by the government itself.
According to government documents, last fall the Ministry of Canadian Heritage entered into a multi-year agreement with the Creators’ Rights Alliance, a national coalition of artists groups and copyright collectives with members both small (the League of Canadian Poets) and large (SOCAN and Access Copyright). The CRA has eight objectives, which notably include "to ensure that government policy and legislation recognize that copyright is fundamentally about the rights of creators" and "to ensure that international treaties and obligations to which Canada is signatory provide the strongest possible protection for the rights of creators."
The Canadian Heritage – CRA agreement, which could run until 2008 at a total cost of nearly $400,000, requires the CRA to provide the Ministry with its views on copyright in the form of comments, analysis or research papers (other deliverables include a policy conference, website communications, and a regular newsletter). In other words, in return for $125,000 annually, the contract appears to be designed primarily to enable the CRA to lobby the government on copyright reform.
The contract raises several issues. First, there is some doubt that CRA is a group that needs government funding for lobbying purposes. While several of its smaller members could undoubtedly use the support given that these associations typically lack the resources to provide ongoing representation, larger collectives such as Access Copyright and SOCAN already employ external lobbyists with millions of dollars budgeted for copyright regulatory hearings and reform.
Even if backing the CRA can be justified, the manner in which this contract was established elicits some concerns. Last summer, the contract was submitted through the Advance Contract Award Notification program, whereby the Ministry notified potential contractors that it intended to award a contract to CRA to promote the interests of Canada' s creative community. Other parties were given 15 days in early July to submit a counter-proposal. When none were submitted, Canadian Heritage was free to proceed with the contract.
The structure of the contract itself appears to have raised some eyebrows within Canadian Heritage. As the funding was being considered, an internal memo noted that the Copyright Policy Branch "would be funding an organization through this contract to provide comments on government policy. There is a concern that the Copyright Policy Branch would be setting an unwanted precedent in such matters." To address that issue, a different branch within the same Cultural Affairs department administers the contract.
Internal correspondence also reveals that the contract was designed to further the department' s own policy objectives. A senior official outlined the rationale behind the proposed contract, stating in an email that once the CRA funding was complete, "we should have streamlined, stable funding to an organization whose structure, purpose and activities suit our own policy needs."
Those activities were clearly identified in an email to Canadian Heritage from CRA’s co-chair who commented that "the job of taking on the educational sector on copyright reform is clearly a huge and major undertaking," adding that education was a "well heeled, publicly funded lobby. . .devoted to abolishing creators’ rights on the Internet."
In a fair and balanced policy making process, government must hear from all stakeholders. While well-financed lobby groups have little trouble marshaling the resources necessary to have their message heard, many smaller stakeholders frequently feel left out of the process.
The Internet has magnified the importance of this imbalance — social networking tools make it easy and inexpensive for groups of interested stakeholders to form online – yet many still struggle to convert that enthusiasm into clout in the political arena.
Given the need for the government to take all stakeholders into account, public financial support for groups that lack the resources to have their voice heard may be necessary. With plans from Canadian Heritage Minister Bev Oda and Industry Minister Maxime Bernier for consultations this year on telecommunications and broadcast regulation, privacy protection, as well as copyright reform, a transparent program that would allow groups to apply for financial assistance would enhance the policy making process and would be consistent with the Conservatives’ focus on accountability.
The Canadian Heritage – CRA contract does not meet those standards of openness and accountability. If Canada is to achieve a balanced approach on copyright matters, policy makers must offer programs whose goals are not to advance a particular policy agenda, but rather to foster policies in the interests of all 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 firstname.lastname@example.org or online at www.michaelgeist.ca.