Clement on Copyright: A Made-in-Canada Approach

In the immediate aftermath of yesterday's Speech from the Throne, some copyright watchers claimed that it foreshadowed the return of a Canadian DMCA, pointing to language that promises to "strengthen laws governing intellectual property and copyright."  While the return of Bill C-61 is a possibility, comments from Industry Minister Tony Clement immediately afterward suggest that he is not a mirror image of his predecessor Jim Prentice. 

Clement has spoken frequently on the need for forward-looking legislation and launched a major copyright consultation effort last summer.  Yesterday, he was asked specifically about copyright and U.S. claims that Canada is a copyright outlaw on CTV's Power Play.  His response:

I've been pretty clear to the Americans and in my public statements that we are moving ahead with copyright reform.  The key is, from the American perspective, they want us to be part of WIPO, which is an international treaty on protecting intellectual property.  We don't have a problem with that, but we're going to do it in a made-in-Canada way.  We're not just going to take what the Americans are doing or what the Europeans are doing.  We are going to fit it to the Canadian context and I think that is the right thing to do.

Tom Clark then asks – "so are we joining WIPO?" and Clement says that Canada will be consistent with WIPO.  Note that Clement was also asked specifically about a digital economy strategy.  After noting that Canada is "fair to middling" in international ranks on the digital economy, he pointed to three key areas.  First, the need for a legislative agenda that includes passing the Electronic Commerce Protection Act (the anti-spam bill), introducing copyright reform, and updating Canadian privacy laws.  Second, investing in broadband and networks.  Third, helping spur business adoption of technology.


  1. Andrew Butash says:

    I’m cautiously optimistic…
    Clement’s comments thus far have been encouraging; he’s a least saying the right things when he’s asked in public. 😛 Behind closed doors, who knows what’s going on, but I’ll remain cautiously optimistic until the final bill is unveiled. Now if we can just get some damn answers about ACTA…

  2. RE:Andrew Butash
    I am also cautiously optimistic. At the same time, it is nearly impossible to trust the government, not after the further compromising of its already compromised credibility.

  3. @Michael Geist
    Can you get a copy of his interview thrown up here from CBC’s Politics yesterday? The tone, seemed to be quite different when speaking about a digital strategy, and copyright.

  4. @Michael Geist
    I said: “Can you get a copy of his interview thrown up here from CBC’s Politics yesterday?” sorry meant to say:

    Can you get a copy of his interview from CBC’s Politics yesterday and throw it up here?

  5. Great.. More Bad News..
    Needless to say I am concerned.. Why don’t we just leave the laws the way they are..

  6. They think that really in order to get this through, they need the blessing of Geist here. That’s a good thing a step in the right direction for sure, but Geist is not the be all and end all of public opinion on this. A lot of his followers have very different views on his take on file sharing with notice to notice, DRM protections which can not be enforced. We can make the rule of law balanced which is Geists main goal here, but the law itself will still be largely irrelevant without enforcement. So question becomes, if we look to be not monetizing the networks, what will Canadians have to put up with in respect to enforcement, and how much will it cost?

    From CBC’s Politics Interview yesterday Clement stated: “Users need to know what the rules are..” I for one would love clarification of this statement.

  7. Devil's Advocate says:

    In correcting one guffaw, you created another, LOL. 🙂

  8. @Devil’s Advocate
    lol..I need more coffee 😉

  9. Clement on Power & Politics Clip

    Here is the clip of Clement on CBC’s Power & Politics from March 3, 2010.

  10. Campbell's Croney says:

    Copyright: A Made-in-BC Approach
    BC Liberals – Share the Spirit Photo Contest

    “By submitting your images, you are hereby agreeing that all entries and reproduction rights become the property of the BC Liberal Party. Artwork may need to be modified to meet the needs of future production.”

    Authorized By Jim Pipe, Financial Agent BC Liberal Party.
    Tel: 604.606.6000, 1.800.567.2257

  11. @FC
    Thanks for that FC!

    Correction on statement made when asked about copyright “Making sure users know what the rule of the game is.” There are definitely user restrictions, and penalties on the way. That will cost money. The more economically sound policy on this would be to monetize the networks in my view.

  12. Very little reporting
    A little OT but searching through and reveals nothing for news related to ACTA and only a few articles on the network.

  13. Well, as most of us are cautiously optimistic over his statements, actions still speaks louder so we’ll have to wait and see what will come down to. At least Van Loathe isn’t running the Lawful Access bill anymore so that too can altered at some point to benefit both sides I cautiously hoped. The ACTA, or I would like to call it the “Anti-Consumer Trade Agreement”, is going to be a huge nuisance to these new changes domestically though.

  14. Parrots Galore says:

    Ah. Another “made in Canada” crock of….

  15. Jack Enjill says:

    This backroom trickery that Mr. Geist has uncovered is so insidious that the established mainstream media outlets have for some time, at great cost to their credibility, ignored this scary and dangerous attempt by our elected officials to circumvent our Democracy.

    Long live the fair use principles our for-bearers worked so hard to make law. Don’t let these shadowy, psychopathic corporations take it away from us.

  16. Anobe, I wouldn’t expect Vic Toews to provide a more balanced approach to Lawful Access. He more or less conforms to the same way of thinking as Van Loan and Nicholson on law enforcement issues.

  17. steps
    Not bad but the first step should “fighting off outside attempts to stifle Canada’s digital economy”

  18. name change needed says:

    www to ccc
    Clement says first protect commerce, second expand broadband, third get more business on the web. Anyone else notice a theme? WWW is about to become CCC (CommerceComerceCommerce), how is this good for Canadians. DRM through the back door and up the laundry chute.

  19. Laurel L. Russwurm says:

    Made in Canada Solution: Following the American Lead
    If improving Canadian commerce is the point of the digital agenda, obviously the very best plan would be to follow the American lead.

    I’m not saying we should follow the current American agenda (ACTA is bad) but let us not forget how the Americans managed to establish their robust publishing industry in the 19th century: by publishing pirated books of best selling authors (Charles Dickens, the J.K. Rowling of the day, springs to mind).

    After all, Canada is a sovereign nation. We get to make our own laws.

    Does anyone else find it disturbing that the Canadian “news media” still doesn’t seem to even be aware of A.C.T.A.? So long as Canada is participating in secret copyright treaties I take everything our government says with a grain of salt.

  20. Unachievable goal
    “Users need to know what the rules are..”
    Does this mean that you will right a copyright law that is comprehendable by the average, high-school educated Canadian citizen?
    Or that you will offer your interpretation as the only one?

  21. I wouldn’t say I’m optimistic, rather hopeful. We had a copyright consultation, but law needs to reflect societies views. We’ve heard the “made in Canada” speech before on copyright. I think the danger here, and from the tone of Clements statements on CBC, is making law that is irrelevant and unenforceable. Copyright in order to be relevant needs to be built into the networks in my view (by monetizing them), consumers shouldn’t be punished for following the marketplace. To signal user restrictions and deterrence of the use of that marketplace undermines the efforts of Government to ensure economic growth in the digital economy and towards innovation that has already occurred in that marketplace. Worse off it diminishes the respect for law.

  22. @Jason K
    What are you talking about monetizing the networks? The internet is already monetized.

  23. @crade
    Not to the extent it should be. Back a few decades ago the music industry set out to destroy radio. They took up arms against radio because it was providing “free music”. As time went by, this industry couldn’t survive without radio. The same sort of thing is going on here. Basically file sharing is providing the equivalent exposure for artistic talent but they are not getting paid for it. It’s virtually the same debate. Snuff out file sharing, and you basically kill a major source of exposure for artistic talent.

    The issue is with respect to funding productions. Traditionally copyright serves as a “loan” towards artistic talent. Labels fund productions, on the premise of making that money up from copyrights on physical media. This business model needs to change. Money can still be made to fill up that pool to fund artistic productions, but not from “sales”. There are a number of proposals on the table to fill in those gaps, but Geist’s proposal of Notice to Notice is not one of them. In fact Michael Geist is on record stating that he thinks people should not be using the P2P networks. He doesn’t quite fully understand the economics of this debate, only the law aspect as he see’s it as an academic. Law must be balanced, but you really can’t end up with a balanced approach to law when the debate focuses on market redirection and deterrence. Deterrence such as notice to notice do not work (which is proven and what Geist has called for) which is why some in industry is calling for a 3 strikes proposal.

  24. @crade
    Moreover in this case what you end up with if we end up with market redirection and deterrence is law that basically is useless because it doesn’t reflect with the changes in the marketplace, nor take in account innovation and companies that have already adapted over the past 10 years. There could be a huge economic cost to that, and to Geists Notice to Notice approach, or any deterrance that puts consumers on the handle, and discourages people from participating in the innovation that has already taken place and industry is currently adapting to.

    Basically people will keep sharing media online regardless, and if deterrence’s and penalties are set in place in law, this would also fuel rebellion and retaliation in the marketplace (the war between consumers and creative talent will continure) a lot of these industries can not afford, because the consumer has chosen they want to do with their media, and share it with friends and social networks, and they will find ways to do this regardless of law. Cold hard fact have proven this, 10 years in the making and Geist has posted up these reports over the years on this blog!

    In order to usher in innovation we need not to be looking towards Geists principles with balanced law, we need to make law that will be realistic towards today’s marketplace and the expectations of consumers. Legislation and law need to be respected, and enforceable. Society in general has already chosen that path, not Geist!

    Over the past 10 years we’ve seen copyright policies that have become largely irrelevant to society and the marketplace, and those who have implemented these policies are in deep economic trouble right now. The last thing we need to do is listen to those influences.

  25. @crade
    If we follow Giest’s Fair Copyright Principles, the only thing government can really do is set up deterrence’s. I.E. penalties on consumers no matter how small who are currently participating in the marketplace. These penalties will be largely unenforceable leaving a false sense of security in industry that their old style rights will be protected, which comes at a cost economically on several fronts for industry. In order to enforce these policies of fair copyright through law which Geist has put forth, we would be looking at very large and deep changes to our constitutional freedoms.

    We also can’t impose a set of controls on society that will allow for this type of enforcement. Society has already rejected it. The only other option in this debate is monetization, and there are several ways this has presented itself.

  26. @crade
    I’m not against Geist in anyway. I think he see’s this as purely a Law issue, rather than looking at the scope of both law and economic policies. Looking at this from a law perspective, yes you want any law to balance the rights of all parties. In this current case technological innovation has changed those rights to a certain party in certain ways, and made those rights irrelevant to the marketplace. Putting forth law based on those obsolete rights, doesn’t make any sense as Geist is a large supporter of. We need to rewrite those rights to align with consumer, and societies expectations, and not base them on a system of control that society has largely rejected in the digital revolution. We need to adapt them to this so that they are relevant to what’s taking place on the ground, rather than what those parties want the market to do in order for them to be sustainable.

    Monetization is really the only way of doing this. This year the digital ad market will be maturing, and in the years to come that copyright pool I spoke of earlier will be in large part making substantial profits. Yet they will always be bitching about P2P and copyright because it’s their polarized view that P2P is evil! I think at the end of 2010 these companies should be subjected to a public audit.

    Granted there are other industries involved. The software industry will be moving towards server side based application online or “cloud computing” You will have to log into a site to access your apps, and very little will be stored on your computer at home. Largely reducing the file sharing on applications.

    The music industry is seeing area’s of huge growth outside of traditional sales in part because of file sharing. Those area’s stand to decrease substantially if the market and consumers get fed up and basically log off the net due to the amount of harassment on the copyright issues. We need to look at the immediate issue of funding our artistic talents productions, and I recommend to put in place something like the SAC proposal for the music industry that is limited in time and scope. Again those receiving funding from this copyright pool should be subjected to a public audit at the end of 2010.

    The movie and TV industry, well one needs to ask why this hasn’t happened yet (view parts 1 – 3 in this presentation)?

  27. @crade
    I don’t even think Geist let alone Clement knows the negative impact a consumer deterrence might have on those that have already innovated, nor the full scope of the economic impact the markets are showing P2P has had on each industry. It’s quite clearly visiable in the music industry. The money has shifted, and if deterrences work on P2P, than we could be killing off a lot of jobs in that industry, more than what P2P has been blamed for over the past 10 years. As Knof once said to the recording industry, becareful on what you wish for. Same applies here. We need monetization in order to look towards the future and fostering innovation!!!!

  28. pat donovan says:

    you LISTEN to what they say?
    I’d reccomend watching what they do… THEN it’s pitchforks and torches time.

    I except the digital eco to get big momma s’mothered, with reprecussions all the way thru ANYTHING copyright, trademarked or patented.


  29. All people are fallible.
    Ooh cant wait to hear the same old tiring rhetoric “made in canada approach” “win-win approach”. Same script, same narrative, new minister.

  30. Drew Wilson says:

    I’m inclined to agree with Money. Remember when the Conservatives stood up in parliament when being asked to explain why they made the DMCA and they took different elements of the bill and said over and over “made in Canada”?

    I’m personally hoping that this time, in spite of every other minister either not doing anything or simply selling us out, that this time, it’ll be different. Unfortunately, I’m really sceptical, so seeing is (the bill) is believing in my view.

  31. @Jason K
    I am not well versed in economics, but there are some problems I with with something like the SAC proposal:

    The internet is not primarily a luxury, and we are better off adding to our income tax if we need to put in some sort of tax than pretending those individuals and businesses who rely on the internet for work and communication should have to pay for everyone (yes I know they want to put in some sort of token opt-out model, that appears to rely on proper enforcement of the old model being feasible anyway, which we know it isn’t ).

    I think it would be a mistake to throw more money at the system in the state is is in right now anyway as currently most of the money is held up and goes towards efforts to hold back innovation, prevent competition and establish further control.

    It also seems pretty obvious that the labels that be would not be satisfied with any tax or levy put in, and would continue their campaign regardless if we don’t put in place the laws they want.

  32. @crade
    I’m not saying implement that SAC proposal as it stands, but implement something around those lines. Labels weren’t happy with radio either providing “free content”, they went through virutally the same debate with radio for years in the 20th century. They weren’t happy when the cassette tape came out, they weren’t happy when CDR’s came out, they weren’t happy when MP3 players came out (and for the most part still aren’t happy with MP3 players). They are not going to be happy period, because this means changing their business models. As we well know especially in the music business, those in that business don’t like change.

    In my view if they don’t like monetization, that’s income for creative talent they are turning down, in the vision of preserving and obsolete business model. A lot of them would be upset because this would “level” the paying field.

    As someone in New Media and someone that I has spoken with several of our creative talents on this issue outside of their respected labels, I can tell you that it’s extremely tough right now to get the funding needed to start innovating, or new productions.

    In order to really look any proposals that are realistic to the marketplace, you first have to understand where it’s going. The online ad market is going to be maturing over the next year, as companies are now forced to move and adapt to online media. This should have been the case a few years ago, and the reason why the ad market has not matured over the past decade is in large part due to companies refusing to adapt their business models to the digital world. Potential sponsors have in large part over the years been ready for this move to digital but very reluctant to move forward with different ad models because industry is refusing to adapt and innovate digitally. Hence the “TV TAX” with our local TV stations. That all has to do with the ad market tanking over the past 2 years, in large part because the market is shifting towards online content.

    In order to really move industry to innovate, we need the incentive to do so. That’s why many in industry want to throw up laws like DMCA etc.. They see this lack of innovation as a “rights” issue online. All you have to do is look towards other countries that have reformed copyright around industries wants right now, and the media online to see those laws have made virtually no difference in their respected digital economies, nor the value of the digital ad market on whole. If reforming copyright was the answer, than we should have seen immediate reaction in the area’s of innovation and the ad market. They should be booming right now in those respected countries, and their not. In fact the US is looking towards a “TV Tax” of their own.

  33. @crade
    In order to really get the ad market and innovation moving at a rapid pace, we need to fill up the pool that is basically dry from the refusal by industry to move forward digitally. Copyright reform alone will NOT do this. In large part I would complete agree with those who state that it’s industries fault, they should pay for their own damn mistakes, but it’s another to look at it from people like myself who are innovating digitally and in desperate need of funds to help push industry itself towards new sustainable business models. That’s where the word “Balance” comes in. Without these funds, innovation suffers. Reforming copyright on the basis of either industries wants, or Geist wants will not fix this problem we have been dealing with economically for quite some time, all of which has been blamed on copyright reform and punishing consumers for using the marketplace which is either self serving, or based on a misunderstanding of the economics of the issues we face, and of the current and future marketplace.

    Without some form monetization, the ad market will continue to mature, but at a very, very slow pace. The pools of money from the old business model will dry up, industry will bitch for “more stricter copyright reforms” and we could be in for another decade of extremely slow growth towards the new media industry, which in turn will effect Canadian jobs, and economic growth.

    These are just my personal opinions, and thoughts, but the debate needs to be tuned into the economics of the situation. There are tons of independent reports not just on innovation, but on the media industry itself. Views that support monetization were also expressed during the copyright consultation from Governments own independent sources.

  34. Short and Simple says:

    The title says it all when it comes to browsing the web. If a website must delay the actual content in order for the ad to load then bam, people are gone. Flash for example is probably the most ill-conceived delivery method period. Flash is a cpu and bandwidth hog and is so beloved by Steve Jobs it isn’t available for iphone or ipad. Meanwhile at the ad agencies “but it’s flashy and grabby just like a TV ads, lets stick it it peoples faces after a long loading time, they’ll love all the flippy menus that never work! Ooooh, and the 128bit cookies with double saved entries, that tracking info is sooo tempting!
    This is how commerce monetizes the net and ruins the browsing experience. It’s Big, in your face and wallet. Remember you can p2p on a 56k dialup, but you’ll not be you-tubing, so who’s using the bandwidth?

  35. Drew Wilson says:

    “yes I know they want to put in some sort of token opt-out model”

    Just to correct you on this point, the earlier version of the SAC proposal was to be an opt-out system. However, SAC did some consulting with the public and modified things in their proposal acordingly including changing that model to an opt-in model. SAC, by this alone, is setting the bar high on how to operate a consultation as far as the Canadian government is concerned and it’s nice to see that someone in Canada knows how to operate a consultation like that.

  36. @Jason K
    It is true there were gripes about radio and cassettes, but I’m not so sure the solution scales with the problem, and I think we are in a whole different league of stubbornness today. I wouldn’t say so much that it is “the industry”‘s fault, and they should pay for their own damn mistakes, but rather that we are talking about currently standing problems and not past mistakes and that the problems are unlikely to be solved by funneling more money to the source of the problems. I predict no tax will ever be enough to cover the enormously exaggerated loses they claim, and just as it was with the media levies, nothing would change. If on the other hand we are able to force the current leaders to the point when they must either become responsible or finish falling and be replaced with responsible leaders, both the money currently flowing into the industry and any additional funds provided at that time would have a much greater positive effect.

  37. @crade
    I absolutely agree with Drew Wilson with respect to the the SAC proposal, and also completely agree with you that industry needs to become a hell of a lot more responsible, and follow the market a hell of a lot better.

    What the SAC proposal does is put forth for the first time an economically based position on this debate. Industry has yet to provide an economically based proposal. Rights holders have turned this debate into an ideological one in terms of right and wrong, when we should really be looking at the numbers a bit more closely. To continue this type of ideological battle through public economic policies is not only unwise, but could prove quite damaging. It represents a complete ignorance of the economics in play, and serves to only set back industry and not move forward. Basically we wouldn’t be addressing the real issue at hand, and prolonging innovation at a time when not only us as a country are having severe issues with, but also almost every other developed nation is to.

    It’s no surprise that some groups have put spin on the issues and numbers for their own personal/professional gain. All I have to say is welcome to the entertainment industry, heck welcome to big business and sometimes politics. This is nothing new, that’s how business works when you have a competitive market. You try and put yourself at the competitive edge, blur the lines for your benefit, not the benifit of industry as a whole. Governments should not be taking anything seriously from this group. This is why government shouldn’t be playing into the ideological debate saying things like:

    “Making sure users know what the rule of the game is.”

    That sets us up for a policy that is ideology based, and not based on what’s going on economically. They should be listening to those who have no view on this subject (not affiliated with industry at all, and completely independent) and base their findings on economic facts.

    Either way I don’t put very much faith in Clement to understand the economics at play. He distroyed our health care in Ontario, and is now the minister in charge of industry at a time of economic turmoil. I doubt he will come out on top with copyright policy. I would be flabbergasted, stunned, and completely dismayed if he gets this right. I doubt he will be able to see past the ideology, but there’s always that 1% chance he won’t turn this into another Toronto copyright townhall!

  38. @crade
    One last thing. Prior to the last copyright bill introduced, I shared by views with MP John Mccallum who is the Liberal Finance critic. He did tell me at that time he would be sitting on the committee on the last copyright bill, and would be looking at it from an economic point of view. I don’t know if that will still be the case, so out side of Clement, there is still hope. Chance are we’ll be in another election before this gets through committee and 3rd reading anyway.

    I personally think it’s just a matter of time before we end up with some form of monetization of the P2P or darknet networks. The question is how long will it take, and what shape will industry be in when we finally realize there’s basically not much else we can do if we are to be looking at a balanced economic approach to this debate, and restoring consumer and investor confidence in industry and the marketplace rather than enraging consumers at a time of massive auto bailouts and corporate ponzi schemes. Good luck at trying to impose any penalties on consumers.

  39. @Jason K
    I personally think the industry is in the process of righting itself, and bailing out those currently in power before they are usurped or corrected would only make it take longer for them to lose their stranglehold on the industry and would help them keep the emerging companies and artists actually trying to innovate under foot. They are losing the fight for control of the industry because of a refusal to innovate, and not because of a lack of money. If we give them more money while they are still refusing to allow innovation the need to innovate is less pressing and we prolong the inevitable.

    Plus these guys attack us where it hurts with their money, giving them more money is like shooting ourselves in the foot.

    You may be right that a form of further monetization may be neccessary, but I really hope we can use it to stimulate growth in the emerging industry rather than help suppress it.

    Perhaps it would be better to try to innovate *for* them and select some sort of monetization scheme. If it is at all possible though, I think it would be better to wait for the industry to determine what works best in the new environment and then provide assistance to those already achieving some success along those lines. Who knows, it could be interesting, or it could be this same crap for another 10+ years.

  40. @crade
    I completely agree with you. In fact I wrote Clement, and Moore with respect to holding off the copyright consolation for a bit prior to it’s launching, so that it would allow industry time to adapt first, before we look at the changes needed. We’re at a time when the facts are starting to emerge that tell quite the different story economically than what Industry is calling for and the rational behind those calls seems unjust, and can serve to hurt the economics of the situation rather than making them better.

    One would expect after a global economic meltdown that we shouldn’t be looking towards any industry for advise on how to “fix” or balance law. Sometimes you have to go through the stupidity of some before the real issues emerge, but the real issues will eventually be dealt with in time. In this case, question is will the marketplace and consumers just get fed up due to the actions or penalties forthcoming, and broadband becomes less appealing, and so does participation in the marketplace at a time when consumer confidence is at it’s lowest. I guess we’ll have to see, I just hope not too much damage is done. I do have to feed my family.

  41. The last time we had a “made in Canada” solution….
    was our environmental policy, which rejected Kyoto in favour of a “yay industry” solution…

    So sorry, I don’t have any faith in Clement’s “made in Canada” stance on Copyright Reform.