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 laundering
which can be seen with the 1996 WIPO treaties as well as the Special
301 report. This is a report which special interest groups have managed
to convince the United States government to abuse to pressure other
countries into making radical backward-facing changes to their
Copyright law.
I then read an article about a statement by Bell Canada about policy
which I agreed with. Given I disagree with the phone and cable
companies on most things, it is pretty special for me to find an area
where 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 of
content owners to defend in Canada their own statutory rights. Bell and
a few other Canadian ISPs several years ago spent time and resources in
the courts helping to develop the legal blueprint that content owners
would need if and when they decided to legally pursue their rights in a
way that respects the privacy and judicial rights of Canadians. We’re
still waiting. No one is crazy about suing consumers because it is not
popular. But what sort of message does it send to Canadians about the
legality of the activity when an entire industry says we won’t be suing
Canadians for sharing our content without our permission.”
This is something I have been saying for a long time. Contrary to
the claims of a few special interest groups, strong Canadian copyright
law already provides adequate tools for copyright holders to sue
copyright infringers. The false claim that Canadian copyright law is
“weak” is abused over and over again to justify radical changes to the
law, when no such justification exists.
I ask similar questions of copyright holders of all types. I ask
them what activities they feel should be illegal. In most cases they
list activities already adequately covered under existing Canadian law.
They either were not aware of how strong Canadian law already was in
protecting the interests of copyright holders, or somehow wanted to
pass the buck to someone else to take on the responsibility and costs
for protecting their interests.
They often point to the BMG Canada v Doe (”The CRIA case”) in 2004
and the appeal in 2005 as part of their reason for believing that
Canadian law is “weak”. The reason BMG lost this case and the appeal
was because strong Canadian privacy legislation required that BMG
produce a tiny amount of evidence of infringing activities before the
court would order the disclosure of the names of the John and Jane Does
alleged to have infringed copyright. It is Canada’s strong privacy
legislation, not some alleged weakness in Canadian Copyright law, and
determined the outcome of that case.
I suggest to copyright holders that if the alleged “wrong” to them
of someone infringing their copyright is great enough to justify
changing the law, it should be great enough for them to be willing to
exercise the rights they already have. Making more activities illegal
is useless and counter-productive for special interests unwilling or
uninterested in pursuing existing illegal activities.
There are other sources of the false claim that Canadian law doesn’t
provide copyright holders with adequate tools to sue infringers. These
sources turn out to have the same roots.
Anyone who has read my blog knows the sorted story behind the 1996
WIPO treaties and how they originated with the USA’s National
Information Infrastructure process. These were meetings where the
successful companies of the day were asked to comment on how the
Internet should be regulated. As would have been predicted by anyone
who 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 their
established business models from competition.
This same group of industry associations didn’t stop there, and have
been very active since. They injected themselves into the policy making
process of the United States Trade Representative (USTR).
The USTR creates a yearly report which makes various claims about the
state of the “Intellectual Property” regimes of their various trade
partners. The primary source of this report is the International Intellectual Property Alliance (IIPA).
IIPA’s seven member associations are: the Association of American
Publishers (AAP), the Business Software Alliance (BSA), the
Entertainment Software Association (ESA), the Independent Film &
Television Alliance (IFTA), the Motion Picture Association of America
(MPAA), the National Music Publishers’ Association (NMPA) and the
Recording Industry Association of America (RIAA). This is a who’s-who
list of special interest groups whose members stand to gain by having
laws which protect them from modern business methods (IE: protect them
from progress). Nobody would be surprised to learn are some of the same
interest groups behind the 1996 WIPO treaties in the first place.
I have been critical of the statistical methods used by these
associations to allege the harm from copyright infringement compared to
the inevitable industry declines due to legitimate competitive market
forces. I include a section in my submission to this consultation
on “invalid statistics”. While I focused on the false reporting from
the Business Software Alliance, the methodologies from the other
associations are no better.
The quality of these studies have been an embarrassment to other
organisations who have used them. This was the case when the Conference
Board 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 were
an indication of some weakness in our law, but citizens of the United
States should be embarrassed that their trade representative has been
so easily corrupted.
While the IIPA has been asking the USTR to put Canada on its priority watch list, it wasn’t until this year
under an Obama administration that they did so. This put Canada in a
list of other countries that included China, Russia, Algeria,
Argentina, Chile, India, Indonesia, Israel, Pakistan, Thailand, and
Venezuala.
The reasons given for Canada’s elevation were primarily that Canada
has not implemented the 1996 WIPO treaties, and in the manner in which
they were envisioned by the United States. This is not surprising given
the common source of the policy laundered 1996 WIPO treaties and the
statistical laundered Special 301 report. The authors of the 1996 WIPO
treaties are of course going to want every country to implement the
policy they had managed to dupe the United States government into
sponsoring in the first place.
Previous reports spoke about specific alleged issues within our law
such as a narrow interpretation of “making available”. I suspect this
allegation is no longer listed given there have been court proceedings within the United States
that suggest that US law also doesn’t support that suspect legal
theory. It has been suggested over the years that the only reason the
United States is not itself on the Special 301 priority watch list is
because they are the author. Do as I whine, not as I do…
The louder these special interests claim that Canadian Copyright law
isn’t strong enough to protect the rights of copyright holders, the
more people will actually believe them. This is quite likely an
additional source of infringement in Canada given these groups are
actively misinforming people into thinking that activities such as
unauthorised filesharing of music is legal in Canada — something that
no court has agreed with.
Far from being innocent victims, these industry associations are
inducing additional copyright infringement as they rant about changing
the 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 for
sharing our content without our permission”, this should never be
misunderstood as good news. What they are proposing as an alternative
is far worse and dishonest: they either want someone else to accept the
punishment for this activity (holding innocent third parties liable
such as targeting so-called “enablers”), or they want someone else to
be blamed for any excessive policing (IE: desires for ISPs and/or
device manufacturers to police copyright, calls to make copyright
infringement a criminal activity).
If I seem to lack sympathy for their position, it is because I don’t
have any. There are a wide variety of methods of production,
distribution and funding. One of the tradeoffs of choosing business
models dependant on artificial scarcity is going to be accepting
“leakage” or accepting the full costs of enforcing ones own rights
against their own customers. Of the two options “leakage” is the most
lucrative given the lost potential sales are much lower than the huge
public relations costs of suing ones own customers. Since the marginal
cost of these leaked copies is zero to the producer, no money was
actually lost and businesses that plan to stick around would focus on
ways 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.
