p2pnet.net News View:- Interacting with a government moving towards legislation is like trying to get your voice heard within a very loud slow-motion conversation. Government departments (bureaucrats) have consultations, often listening better to those who they expected to offer them input. A committee of members of parliament have conversations where they invite witnesses to speak before the committee to try to learn more. The parliament then creates reports which the government departments (bureaucrats) just reply to. Eventually legislation is drafted and the parliament as a whole, and then the senate, have debates, invite witnesses, suggest amendments, and then either pass or reject the legislation.

We in Canada have been within this process for the latest round of copyright revision for many years. Some parts of the changes have been slow in coming, but others such as the special casing of the Internet for retransmission was extremely quick and resulted in the most recent changes to the copyright act in 2004 (See bills C-8 and C-11). Please notice these dates as some of the incumbent special interest groups are claiming that the copyright act hasn’t been changed since 1908 or similar.

In 2001 the bureaucracy launched a consultation process where many of us sent in written submissions and showed up in consultations. I do not believe we were well received because the process expected to hear from the “usual suspects”. Prior to the 1990’s copyright was largely a debate between creator associations (in theory representing creators), institutional intermediaries (media companies, major labels, etc) and institutional users (libraries, educational institutions, etc). With the new abilities that new media such as the Internet we see the ability of creators and their audiences to “skip the intermediaries” and no longer rely on these large institutions. Unfortunately the institutions are fighting back to protect our dependencies on them, and governments and parliaments have not entirely realized the change and often move forward as it if it still the 1980’s or earlier.

This process created a report called the section 92 report that was sent to parliament. This was a report jointly created by the bureaucrats in Industry Canada and Heritage Canada as copyright is a joint responsibility of those two departments. We then saw invitations to the Standing Committee on Canadian Heritage primarily from the various institutions that lead up to a May 2004 Interim report on Copyright. Before the government could reply we had an election, so the report was re-tabled in November.

Some time before the end of March 2005 we will see the next stage in this process, which is the response from the government departments to the interim report. While we will soon know what the response will say, I have made some predictions in the Digital Copyright Canada forum based on various observations.

1 - Interim report recommendations 4+5 that dealt with adding a levy to the educational use of the Internet may be temporarily moved off the table. Hopefully this will not mean the educational sector will go back to sleep and not participate in the upcoming hearings/etc. This is something to realistically be worried about.

See: Canadian MP Says Extended Licensing Proposal Delayed

We also need to somehow turn the educational sector into allies rather than opponents. They have thus far been asking for institutional exceptions that are creating far more problems for us than it will grant them. Recommendations 4+5 were a direct (and logical) government response to the inappropriate institutional exceptions the educational sector were asking for. At the same event that Mr. Geist reference (in the link above) we heard from other representatives of the educational sector that echoed the same thinking.

2 - The most controversial aspect of 1996 WIPO treaty ratification, anti-circumvention, may be tied to actual copyright infringement. This means that some of the most visible abuses of anti-circumvention might be avoided. I don’t believe this is enough to render anti-circumvention laws harmless for the communications technology sector given there will still be an innovation chill, but it may be a good starting point.

I believe Canada must go much further which is to provide explicit protection for reverse-engineering for interoperability. We could model this after the 1991 EU directive on the protection of computer software (91/250/EEC). The EU directive includes prohibition against anti-circumvention which is a policy conflict, but put into this context offers far more protection for legitimate digital innovation and creativity than ratifying the 1996 WIPO treaties without explicit protection for software developers.

The roots of the problem is still not addressed, which is that the 1996 WIPO treaties are aimed at protecting legacy businesses from disruptive innovation/creativity. This may be something we will need to turn our sights on the department of International Trade given those bureaucrats at the treaty-stage have far too much unaccountable influence.

3 - On ISP liability I get the impression that the supreme court ruling on royalties for music (Tariff 22) will come into play suggesting that a notice-and-notice may be more workable than a claim-and-censor or claim-and-terminate. Copyright holders already have the ability to go to courts, offer proof of authorship/etc and get an injunction, so anything stronger is simply not warranted.

I can only hope that Mr. Geists’ comparison with the judicial oversight required for take-down orders for child pornography were heard as well. Did parliament really intend to send a message to Canadians that copyright infringement is considered an orders-of-magnitude worse crime than child pornography?

4 - A new “making available” right was also part of the 1996 WIPO treaty. It is likely that this yet-another neighboring right will be added in Canada to create further problems. The more separate rights exist for the same creativity, the larger the structural limitations to creativity that will exist. This is because only large institutions will have the legal and other resources to clear all the necessary rights to make use of any creativity.

This is not one of the issues our community has been strong in talking about, so with little opposition it is likely to just be rammed through. It was discussed in the court rulings something "missing" in Canada, and has been one of the major distractions in the CRIA cases. In the CRIA case we had CRIA claim it is a lack of "making available" right that cause them to lose their case, rather than the reality of it being lack of evidence.

5 - The proposals from professional photographers will likely go through. Professional photographers were wanting to mess up amateur photography (the majority of photography) and client expectations for commissioned photographs in order to try to dip their hands further into the lucrative stock-photo marketplace. The number of times I heard policy makers and politicians parrot the "give photographers same rights as other creators" rhetoric from the special interest groups suggested to me that very few understood this issue. I know that it took me a while to "get it" and I was spending a lot of time thinking about the various proposals — far more time than the parliamentarians had to spend.

As we move further down the process, the importance of Canadians letting their elected representatives know their views increases. As a group of concerned Canadians we host discussions on the Digital Copyright Canada forum, and have a Petition for Users’ Rights which we have received over a thousand signatures for. We provide resources for people trying to learn about this critically important area of policy, as well as support for people wanting to write to or possibly visit their elected representatives.

With the timing of this response happening right before the Junos we can expect the legacy recording industry to be crying fowl, claiming that no matter how much parliament is offering to protect their outdated way of doing business that they need more. We need to be strong in our response to ensure that parliament realizes that this is the wrong direction for Canada to go. Innovation and creativity always builds on the past, and the past always tries to control the creativity that builds upon it. Canada must protect the future by limiting this control by the past.

Russell McOrmond

(McOrmond is host of Digital-Copyright.ca, co-founder of GOSLINGcommunity.org, and a self-employed “peer production” consultant.)

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<—–4 + 2 = 5 for extremely large values of 2—->

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See:-
Microsoft online advertising - Microsoft adverts on the CBC?, p2pnet, March 19, 2005
policies - Summary of CBC Advertising Standards, CBC
advertising - Canadian Broadcasting Corporation (CBC) - Advertising Standards
world we live in - Putting the Public First, CBC, June 3, 1999

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