Copyright protesters got Industry Minister Jim Prentice’s attention: now what?

The week of December 10, just prior to parliament going on winter recess, a bill entitled “An Act to amend the Copyright Act” was added to the notice paper. Earlier in December, Michael Geist had created a Facebook group called “Fair Copyright for Canada” and a few Calgary-area participants organized to show up to Jim Prentice’s Christmas party on December 8. Many others called the Minister’s office, and still more contacted their own MP about this bill.

A bill was not tabled in December, and many suggest the delay was because of this unexpected public interest in this policy.

It is expected that the same bill will be tabled soon after parliament returns next week on Monday, January 28. Given this topic is going to heat up very quickly, I wanted to offer a bit of background so that those in the IT Industry will have an idea of what is at stake for them.

One of the legitimate criticisms of the discussion so far has been that nobody outside of government (who are under non-disclosure) have seen the bill, so how can people be opposed to it already?

While people did not see the bill, the government did make public statements about some of the policies that would be implemented in it. As one example, I was offered the following in a letter sent to me from the staff of Honourable Josée Verner, the current Heritage Minister:

“The Government of Canada, led by the Minister of Industry and the Minister of Canadian Heritage, Status of Women and Official Languages, is working toward bringing Canadian copyright policy into conformity with the World Intellectual Property Organization Internet Treaties.”

While we may not have known other clauses of the bill, opponents and proponents of ratifying these treaties are quite justified in voicing their opinions on these treaties. So there is no suspense, I am opposed to these specific treaties. I am in favour of Copyright, including modernizing copyright law to properly handle ongoing advances in communications technology, just not in the direction proposed by these highly controversial treaties. I will go into more detail about the changes I would propose in future BLOG articles.

This specific issue already had consultations of Canadians starting in 2001, and ratifying these specific treaties was rejected by the vast majority of the over 700 submissions made to that consultation (Note: I made a few submissions: one to the consultation, and another as a reply to another submission, and I co-signed a submission from the EFF). This was back a few years when fewer people were aware of copyright revision and its implications on their daily lives, and the government could easily get 100 times that many submissions if they held a consultation now, and would likely get more than 93% being in opposition to ratification of these treaties.

Given some of the misinformation offered in the debate about Canadian Copyright law and the WIPO treaties, it is useful to do a little bit of a history lesson.

Canadian copyright law has many influences, but the countries that influence us the most is the UK, France and the United States.

Prior to 1921, Canada operated under the U.K Copyright Act, with a few local differences to deal with our proximity to the United States. The United States did not honour foreign copyright, so was reprinting British works (without permission or compensation to the authors) and then trying to sell them in Canada. From this earliest time, how copyright was handled in Canada specifically needed to deal with the extremely weak respect for Copyright that existed in the United States.

We can start with the 1920’s, given this is when Canada started to really make our own policy decisions. The 1921 act was sufficient to allow Canada to ratify the Berne Convention for the Protection of Literary and Artistic Works in 1928. This convention was the foundation of international Copyright law, and became treaty #1 at the World Intellectual Property Organization when it was being formed in the 1960’s and ’70’s.

WIPO currently administrates 6 Copyright related treaties, and I believe it is instructive to look at the dates when these treaties were ratified in the countries that influence us the most, and also whether they signed or ratified at all.

Berne Convention for the Protection of Literary and Artistic Works
163 contracting parties.

UK: December 5, 1887
France: December 5, 1887
Canada: April 10, 1928
United States: March 1, 1989

Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite
30 contracting parties.

UK: Didn’t sign
France: Signed
Canada: Didn’t sign
United States: March 7, 1985

Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms
76 contracting parties.

UK: April 18, 1973
France: April 18, 1973
Canada: Signed
United States: March 10, 1974

Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
86 contracting parties.

UK: May 18, 1964
France: July 3, 1987
Canada: June 4, 1998
United States: Didn’t sign

WIPO Copyright Treaty (WCT)
64 contracting parties.

UK: Signature
France: Signature
Canada: Signature
United States: March 6, 2002

WIPO Performances and Phonograms Treaty (WPPT)
62 contracting parties.

UK: Signature
France: Signature
Canada: Signature
United States: May 20, 2002

So, what can we learn about these dates?

First, signing and never ratifying treaties is quite normal. As many have pointed out, signing is to ratifying as dating is to marriage. This is true in Copyright, and is also true with other treaties given the United States signed but clearly never ratified Kyoto.

There are also times when countries do not sign at all, and we don’t see the political pressure we have with respect to the two most recent controversial treaties.

An important thing to notice is that the United States is a late comer to the International Copyright table, having only ratified treaties in the 1970’s and ’80’s (compared with the UK and France in the 1880’s). There is also debate whether the US adequately respects Berne today.

The United States very quickly started pushing through their own policy agenda, including in mid 1990’s with their 2 Internet treaties. These two treaties are based on the failed National Information Infrastructure (NII) Copyright Protection Act of 1995, which was then policy laundered through WIPO in 1996, and implemented as the Digital Millennium Copyright Act (DMCA) in 1998. This really is a matter of giving the children control over the boardroom, and is something that should not have been allowed by the more mature countries with a long history at International Copyright law.

The WCT and the WPPT are quite different than the other treaties. With the other treaties the language was fairly well understood at the time in order to avoid confusion, and what the treaties suggested was the regulation of specific activities that can be done with copyrighted works.

The WCT and WPPT have terminology that is still not well defined more than a decade later in the originating country. The concept of “making available” actively being debated in United States courts. You can see this in the brief filed by the EFF with respect to the case Atlantic v. Howell in opposition to the RIAA’s “Attempted Distribution” interpretation of the “making available” language.

The other divergence comes in the form of Article 11 of the WCT and article 18 of the WPPT (Obligations concerning Technological Measures) which don’t regulate activities with respect to copyrighted content, but seeks to regulate technology which can be used to create, distribute, access and potentially infringe copyrighted content. While I am not convinced this was how all negotiators at WIPO understood these articles at the time, it has been demonstrated that this is how these articles are being interpreted when implemented in law and practice in each country, and is the position aggressively promoted by the United States government. The distinction between technical measures applied to content and technical measures applied to devices was the topic of my January 15′th article.

Some suggest that Canadian law is antiquated and the US law is modern. The most recent major changes to Canadian law came in 1997 where we (among many other things) implemented the Rome convention. The most recent major changes in US law came in 1998. I’m not sure that a single year difference constitutes the difference between antiquated and modern, but this is the level of debate we see ourselves in currently.

Whether we are talking about the Internet, communications technology that we own (and should have the legally protected right to control), or the software we use to control our technology, this reform will have profound implications. What exactly these implications are is uncertain given the people authoring and passing these laws do not have an adequate technical background to understand the effectiveness of the intended consequences, nor the harm of unintended consequences.

It is critical that people in the IT sector get involved in these reforms. There are many organizations your company can join such as the Digital Security Coalition, and the Canadian Software Innovation Alliance. Individual citizens can join and participate in discussions hosted by the Digital Copyright Canada forum, Online Rights Canada, and the various Fair Copyright for Canada regional and Canada-wide Facebook groups.

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Jim Love, Chief Content Officer, IT World Canada

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