p2pnet - rss feed: Michael Geist to Jim Prentice
CBC’s Search Engine received hundreds of questions for Industry Minister Jim Prentice on the forthcoming copyright bill, yet the Minister advised the program yesterday that he would not take any questions until the bill is introduced. Prentice’s unwillingness to respond to Canadians’ concerns speaks volumes, but on the assumption that he will eventually defend his Canadian DMCA, I would ask the following ten questions:
1. After you unveiled the government’s approach to the release of new spectrum, you indicated that you granted a full hour to each company involved in the issue to state their case. It has also been reported that you have met with U.S. Ambassador David Wilkins on the copyright issue. Would you please advise which other stakeholders you’ve met with on copyright reform? Have you personally met with consumer groups, privacy commissioners, education groups, researchers, and creator groups such as the Canadian Music Creators Coalition and Appropriation Art, to hear their concerns?
2. The public was last consulted on digital copyright reform more than six years ago in 2001. Given the dramatic change since that time, why has the government not consulted the public on this issue before introducing major copyright reforms? Given the lack of consultation, will the government commit to full committee hearings that grants everyone who wants to appear the right to do so?
3. While the government is clearly committed to implementing the WIPO Internet treaties, those treaties feature considerable flexibility. Leaving aside the debate over whether the treaties are good policy for Canada, there is no debating that Canada need not adopt a maximalist, U.S.-style DMCA in order to be compliant with the treaties. Given that flexibility (which was embraced in the 2005 Bill C-60 bill that died on the order paper), why would you revert unnecessarily to a more restrictive approach?
4. As you took to the podium for the spectrum auction announcement, you stood behind a sign that proclaimed “putting consumers first.” How do you reconcile that claim with the strong opposition to anti-circumvention legislation from all Canadian consumer groups who fear that the law will be used to create unfair limitations on what consumers can do with their own personal property?
5. Earlier this year, your government released its national science and technology strategy. Notwithstanding the emphasis on research and education, a Canadian DMCA would represent a significant setback for the Canadian education community who would be locked out of fundamental education rights such as research and private study. Moreover, the Canadian digital security community warned against anti-circumvention legislation, which it fears could harm an emerging industry in Canada. How do you reconcile the emphasis on science and technology with copyright reforms that would create barriers to such initiatives?
6. The Privacy Commissioner of Canada, recognizing the potential impact of a Canadian DMCA on the privacy rights of millions of Canadians, has called on the government to conduct a privacy impact assessment on copyright reform legislation. Have you conducted a PIA? If so, will it be released to the public?
7. The Conservative Party of Canada pledged to “eliminate the levy on blank recording materials” in its 2005 policy declaration. Why has that pledge been abandoned? Similarly, the 2005 policy declaration stated that “the Conservative Party believes that reasonable access to copyright works is a critical necessity for learning and teaching for Canadian students and teachers, and that access to copyrighted materials enriches life long learning and is an essential component of an innovative economy.” Why has the party abandoned this position with copyright reform that will make it more difficult for teachers and students to access copyright materials?
8. The Conservative Party of Canada has regularly emphasized the need to respect provincial rights. Academic experts have already raised concerns about the potential constitutional validity of a Canadian DMCA that would represent a significant incursion into provincial jurisdiction. Indeed, the “para-copyright” provisions found in anti-circumvention legislation are better characterized as laws related to property (a provincial matter) rather than copyright (a federal matter). How do you reconcile this inconsistency?
9. Your government claims that it prioritizes the need of small business in Canada, going so far as to appoint Diane Ablonczy as the Secretary of State for Small Business. Yet if the U.S. DMCA is any indication, a Canadian DMCA will have a devastating effect on small business, which will face barriers to innovation and the prospect of costly litigation. For example, Skylink Technologies, an Ontario company, was forced to spend millions of dollars in legal fees to defend itself in U.S. courts over claims that its universal garage door remote opener violated the DMCA. How will the Canadian DMCA guard against this outcome?
10. Copyright lobby groups claim that Canada has weak copyright protection, yet there are many areas where Canada’s law is stronger than that found in the U.S. For example, Canadian copyright law does not include parody, time shifting, and device shifting within fair dealing. As a result, many forms of free speech may violate the law in Canada, while common activities such as recording a television show is still not permitted. If you are interested in “modernizing” copyright law, why have you avoided addressing every day issues that matter to individual Canadians?
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at www.michaelgeist.ca.]
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