Copyright Consultation: Strange bedfellows and the not so Special 301 report

There are now only 4 days left to make your voice heard in the 2009 copyright consultation.

I was about to write about the policy and statistical launderingwhich can be seen with the 1996 WIPO treaties as well as the Special301 report. This is a report which special interest groups have managedto convince the United States government to abuse to pressure othercountries into making radical backward-facing changes to theirCopyright law.

I then read an article about a statement by Bell Canada about policywhich I agreed with. Given I disagree with the phone and cablecompanies on most things, it is pretty special for me to find an areawhere I agree.

The article on Michael Geist’s BLOG mentiones someone from Bell Canada (Attendee list says Suzanne Morin) as having said the following:

“A role we don’t hear much about though is the role ofcontent owners to defend in Canada their own statutory rights. Bell anda few other Canadian ISPs several years ago spent time and resources inthe courts helping to develop the legal blueprint that content ownerswould need if and when they decided to legally pursue their rights in away that respects the privacy and judicial rights of Canadians. We’restill waiting. No one is crazy about suing consumers because it is notpopular. But what sort of message does it send to Canadians about thelegality of the activity when an entire industry says we won’t be suingCanadians for sharing our content without our permission.”

This is something I have been saying for a long time. Contrary tothe claims of a few special interest groups, strong Canadian copyrightlaw already provides adequate tools for copyright holders to suecopyright infringers. The false claim that Canadian copyright law is“weak” is abused over and over again to justify radical changes to thelaw, when no such justification exists.

I ask similar questions of copyright holders of all types. I askthem what activities they feel should be illegal. In most cases theylist activities already adequately covered under existing Canadian law.They either were not aware of how strong Canadian law already was inprotecting the interests of copyright holders, or somehow wanted topass the buck to someone else to take on the responsibility and costsfor protecting their interests.

They often point to the BMG Canada v Doe (”The CRIA case”) in 2004and the appeal in 2005 as part of their reason for believing thatCanadian law is “weak”. The reason BMG lost this case and the appealwas because strong Canadian privacy legislation required that BMGproduce a tiny amount of evidence of infringing activities before thecourt would order the disclosure of the names of the John and Jane Doesalleged to have infringed copyright. It is Canada’s strong privacylegislation, not some alleged weakness in Canadian Copyright law, anddetermined the outcome of that case.

I suggest to copyright holders that if the alleged “wrong” to themof someone infringing their copyright is great enough to justifychanging the law, it should be great enough for them to be willing toexercise the rights they already have. Making more activities illegalis useless and counter-productive for special interests unwilling oruninterested in pursuing existing illegal activities.

There are other sources of the false claim that Canadian law doesn’tprovide copyright holders with adequate tools to sue infringers. Thesesources turn out to have the same roots.

Anyone who has read my blog knows the sorted story behind the 1996WIPO treaties and how they originated with the USA’s NationalInformation Infrastructure process. These were meetings where thesuccessful companies of the day were asked to comment on how theInternet should be regulated. As would have been predicted by anyonewho has read The Innovator’s Dilemma(When New Technologies Cause Great Firms to Fail, by Clayton M.Christensen), they made policy suggestions that would protect theirestablished business models from competition.

This same group of industry associations didn’t stop there, and havebeen very active since. They injected themselves into the policy makingprocess of the United States Trade Representative (USTR).The USTR creates a yearly report which makes various claims about thestate of the “Intellectual Property” regimes of their various tradepartners. The primary source of this report is the International Intellectual Property Alliance (IIPA).

IIPA’s seven member associations are: the Association of AmericanPublishers (AAP), the Business Software Alliance (BSA), theEntertainment Software Association (ESA), the Independent Film &Television Alliance (IFTA), the Motion Picture Association of America(MPAA), the National Music Publishers’ Association (NMPA) and theRecording Industry Association of America (RIAA). This is a who’s-wholist of special interest groups whose members stand to gain by havinglaws which protect them from modern business methods (IE: protect themfrom progress). Nobody would be surprised to learn are some of the sameinterest groups behind the 1996 WIPO treaties in the first place.

I have been critical of the statistical methods used by theseassociations to allege the harm from copyright infringement compared tothe inevitable industry declines due to legitimate competitive marketforces. I include a section in my submission to this consultationon “invalid statistics”. While I focused on the false reporting fromthe Business Software Alliance, the methodologies from the otherassociations are no better.

The quality of these studies have been an embarrassment to otherorganisations who have used them. This was the case when the ConferenceBoard of Canada withdrew studies after it was discovered that they had been plagiarised from the IIPA.Canadian’s should not feel embarrassed to be on this list as if it werean indication of some weakness in our law, but citizens of the UnitedStates should be embarrassed that their trade representative has beenso easily corrupted.

While the IIPA has been asking the USTR to put Canada on its priority watch list, it wasn’t until this yearunder an Obama administration that they did so. This put Canada in alist of other countries that included China, Russia, Algeria,Argentina, Chile, India, Indonesia, Israel, Pakistan, Thailand, andVenezuala.

The reasons given for Canada’s elevation were primarily that Canadahas not implemented the 1996 WIPO treaties, and in the manner in whichthey were envisioned by the United States. This is not surprising giventhe common source of the policy laundered 1996 WIPO treaties and thestatistical laundered Special 301 report. The authors of the 1996 WIPOtreaties are of course going to want every country to implement thepolicy they had managed to dupe the United States government intosponsoring in the first place.

Previous reports spoke about specific alleged issues within our lawsuch as a narrow interpretation of “making available”. I suspect thisallegation is no longer listed given there have been court proceedings within the United Statesthat suggest that US law also doesn’t support that suspect legaltheory. It has been suggested over the years that the only reason theUnited States is not itself on the Special 301 priority watch list isbecause they are the author. Do as I whine, not as I do…

The louder these special interests claim that Canadian Copyright lawisn’t strong enough to protect the rights of copyright holders, themore people will actually believe them. This is quite likely anadditional source of infringement in Canada given these groups areactively misinforming people into thinking that activities such asunauthorised filesharing of music is legal in Canada — something thatno court has agreed with.

Far from being innocent victims, these industry associations areinducing additional copyright infringement as they rant about changingthe law rather than simply pursuing their rights under existing law.

This is related to another important thing which the Bell representative mentioned.

When the recording industry says they “won’t be suing Canadians forsharing our content without our permission”, this should never bemisunderstood as good news. What they are proposing as an alternativeis far worse and dishonest: they either want someone else to accept thepunishment for this activity (holding innocent third parties liablesuch as targeting so-called “enablers”), or they want someone else tobe blamed for any excessive policing (IE: desires for ISPs and/ordevice manufacturers to police copyright, calls to make copyrightinfringement a criminal activity).

If I seem to lack sympathy for their position, it is because I don’thave any. There are a wide variety of methods of production,distribution and funding. One of the tradeoffs of choosing businessmodels dependant on artificial scarcity is going to be accepting“leakage” or accepting the full costs of enforcing ones own rightsagainst their own customers. Of the two options “leakage” is the mostlucrative given the lost potential sales are much lower than the hugepublic relations costs of suing ones own customers. Since the marginalcost of these leaked copies is zero to the producer, no money wasactually lost and businesses that plan to stick around would focus onways to encourage as many people as possible to pay.

Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

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