Keystone XL and the Future of Bill C-11

In 2005, the then-Liberal government introduced Bill C-60, the first attempt at digital copyright reform in Canada. The bill included digital lock provisions that linked circumvention to copyright infringement (as supported today by dozens of Canadian organizations) and did not create a ban on the tools that can be used to circumvent. The approach was consistent with the WIPO Internet treaties, but left the U.S. very unhappy. 

For many years, the lead lobbyist against the C-60 approach and for a U.S. DMCA-style implementation was David Wilkins, the U.S. Ambassador to Canada during the Bush Administration. Wilkins regularly described Canadian law as the weakest in G7, lobbied successfully for anti-camcording legislation, wrote letters setting out the U.S. demands, and met with every Canadian minister on the file (his meeting with Industry Minister Bernier was chronicled in a Wikileaks cable). The U.S. pressure was ultimately successful as Bill C-61 included digital lock rules designed to satisfy their demands. While subsequent copyright bills (C-32 and C-11) do a better job of striking a balance on other copyright issues, the digital lock rules have remain unchanged because the U.S. demands have remained unchanged. 

Wilkins was back in the news this past weekend as the U.S. dealt the Canadian government a significant setback by delaying approval of Keystone XL pipeline. Wilkins, who was hired by the Canadian Association of Petroleum Producers to lobby for pipeline approval in the U.S., called the decision “politics at its worst.”

While the Wilkins comment could obviously apply equally to the digital lock rule decision in Canada, the U.S. decision could have ramifications for Bill C-11. Over the past few months, several people have suggested to me that the pipeline approval was linked to copyright reform (as in, there is no chance of a change to the digital lock rules since it is part of the price for pipeline approval).

The pipeline decision is one of several U.S. decisions that have gone against Canadian interests in recent months. Whether it is the decision to apply new border fees for Canadian travelers or the imposition of Buy American rules (which the current U.S. Ambassador implausibly claimed was good for Canada), Canada has sustained successive losses on the economic policy front with the U.S.  Indeed, reports on yesterday’s meeting between Prime Minister Harper and President Obama indicate that Canada expressed its disappointment with the recent decisions and that Canada is openly talking about diversifying its trade ties.

The question now is whether the recent U.S. developments will help thaw the frozen approach on digital locks. Government officials are clearly cognizant of the opposition – the overwhelming majority of Canadians that have commented on the bill, dozens of groups, national newspaper editorials, opposition parties, and even backbench Conservative MPs – are all supportive of a technical change to the law that would provide legal protection for digital locks but link it to copyright infringement. Canada was careful to leave that option open in the Anti-Counterfeiting Trade Agreement and it certainly works with the WIPO treaties. The announcement that Canada is prepared to join the Trans Pacific Partnership suggests it will continue to face U.S. pressure on IP rules, but the TPP is not yet set in stone.

The technical change would ease the passage of the bill from the opposition parties and send a not-so-subtle message to the U.S. about Canadian willingness to stand up for its national economic interest. Debate on Bill C-11 resumes today and the bill could head to committee within this week.


  1. Reform?
    I strongly object to the term “Copyright Reform” being used to describe Bills C-60,61,32 and 11. There is no reform, merely “modernization”. The basic tenets remain the same.

    I submit that these tenets, that applied to the Industrial age, no longer apply to the current age, and actual reform is needed. Unfortunately, it doesn’t appear as if we will be getting it any time soon. If readers have watched the WIPO talk a few posts ago, it becomes clear that it is *only the USA* that is applying the pressure; everyone else is giving in because of the greater benefit of free trade. It would also be wise for everyone to follow EPP (and its IPR chapter) very closely, as a few months back it has already been dubbed “Son of ACTA”. One result of EPP might be copyright term *extension* from 50 to 70 years, as always after the creator’s death.

  2. So we’ll have “free trade” for dairy/poultry/egg products in exchange of “free trade” for oil? The PC voters will be extremely pleased.

  3. Reform
    I think the main reform we need is a government reform as in we have old people with old mindset running a country that is living in a new age. Thus we young people do not have a voice. All I am saying is it is time for a real change in the thought process of how the government works. I think this can be done by younger people having more of a voice maybe someone to represent the youth as we are the ones that inherit this Canada that you leave us.

  4. 1.The pipeline issue is far from over, simply delayed. It is quite apparent that Obama is buying political time with this decision – since whatever decision he takes will enrage a part of this electoral base (tree huggers and unions). As soon the elections are over, this thing will be fast-tracked – the amount of jobs that it will create will simply override any ecological worries.

    2.I don’t see how the Conservatives could come back on their position on the digital locks without looking like complete idiots. They’ve stated that they weren’t influenced by outside interests and that their position concerning digital locks is perfectly logical and balanced – for them to come back on a staked position would weaken them and open them up to ridicule on a cosmic scale.

  5. …”don’t see how the Conservatives could come back on their position on the digital locks without looking like complete idiots”

    Don’t underestimate politicians. The bill has gone to committee for review, and the review could easily come back “recommending” that legal protection for circumventing digital locks needs to be linked to infringement.
    Justification for such a change would be the various groups recommending this, the public outcry, and the position of all the opposition parties. In fact, the Conservative majority would end up looking *better* if they changed the bill during review.

  6. Brandon, we all have a voice
    The problem is no one is listening.

  7. Tit for Tat
    Government should drop the DRM requirement and blame the lack of a decision on XL. If the US continues to dismiss Canadian interests they should be surprised that we have little regard for theirs.

  8. No Goal!
    It is hard to know what is exactly going on behind the curtains, but it is obvious and expected that Harper and Obama are ‘trading hockey cards’ on a geo-political scale.

    The question now is if Harper is getting a Gordie Howe or a Roberto Luongo. I am starting to get the feeling though that harper is just throwing his cards against the wall to see what he can knock down.

    The pipe line is a big deal to Canada, and may yet happen, so he may not want to sour the waters too much. On the other hand the digital locks are important to the USA and it may not hurt to show some backbone or end up being that scrawny kid who loses his cards every day.

  9. Un-Trusted Computing says:

    Need them more than they need us?
    As much as I’d like to some backbone on the copyright issue I think the Keystone XL pipeline holds a lot more clout to both sides than copyright negotiations.

    I’m going to assume these issues won’t be brought up concurrently, simply because the copyright issues in the the millions, whilst the Pipeline issue is in the hundreds of billions.

  10. Flawed Democracy
    Government today is a far cry from democracy. There are way to many examples of how government today ignores the voice of people on issues where the people should have a say in the matter.

    Just one example is party line voting. The ability for a party leader to demand all MP vote party line is a slap in the face for democracy. Elected MP are to represent their constituents. Their votes and voice should be guided by the people that brought them to parliament. Yet again and again the voices of people are muffled, blatantly ignored as party leader require party line voting. There have been many public examples where elected MP stated that they are of the opinion that their constituents ask them to vote one way, yet, they vote the opposite as to not loose their party membership.

    This is just one example, other example could be the influence of foreign powers, or how corporate powers can by elected officials voices…

    All in all, how many of today’s government decisions are really made in the best interest of the people? How many decisions are made with true consultation of the people and respect for their voices?

    I understand the reasoning for the various C-11 provisions. I even find myself somewhat supportive of the bill. However, this does not by any means diminish the fundamental flaws in thinking, the trampling of individual rights. Since this is a new piece of legislation, why not make the effort to bring something to the table that is truly balanced and addresses the concerns of all involved? C-11 fails to deliver.

  11. what?!
    You know what, I don’t want digital locks, and I don’t want the pipeline! Build the refineries here in Canada and add some jobs, then ship the finished product to the USA, don’t ship raw minerals. How pompous they are to they think they can use something that benefits them, as a bargaining chip for something that benefits them.