Things, stuff, and other items of interest

May 2, 2010

The Jolly Rogers or the Maple Leaf? Canadian copyright, ACTA and a plea from the Porn Stars

[ A disclaimer of sorts before we begin: Canadian copyright is a horrendously huge issue, and I am singularly inadequate to covering the scope and breadth the topic sufficiently. I may have gotten some of my facts wrong in this post, I tried not to. I'd appreciate comments if you can spot my (hopefully few) errors. Consider this a very amateur summary, that has left out huge swaths of information in favour of brevity. On with the post. ]
Oh what a tangled web we weave, when first we practise to deceive!
Sir Walter Scott, Marmion, Canto vi. Stanza 17.
Scottish author & novelist (1771 - 1832)
  I'll be honest with you, I don't think it gets any easier no matter how much practice you've got. Case in point, when the evil overlords of the internet started plans back in October of 2007 to begin negotiating the "Anti-Counterfeiting Trade Agreement (ACTA)" I think they may have inadvertently made their task slightly more difficult by announcing publicly that they were about to start planning a secret trade agreement. Emphasis on SECRET.  Here's a tip for you crazy kids to keep in mind the next time you're planning to take part in a top secret international negotiation: Don't make a public announcement about it.

ACTA, or "The Harbinger of the Digital End-Times" as we geeky folk have taken to calling it (that might just be me), is a particularly worrying little piece of international intellectual property (IP) / copyright policy that has been making news headlines all around the world for the last couple of years. If one were a particularly cheeky monkey, one might point out that a secret international trade agreement doesn't exactly inspire an enormous amount of trust in the first place. Exactly what is the message they're trying to send us here? "We're too witless to be able to keep our top-secret trade agreement under wraps, but we're perfectly qualified for the much more difficult task of negotiating an agreement about IP and it's respective rights." Really? That's your message? Seriously? Playing a digital version of monkey-in-the-middle with what purports to be the foundation of all future trade negotiations with the one remaining global superpower and it's best buddies tends to inspire a great deal of cynicism and suspicion.

But I digress,... I've started this doosey of  post half way through, when I really probably should have started it about a decade earlier.

Try to remember all the way back to 1996. It was an exciting year in Canada:
  • January 15 - The Corel Centre opens in Ottawa
  • February 14 - Mr. Dressup does his last show
  • February 15 - Prime Minister Chr├ętien gives protester Bill Clennett the Shawinigan handshake.
  • March 3 - William Shatner is nominated for a gemini award for best dramatic series: TekWar
  • April 3 - All members of the Canadian Forces are ordered to spend the entire day searching for documents that may aid the Somalia inquiry
  • May 19 - Marc Garneau flies on a second space mission
  • June 10 - The Quebec government reintroduces the "Language police"
  • November - SaskTel becomes the first Canadian Internet Service Provider to roll out ADSL
All of this, plus at least one other significant item took place in 1996, most notably: Canada became a signatory to the "WIPO Copyright Treaty"  What's that you say? You're not familiar with the "World Intellectual Property Organization"? Briefly: It's an agency of the United Nations that was established in 1967, but claims rather that it's roots go all the way back to the 1883 Paris Convention. Paraphrasing slightly, it's mandate is to: "[Develop] a balanced and accessible international intellectual property (IP) system". You can find more information on WIPO here if you're interested, or excruciatingly bored. WIPO is made up of 184 member states, Canada being one of them. I know this is a little dull, but trust me, this will become relevant eventually. One of the key passages of the WIPO Copyright Treaty that you should keep in mind is this one:
Article 14
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
WIPO Copyright Treaty, Article 14 
So what's the big deal? We've got a Copyright Act right? Problem solved! Err.... not quite. Our original Copyright Act was written back in 1924, and apparently it didn't really change much for the next sixty-four years. Hard though it may be to believe, some people (most notably - the copyright holders) thought that perhaps after gathering dust for a few generations that there was a slim possibility that our Copyright Act was a just a tad out of date. With the unceasing march of technology, somebody somewhere went and invented a computer, and the whole world changed over night. Now it's not like our Copyright Act was completely forgotten, far from it. It's just that there didn't seem to be much interest in making any sort of significant changes to it. There had been a few studies over the years going back to the mid-fifties, but no one got serious about making changes until 1988. With lightning quick reflexes and a passion for IP policy, our elected officials sprung into action and a mere five years later and made a round of amendments dealing 'musical works' and retransmission rights.

One year after signing the WIPO treaty, our highly esteemed representatives fowarded another amendment in which they proposed that immediate action should be taken, post haste! Mainly in the form of a review of the Copyright Act. With a keen eye on the deadline, bureaucrats and elected officials alike worked night and day and made it happen,.... sort of. As quick as it had begun, it was over a mere two thousand nine hundred and twenty days (eight years) later. Resulting in the Liberal Government headed by one Mr. Paul Martin proposing the "An Act to Amend the Copyright Act", aka Bill C-60.

Now while all this 'work' was taking place on Parliament Hill, the rest of the world was not standing idly by twiddling their thumbs. Not by a long shot. Somewhere in between 1924 and 2005, shortly (if measured on the same scale by which copyright acts are updated) after someone invented the computer, someone else invented the internet. Followed quickly by people all over Canada discovering the wonderful world of file sharing! And their was much rejoicing! At least on the part of the consumers. Not so much with the creative types, in fact, some of them were less than thrilled with some of the technological advances that had flourished during the nineties and the following decade.

According to some of the recording industry types, they were/are losing money hand over fist as a direct result of file sharing. The artistic & cultural industries affected were slow to react initially. Like some sort of money hording mentally deficient sloth monster they decided to thumb their noses at technology (and arguably some fairly convincing trend data that had been accumulating since the dawn of human civilization) and opted to try to shove the genie back into the bottle. Shockingly, this didn't work. So they went with Plan B: Sue the pants off of everyone, and lobby the bloody hell out of the politicians. In Canada, groups like The Canadian Recording Industry Association (CRIA) and The Canadian Motion Pictures Distributors Association (CMPDA) among others: (RIAA & MPAA in the US, and IFPI which functions internationally) have been leading the charge in pressuring our politicians to get off their hineys and get to work. Depending who you ask, some might say they have been rather dedicated in this endeavour, downright frothing at the mouth even, at the thought of an updated Copyright Act. Don't believe me? Fair enough, maybe you'll believe the hard working porn stars from the FSC. (SFW)

With this in mind ('consumers vs creators', not the porn stars), it sets the stage nicely to illustrate the circumstances that the sitting Liberals back in 2005 were dealing with as they crafted Bill C-60. You would probably figure that after a grand total of seventy-two years with little real reform to the Copyright Act, Canadians would be as happy as baby-seal bashing Newfies that their parliamentarians were getting down to brass tacks right? Not so much. Bill C-60 was just about as unpopular a bill as ever was written. Canadians far and wide were quite noticeably not rejoicing. No one (other than the Liberals) was too upset then, when Bill C-60 died on the docket when a federal election was called in 2006.  Paul Martin & his Liberals were given something of a thrashing in the polls, and a new Conservative minority Government was elected headed by one Mr. Stephen Harper.

Canada's progress in reforming it's intellectual property laws, or rather the lack there of, was becoming something of a problem in the international diplomatic circles. To be blunt, people were getting pissed off.  Most notably with our neighbours to the south and our friends in Europe. Two years after signing the WIPO Copyright treaty, the US enacted the "Digital Millennium Copyright Act (DMCA)" (full PDF text) which did not receive a particularly warm welcome by US consumers. It wasn't quite a case of riots in the streets, but suffice it to say the geeks were grumpy. It's (lack of) effectiveness has been debated by more intelligent people than I, but if nothing else it satisfied the US's responsibilities in regards to the WIPO treaty.  Shortly there after, the European Union put in place two seperate directives; The Copyright Directive in 2001,  followed the next year by the Electronic Commerce Regulations in 2002, which took care of the EU's responsibilities under the WIPO treaty. Mean while Canada, nine years after the fact still hadn't gotten it's shit together.

By now, you may have noticed that copyright reform is something of a political hot potato. One which apparently has remarkable longevity and is not restricted one country over another. It would seem that's been the case for quite some while:
Whenever a copyright law is to be made or altered, then the idiots assemble.
Mark Twain's Notebook, 1902-1903

More than a century later and these words still have a ring of truth to them. When you get right down to the kernel of the argument, it doesn't seem like all that complicated of an issue. Artists & creators want to get paid. Consumers want content in the format of their choosing, no strings attached. I've obviously simplified the argument, perhaps too much, but I think that is essentially accurate. What is absolutely gob-smacking, jaw-dropping, mind blowingly (yes I know that's not a real word) shocking is that this process has been handled so staggeringly poorly from every side for so long.

Which brings us back to Mr. Harper. When the Conservatives were elected in 2006 they wasted no time in coming up with a plan of their own,... sort of. Mr. Harper and his man on the scene (Minister of Industry at the time: Jim Prentice) had learned a hard lesson from the rather visceral reaction that the Liberals had provoked with their earlier attempt to amend the Copyright Act. During the week of December 10th - 13th of 2007, they had added Bill C-61 to the order papers of Parliament, but it was never actually brought forth until June of 2008. When the bill did finally make it's first public appearance, Canadian consumers had a bit of a mixed reaction to it. Mixed in so far as it ranged between 'not understanding it' to 'calling for heads on spikes'. Bill C-61's singular success was in surpassing Bill C-60's remarkable efficiency in earning Canadian's disdain. Those who were inclined to oppose the bill argued (rather convincingly) that it was a Canadian version of the DMCA and that it completely undermined Mr. Prentice's promises of a "Made in Canada" solution. While those who argued in favour of the bill pointed out that it was long over due, as more than a decade had now passed since Canada became a signatory to the WIPO treaty, and incurring the responsibility of updating our Copyright Act. The controversy didn't stay in the public's eye for long though, as on September 7th of 2008, the 39th Parliament was dissolved when an election was called. Bill C-61, much like it's predecessor Bill C-60, died on the docket. In May of 2009, journalist Matt Hartley from the Globe and Mail interviewed MP Marc Garneau the Liberal critic for Industry, Science and Technology about the copyright, IP, and the differences between Bill C-60 and Bill C-61. Since then, not a whole lot has changed. It's May 2010, and we still haven't updated our Copyright Act.

Mean while, in a move intended to drive home the point that our lack of progress is irritating some folks south of the US border, Canada has recently been included for the second year in a row on the United States Trade Representative's Special 301 Report under the heading "Priority Watch List". This it would seem is something of a promotion, since between 2005 - 2008 inclusively we had just been included with the rest of the non-priority cases. They go on to get rather specific in terms of what they'd like to see done:
[...] Canada has not completed the legislative reforms in the copyright area that are necessary to deliver on its commitments. The United States urges Canada to enact legislation in the near term to update its copyright laws and address the challenge of Internet piracy. Canada should fully implement the WIPO Internet Treaties, which Canada signed in 1997. Canada’s weak enforcement of intellectual property rights is also of concern, and the United States continues to encourage Canada to improve its IPR enforcement system to provide for deterrent sentences and stronger enforcement powers. In particular, border enforcement continues to be weak. The United States encourages Canada to provide its border officials with the authority to seize suspected infringing materials without the need for a court order.
 USTR - Special Report 301
"Canada" - Page 25
Presumably, the reaction of an official from the Department of Foreign of Affairs gave to a House of Commons committee still sums up Canada's response:
In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.
I also recognize that the U.S. industry likes to compare anyone they have a problem with, concerning their IPR regime, to China and the other big violators, but we're not on the same scale. This is not the same thing. If you aren't on the watch list in some way, shape, or form, you may not be of importance. Most countries with significant commercial dealings are on the watch list.
Ms. Nancy Segal responding to a question from MP Roy Cullen
March 27, 2007 in a session of the Standing Committee on Public Safety and National Security
As noted on Professor Michael Geist's blog 
Canada's reaction seems to be well supported, chiefly by the Computer & Communications Industry Association (CCIA), among others. Considering the membership list of the CCIA, one is inclined to grant them some credibility in this area.

The Conservatives have promised us a "Made In Canada" solution to meeting our responsibilities under the WIPO treaty. The treaty itself specifically states that our updates should be "in accordance with [our] legal systems",  and "under [our] law". Bill C-61 was incredibly unpopular when it was introduced, and yet the government must act. To that end, the Conservatives consulted the Canadian public over a period of two months during the summer of 2009. There seems to be some debate as to whether or not the process was worth while, but not if you ask Minister Clement (the current Minister of Industry). The Conservatives have promised that they will be tabling the red-haired cousin of Bill C-61 soon, very soon, some time this spring. We await with much anticipation.

The United States continues to spearhead the ACTA process, only recently & reluctantly releasing the full documentation of just what it includes. The analysis that I've read so far, seems to be fairly negative, describing it as interfering in the sovereign rights of each member country to determine their own IP law. Naturally, that could reveal as much about the person doing the analysis as the work being analysed, so take it with a grain of salt. Read up, judge for yourself. I know of at least one officially registered Canadian political party that isn't too crazy about it.

Personally, I'm not a fan of ACTA. It goes too far in attempting to solve a problem that should have been remedied by both industry and our own government years, now decades, ago. I don't blame the artists for wanting to get paid, that's only fair. At the same time, the term 'fair use' is not synonymous with 'infringement'. In trying to protect their rights and go after people pirating their content, at best the various recording industries are trampling over people who aren't infringing at all, and at worse they are indifferent to the distinction. 3 strike rules, border searches, and internet bans seem heavy handed, particularly if they're considered a mandatory response. Broad generalizations and absolutes rarely mix well, rarer still when applied as a mandatory reaction in lieu of justice. If nothing else, I've discovered that copyright and intellectual property agreements are freakishly large lumbering entities, that are perpetually trying to catch up to yesterdays standards. In so far as what sort of impact ACTA may have on Canadian copyright? To be honest, I'm not nearly as concerned now as I was when I first started researching the issue. Not for a lack of trepidation about ACTA, on the contrary it's as insidious and odious a piece of policy as ever was crafted. No, my apathy stems from the fact that we signed the WIPO copyright treaty back in 1996 as a member of the assembly, and fourteen years on we still haven't ratified it. Will we sign on with ACTA? Maybe, but I hope not. If the rate by which our government enacts copyright changes is anything to judge, we've probably got some time to act.

Now if you folks will excuse me, I'm going to go pop onto iTunes and see if I can find any new albums from "The Good Lovelies" or "Rodrigo Y Gabriella". Should you be interested in reading more information about Canadian Copyright, Intellectual Property, and all that other good stuff, I would highly recommend some of these websites and blogs as a starting point. I used all of them and others in trying to wrap my noggin around this issue:
While you're at it, as an alternative to copyright, take a gander at creative commons

1 comment:

Unknown said...

Great artical, the sad thing is that no where is getting it right. The music and media industry are trying desperetly to hang on to an antiquated model that stopped providing service the day they started to try and controll the market.

Once the music industry starts to realise that it needs to provide real value to its consumers and the arists people will start to reconsider buying CDS again. But £15 for a new CD with 9 tracks on it, that requires me to install some DRM that will in some cases stop me playing the music that i had leagly aquired before they put this DRM stuff on there. On top of that put it in some wierd file format that requires another download to even play the CD. thats not value thats called screwing me.

and all I wanted to do was listen to a song.