How the U.S. Got Its Canadian Copyright Bill

My weekly technology law column (Toronto Star version, homepage version) examines the role that U.S. pressure played leading up to the introduction of Bill C-61 last week.  I argue that the bill is the result of an intense public and private campaign waged by the U.S. government to pressure Canada into following its much-criticized digital copyright model.  The U.S. pressure has intensified in recent years, particularly since there is a growing international trend toward greater copyright flexibility with countries such as Japan, New Zealand, and Israel either implementing or considering more flexible copyright standards.

The public campaign was obvious.  U.S. Ambassador to Canada David Wilkins was outspoken on the copyright issue, characterizing Canadian copyright law as the weakest in the G7 (despite the World Economic Forum ranking it ahead of the U.S.).  The U.S. Trade Representatives Office (USTR) made Canada a fixture on its Special 301 Watch list, an annual compilation of countries that the U.S. believes have sub-standard intellectual property laws.  The full list contains nearly 50 countries accounting for 4.4 billion people or approximately 70 percent of the world's population. Most prominently, last year U.S. Senators Dianne Feinstein and John Cornyn, along with California Governor Arnold Schwarzenegger, escalated the rhetoric on Canadian movie piracy, leading to legislative reform that took just three weeks to complete.

The private campaign was even more important. 

Sources say that emboldened by the successful campaign for anti-camcording legislation, U.S. officials upped the ante at the Security and Prosperity Partnership meeting in Montebello, Quebec last summer.  Canadian officials arrived ready to talk about a series of economic concerns but were quickly rebuffed by their U.S. counterparts, who indicated that progress on other issues would depend upon action on the copyright file. Those demands were echoed earlier by the USTR, which, according to documents obtained under the Access to Information Act, made veiled threats about "thickening the border" between Canada and the U.S. if Canada refused to put copyright reform on the legislative agenda.

Faced with unrelenting U.S. pressure, the newly installed Industry Minister was presented with a mandate letter that required a copyright bill that would meet U.S. approval.  The government promised copyright reform in the October 2007 Speech from the Throne and was set to follow through last December, only to pull back at the last hour in the face of mounting public concern.

In the months that followed, Prentice's next attempt to bring the copyright bill forward was stalled by internal cabinet concerns over how the bill would play out in public.  The bill was then repackaged to include the new consumer-focused provisions such as the legalization of recording television shows and the new peer-to-peer download $500 damage award.  The heart of the bill, however, remained largely unchanged since satisfying U.S. pressure remained priority number one.  Just after 11:00 a.m. last Thursday, the U.S. got its Canadian copyright bill.


  1. This just confirms the obvious – harper and the tories are OWNED and take their orders from the bushites south of the border.
    Sorry stevie harper – no 51st state here, but maybe george will still invite you to paraguay later.

  2. Horrible
    This is just horrible. Isn’t there a way for us to counter a government that obviously doesn’t work for the people?

    And worse, if Dion asks the Liberals not to vote again… this bill will go right through!

  3. Harper Govn’t is US Apologist
    This explains part of the issue. It is obvious that the Conservative government doesn’t know how to play poker.

    They threaten to thicken our borders, we say fine, the energy flowing south will be slowed by that same “border thickening”, and that response will be made along with a public disclosure of US threats to our economy.

    Canada’s government is mistaken to think that we don’t have friends in the US, that we don’t have a significant hand to play with energy.

    It seems to me that Stephen Harper and the Conservative government can’t play poker, even with a winning hand. They caved on softwood lumber, they put in useless legislation on theatre camcording, and now they propose a Copyright Bill (exclaimed as “Made in Canada”) that caters to those same US interests.

    I haven’t said this before, but I want an election. I want it now!

  4. it is obvious
    IF this bill “passes” we should monitor the government officials for sure to be infrigments; now and AFTER they will be sent home packing; but then again after huge payoffs from the american lobby they will simply retreat from private life, even taking the blame. it is standard in today’s north american politics(and not only) for politician to push its employers agenda(lobbyes of one kind of another) then inocently and willingly TAKE THE BLAME for what they have done, leave or beeing kicked out of the office, have tarnished imagine but MILLIONS in the bank account. take the recent ex-rcmp chief for example. that individual( he looks so innocently of course) recently admited that the liberal scandal and qubeeq funds “investigation” was more or less a farce to coincide with the election. you see as a canadian naturalized citizen i never understood what was soo WRONG with chretien to keep canada united and provide funds for such enterprise!? i mean how they forced him out of the office and paved the way for that paul martin, that literaly paved the way for conservatives!

    at least chretien did something “patriotic”, IF he did, something PRO-canada as whole nation and keeping its integrity. his highlight was when he told bush PLAIN and simple a firm NO WAY to contributing to the war in iraq. my view is that canada believes we can not “do” without the neighbour in the south; that was true in the past, but this days trade is relatively easy since technology has advance to a stage( and this bill is AGAINST techonology as a whole by the way). we can do VERY MUCH without the neighbour in the south; LOOK what happened to the lumber industry case, the americans have simply refused to hand over the tarifs money even if the international court has favoured for canada! it was mind blowing to me how STILL the conservatives got in the office at that EXACT time!? the guilty part here is the mainstream media. no matter how much we, the people that like to stay informed, know those things more or less, becouse the general population is too busy to dodge idiotic laws as this one prupose, or leave with the thought as “i am one person, i can not do anything”; or simply making ends meet after they have to pay so much taxes, and i do not reffer only to those from income; those hidden taxes ranging from infalted rent prices to gas, or even the blank cd media on this topic…

    i think staying INFORMED it is the way that each and every individual CAN make a diffrence and not necesarry by getting in the streats or beeing activ activist…staying inform will help each and every one of us to make sure then when time is right or when someone trying to “sneak” some draconian provision of any kind into laws you WILL be ready, simply by having and robust opinion. while informed the mother nature will MAKE YOU take the right course of action out of basic human instinct of preservation.

    travelling a lot in past years i can proudly say that canadians are generaly well better informed especially in smelling a “rat” (as this bill proves to be). however in my opinion is the APATHY that slowly eats our will for progressive change (regardless if it is a liberal or a TRUE conservative one).

    if one looks at macro economics, he will realize that the absurd EXTREME “FREE MARKET” ideas promoted only by the ELITE class south of the border had never been well received here in canada. this minority government takes away the right of the canadian citizen to POLITELY say “no thanks” to ever increasing american demands( bush administrations). i want to remind that this very administration of the “south” is the most loathed ever to be in the office by its own people.

    also the north american voting system per “riding” is wrong becouse it simply leads to real corruption and manipulation; this POLLS and surveys are nothing more then a tool to tell you that you might be wrong; it is in human nature of preservation to try be always on the “winning side”. but this “winners” are only made as such when you vote out of missdirection and fears of something that has been comunicated to you by ever evolving propagandistic means… the rulling class has always effective tools in making you self-doubt or creating unrealistic expectations as this “conservatives” did.

  5. Flexible Copyright
    Flexible copyright? What is that, like ‘military intelligence’? Copyright is either copyright or it isn’t. If it is, treat it as such. Make it enforceable. That means guess what? It can’t be broken.

    Next you’ll be espousing flexible human rights. Or flexible other rights.

    This isn’t an issue about US domination. It’s an issue about rights. If the US happens to be leading it, whatever. But the adolescent tone that everything the US does must be defied is just mindless.

  6. movie industry
    what is the aspect that bothers me the most is how much influence hollywood has on certain governments. the reason people download movies is not as much becouse it is free, but becouse they contain NO COMMERCIALS. even without those ads most of the present american feature are soaked in product promotions. so me ,as a consumer, i will be forced not to be able to fast foward this commercial breaks at my will!?!?!?! oh yes i will hear the argument of “nobody forces you to watch”. well as a matter of fact of about 5 movies i get maybe i watch one since i can smell pure consumerism crap from a mile away. but if nobody “forces” me to watch why people still call it ENTRETAINMENT industry!?!? there is a clear miss-advertaising. so in the end is not enough that i have to see everywhere i go someone making money out of my patience but now i threatened with prison for simplly burning a cd/dvd!?
    this nonsense has to stop. time to let “new blood” like indy films and upcoming artists create a REAL COMPETITION. the monopol KNOWLEDGE (intelectual property) can not and will be accepted as law, not in my lifetime.

    regarding the recent PM comment that people should not be allowed to post correspondece on internet. i want to remind those “supporters” of such “copyright infrigments” that the hold office becouse WE SENT them there. they are ressponsible to canadians as a whole and they need to be transparent. otherwise we might just call them dictators. what stephen harper is doing in his party by coordinating and GAGING its PM’s regarding media comments is compleatlly illigal under the canadian charter. he does not have monopol on their thoughts and opinions becouse HE DID NOT ELECT THEM! how can this go on and the average canadian ignore it at best!? becouse issues as such only the elite group WITHIN the parlamaint( read the party in power) has tru KNOWLEDGE of what is going on, the rest beeing missinformed or kept out of touch with political reality until it might be too late.

    i had not received email back from my liberal representative that own my riding, but if i do i will be posting it here without any fear to do so.

  7. Tactics
    A bill is now before parliament. We have have some idea of who was consulted and who was not. What tactics should be used? We should presume stone-walling on part of the government. How do we breach that wall?

    If we start with obligations stemming from Berne, TRIPS, and such international commitments, what exactly have other countries done to comply that are less like the DMCA? Rather than simply repeat our problems with C-61, can we put forth clear alternatives?

    Let Mr. Harper and Mr. Pentice explain what is wrong with Israeli and New Zealand approaches? As it is being played out in the last few days, we have the political face of the government (fronting for the senior bureaucracy and civil service at the same time: the guys who actually drafted this bill) saying it is needed, it is just, etc. and the multitudes pointing out the pain, the silliness, and the insult. Forcing the government (politicians and bureaucrats together) to show what is inadequate about a sound alternative might change the nature of the game.

  8. Feeling Cynical
    Can\’t help but to feel that this bill will pass as Liberals will stay quiet. Fact is that it\’s in Dion\’s interest for Harper to pass a law that will galvanize opposition to the latter\’s government while the Liberals reap the rewards, even after they\’ve regained power. Simply put, it will get White House off their back while forever villainizing the Conservatives in the eyes of the public. It\’s win-win situation for them… I know, it\’s a cynical thought but politically it is the most expedient of choices.

    Well, I don\’t mean to say that we should wrap ourselves in a mourning shroud just yet. Just because I feel cynical about the way this will be handled does not stop me from writing my (unfortunately) elected representative informing him that I will be voting for someone else this time. Do not forget that in this country we have more than one viable choice of party. I won\’t try proselytize the audience here to elect the NDP, the Greens, or even the Beer party, but do let the politicians know that doing nothing will have just as a negative impact on their chances of being elected as voting yes for this unfair, and unconstitutional bill.

    Furthermore, there does seem to be a lot of misconceptions about the bill; the official spin is that this is mostly about illegal downloading. Make sure you talk to your kids, your parents, your friends, and the crazy lady at the bus-stop. The more people you talk to the more the message will disseminate that this is not just about the government pursuing a handful of copyright criminals, but about the loss of personal freedoms, and relinquishing of control of our culture in the name of profit.

    Please get involved!

  9. Flexible Copyright
    The right to swing my fist ends where the other man’s nose begins. (Oliver Wendell Holmes)

  10. In bed with the elephant
    This background information illustrates the inconvenient truth that Canada needs the US more than we need them. The oil card is a bluff. Oil is a fungible product that can be purchased from anyone. A Liberal government would have been subject to the same pressures. Remember Sarmite Bulte?

    The only way Harper can get out of this bad legislation is if a public backlash develops against it to such an extent that he can say “look we tried, but it just wouldn’t fly.”
    Given how badly this file has been handled (e.g., lack of consultations, DMCA measures, etc.), it wouldn’t surprise me that Harper is trying to create this backlash.

    And that is our opportunity. We’re not there yet, but the reaction so far has been encouraging. Even conservative blogs such as the Western Standard are in on it. Keep it up.

  11. Arthur Dent says:

    Old joke…revisited
    Q: What’s long and blue and hangs between George W. Bush’s Legs?

    A: PM Harper’s tie.

  12. Such a joke
    Jim Prentice and Harper under pressure from US lobbyists? What a joke, what are the Americans going to do if Prentice or anyone else just told them to piss off? Nothing. Even with all the piracy they are still making a huge profit up here, it’s not like they’d remove all movies and cds from Canada when there’s still money to be made.

    I find it odd I’m not hearing anything about removing the levy on writable media either. With everything being oh so illegal if this bill passes, why is it not being removed?

  13. ISP\s Will Be Happy!
    Perhaps this is noted elsewhere, but it seems to me that that the big Canadian ISPs will be the winners here. If file sharing is controlled or reduced dramatically, Bell\’s current legal issues with throttling will certainly go away. Why invest in more infastructure when you let a third party\’s lobbyists (especially a foreign one) do all the dirty work for you?

    This is just another example of how existing business models are failing to to adapt to change. Bell, Telus, Rogers and the rest were glad to offer you High Speed connections, but failed to foresee the impact on their systems when people actually started to use it to it\’s full potential. The entertainment industry (besides Apple\’s iTunes store) can\’t seem to figure out just how to make money from the internet. The answer to this seems to be to pressure government\’s to enact ridiculous legislation.

    Forget about protecting artists- IT\’S ALL ABOUT THE MONEY!

  14. the newly installed Industry Minister was presented with a mandate letter that required a copyright bill that would meet U.S. approval.

    What about CANADIAN approval?

    This is scandalous.

    This is actually an anti-copyright law in the sense that there isn’t any provision that protects the consumer side of the equation (which actually now could be easily criminalized). This absence of law allows the media industry to do whatever they want with the media they sell. On the other hand consumers cannot handle anymore their property as they please. Since there isn’t any concept of “right” embedded in the copyright word anymore let’s change it in “copywrong”.

  16. Brown Lipstick
    Let’s make as much noise about this as we can and help paint Harper and the rest of his cronies with the same shade of brown lipstick he so obviously adores to wear. The words “hypocrite” and “liar” come to mind. A lot of other words follow but I’ll spare you the rant. Let’s kick these bums in the nuts and show them the door.


  17. Next up – drug advertising
    I’m very upset with this bill, but Isn’t it expected for Harper’s government to do something like this? He has been copying Bush’s campaigning & targeting method since last election. Since Bush is leaving, that’s why there is a strong push for Canada to change copyright before he leaves.

    I really don’t know how Harper will behave if Obama is in the White house.

    I’m wondering, if this was already revise, what would look like before?
    Next up, Advestise for drugs(the ones with 1 minutes description of side-effects) & our doctors get paid by drug companies instead.

  18. copyright criminal says:

    Invasion of privacy
    Do they realize that this is a big intrusion on privacy? In a civil and democratic country I should be able to do whatever I want in the privacy of my home with items I own (since I bought them). When I buy a DVD I’m not renting it I’m buying it. When I own it I can do whatever I want with it (burn it, cut it, resell it, giving it away, etc.). Most of all a should be able to watch it using any device I please. I should be able also to circumvent any lock if this doesn’t allow me to watch the DVD in a particular device (such as the region lock of a European DVD legally purchased). These activities are private activities and no healthy government should intrude.

  19. Gah..
    Last time I was in a theater was to see Kong. They had something to the tune of 20 MINUTES worth of commercials before the movie started! Then that ridiculous ad came up by the MPAA telling me “you wouldn’t steal a car, would you?”. So in effect, Its criminal to pay their overpriced 20 bucks to see a movie in the theater just as it is to download it. Prior to that, I had seen Phantom Menace in the theater and it was just abysmal. Bad script, bad acting, bad direction. And that movie as well had 15 minutes worth of commercials prior to the film ensuing (and no, I don’t mean movie previews…I mean CAR COMMERCIALS!!!)

    Never again…NEVER!

  20. Canada has highest problem with copyrigh
    How the hell does Canada have a problem ahead of say Russia? We don’t, In the G7 granted we might, (but I doubt it) because the biggest copyright infrigining country that I can think of (Russia) isn’t in it and hence why Canada is measured the worst out of the “G7” not the “G8” countries, It just makes their point sound better. But the only reason why the US is trying the Bad Canada act is because they know that we’ll do what they want, because I’m pretty sure that the other “Bad-Boy” countries like say Russia, India, or China have told the Americans that they can take their copyrights and shove it up their you know whats.

  21. Canadian Colony
    I wonder how Canadians feel about living in a country that is continually bullied by the US, over threats of thickening the border?

    I can see it now. They sit around in a room and think \”hmm… how can we get Canada to do what we want! I know, let\’s threaten to thicken the border!\”

    They use it on us all the time. Adopt sensible drug policy = thickened border. Sensible energy policy = thickend border. Sensible copyright policy = thickened border.

    One of these days we need to call their bluff. Let them thicken the border. I\’d rather be proud, independent, and temporarily poor, than an economic vassal of state that thinks by applying just a little bit of pressure, we\’ll fold each and every time. Enough already.

  22. Canada close the US border!
    I feel betrayed. Canada should have closed the US border themselves and strengthened their army. After all, US protects only their interests, Canada should do the same and Canada should count the scenario in which it has to go against US.

    I won’t even tell that being a trade partner with one country is bad for Canadian economy. Diversity is key!!!

  23. Close the border? Then what would we do with all the beef, oil, water and other such goods that we normally sell to the states at cut rates (with incentives) before we buy them back from them at greatly increased prices?

  24. Solution to the USA
    HEY i got an idea for the US ambASSador, instead a whinign aobut every other country in the world how about you give your OWN PEOPLE HEALTH CARE.

    LETS revist free trade and give the OIL control back to canada, that will scare the crap out of you, when we can seel all that oil to china instead of the USA.

    Maybe china pays its bills more.
    Perhaps we should also make production for beef here so we can market it elsewhere without your help.
    Perhaps we can sell the softwood lumber to china and other countries and if the USA wants to keep it up the trade level in about 15 years will be so low that when you mouth off we can just PUT up a 100 foot tall wall and say

  25. weak kneed
    The idea of free trade is a joke. When the USA feels like breaking the agreement, our government falls to it’s knees, we3 need strength in Ottawa, not some weak kneed government.

    Let them break their agreements, we have products many in the world want, and we can market them to these countries, then let the USA try to come back on their knees begging for our resources,

    Chine, India come to mind as countries who’s needs are going and will welcome our goods without the issues this USA trade has,..

    Get on the ground Harper, and look to OUR future, not the USA’s

  26. Isolated Military State -> Next South Ex
    Seems to me that the US doesn’t know how to be a team player. “Lets close the Mexico boarder! We don’t need them for products.” “Let’s attack unstable middle-eastern countries and stick our noses in their business.” “Let’s thicken the northern boarder too!” I’m apt to say “Sure, that’s fine. Canada is extremely self sufficient. Shove off you bag of gaggling idiots!”

    Think rationally, if the US shuts its north boarder and we play the game (Stop giving them things: Oil, Beef, Lumber, Attention), They’ll be alone. A closed state ruled by tyrannical military B.S.

    I’m from a military family, my grandfather was in it, my dad, his brothers and sisters, my cousins- If they want to play hard ball, we can play hard ball too. If they want to flex and show off to get us to play on their team, we’ll be right there, waiting to take that smug look off their faces; and so would every other country. Canada has Many more friends than the US, and if it came down to a good old brawl, we would surely win.

  27. Anonymous says:

    As an annoyed consumer of movies and music I can say without a doubt that these laws will only further my dismay at purchasing titles.
    I’ve owned every format of some music titles. From eight-track tapes and vinyl records right on up to MP3’s. I still have cases of music that I can only listen to on outdated players. I can only do that as long as I can keep these players working or get my hands on parts to repair them.
    I’ve paid for some album titles four times already because they keep changing the devices I need to listen or watch them!
    Enough is enough.

  28. Who nee\ds TV?
    Personally, I don’t actually listen to much music, nor do I really care for movies. Perhaps a movie will come out that I might like and so I’ll go see it in a theater but otherwise… No TV watching because I feel it’s an absolute waste of time, (unless it’s something interesting on Discovery) it’s always something boring that’s on all of the other 23 hours of the day.

    I don’t get why they scream about all of this piracy because they fail to achieve a level of entertainment I’ll actually spend time and money on. I don’t pay for things I don’t want or like, so is it assumed I’m some kind of criminal right off the bat?

  29. Downloading Music
    I download music, mostly, because I’m not a big movie fan (too many ads!!!) and I really like music. Hopefully I don’t sound spoiled here, but stay with me. I have 2 computers, an ipod, my cell phone, and a CD player in my room – everything plays music. Who the @#$% does this government think they are, telling me I can’t take a song, put in on both computers, my ipod, my phone, and burning it to a CD so I can listen to it on my CD player?!?! It’s rediculous!

    Not only is it rediculous, it is apparently illegal?! This is absurd. This bill is just another way of taking away our freedoms, bit by bit. If I want to download a song, it’s probably because these already rich artists are charging way too much for a CD! This does not require government interference…

    I’m reminded oddly of Nixon. Government off our backs… HAH!

  30. Gutless Government
    Just another example of the Gutless Government we have cowing to the US every order this is nothing new the US have been telling us what to do for 100 years. Can you say Avro Arrow boys and Girls.
    When will we get leaders that have Balls not ones sucking on the US balls.

  31. Quit Buying
    There is a way quit buying their stuff boycott music and movie purchases hit them where it hurts them their wallets. Their just greedy anyways and are selling you the same stuff over and over again in different format.
    We have greater power if we band together and just say fuck them!

  32. Bee
    Written by Carter on 2008-06-16 09:04:13

    Flexible copyright? What is that, like ‘military intelligence’? Copyright is either copyright or it isn’t.

    “Flexible”; it’s like a flexible fixed election date!

  33. Let them copyright everything
    In fact let’s make it so intrusive that no one buys copyright material. That way we can finally get to the end of this where artists can produce, distribute and profit from their individual works and companies like Sony will be out of business and the MPAA and RIAA will have nothing left to protect. It’s where the internet and public domain is going anyways. Finally, I won’t have to hear the same 10 songs on the radio over and over.