We’ve been hearing reports about the Conservatives secret negotiations on ACTA and CETA. While there is public outcry over the stipulations in these agreements (now that we’ve finally learned, for example, the complete ACTA text) the Conservative government acts unconcerned. In Canada, our laws don’t seem to line up in a way that easily enable regressive, old-economy thinking like “digital locks” and other copyright-oriented failures–and that’s a source of concern to certain special interests.

What is Harper’s gang of Conservatives doing? They’re pushing a new bill, that reportedly will disregard the thousands of Canadian voices consulted on copyright last year. This new bill is already being likened to a Canadian DMCA; Michael Geist writes about Heritage Minister James Moore’s apparent about-face (5 May 2010)¹

“Moore has argued for a virtual repeat of Bill C-61, with strong digital locks provisions similar to those found in the U.S. Digital Millennium Copyright Act (DMCA) and a rejection of a flexible fair dealing approach.”

See the underlying implication? Geist pointed it out in his article, noting how the bill would immediately impact the other global negotiations (ACTA). That’s a concern. First off, the Conservatives repeatedly claimed that things like ACTA would not force Canadian law changes. The CBC reported last year (1 December 2009)¹ on Conservative Industry Minister, Tony Clement’s response to the NDP’s Charlie Angus (Angus has been a rare fount of intelligence when it comes to modern copyright reform) “The ACTA negotiations are in fact subservient to any legislation put forward in this House. . .” In other words the domestic changes now, allow the Conservatives to claim they didn’t lie. They’ll change Canadian laws in a way that just happens to be in accord with ACTA, prior to signing ACTA.

Remember, after getting a couple attempts at new copyright legislation wrong, the Conservatives set up a ruse to distract the public. The copyright consultation ended up being a bit of a catharsis for a frustrated public and a publicity stunt for the Conservatives. In fact, the public consultation on copyright issues was a great idea, if the Conservative government were actually prepared to listen to the public’s desires for fairer, less restrictive regulations.

Failings of the DMCA

The United States enacted its DMCA in 1998. Plenty of people from all perspectives expressed their dismay with the huge problems it would cause, unfortunately the DMCA took effect anyway. In March 2010, the Electronic Frontier Foundation (EFF) published a study³ (PDF) on more than 10 years of consequences of the DMCA. It found the following

“The DMCA Chills Free Expression and Scientific Research.
Experience . . . demonstrates that it is being used to stifle free speech and scientific research. . . have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.

The DMCA Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public’s fair use rights. Already, the movie industry’s use of encryption on DVDs has curtailed consumers’ ability to make legitimate, personal-use copies of movies they have purchased.

The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. . .

The DMCA Interferes with Computer Intrusion Laws.
Further, the DMCA has been misused as a general-purpose prohibition on computer network access. . .”

In the Canadian context, back in 2008, Michael Geist wrote up a bunch of reasons that a Canadian DMCA was problematic⁴. Although the Conservatives swapped out their Industry Minister and we’re talking about a new bill, much of Geist’s rationale still holds. Here are some of the things he pointed out about the prior Conservative DMCA attempt, if their new version is like the old, we’ll have to worry about the same problems.

“Supreme Court of Canada has emphasized the importance of balance between creators rights and user rights, the Canadian DMCA eviscerates user rights in the digital environment by virtually eliminating fair dealing. . . Canadian DMCA erects new barriers for teachers, students, and schools at every level who now face the prospect of infringement claims if they want to teach using digital media. . . Canadian DMCA will render it virtually impossible to protect against the invasion of privacy by digital media companies. . . Canadian DMCA means that consumers no longer control their own personal property. . .”

If you were to buy a media device like an iPod, your use of it is controlled by a third party. This already happens with Apple and other companies to some degree. Consider this excellent piece by Russell McOrmond⁵ (3 May 2010). He’s talking about DRM (initially known as digital rights management but more aptly called digital restrictions management for the way it is truly used), he’s not talking about the DMCA or copyright changes. However DRM is a problem compounded by DMCA-like laws because those DMCA laws prevent people from lawfully circumventing the silly (and I’d argue unethical and abusive) DRM that already exists. Russell makes it simple:

“. . . we have a scenario where people are buying something, but where they are not expected to retain ownership-like rights. To me it is obvious that if I own something that it is me, and not someone else, that maintains the keys for any locks applied to what I own. . .”

It’s worse than that though. If you continue reading, McOrmond points out a significant transformation in how we interact with our cultural manifestations.

“Anti-competitive locks on content threaten to cause a transformation of traditional retail content distribution from where the product is the content and the customer is the audience, to one where the product is the audience and the customer is the copyright holder. If a small number of locked platform providers are able to dominate the distribution networks for copyrighted works it will then be these platform providers, not copyright holders, that are in control of the business models.”

You see, the copyright holder has the reins on what the audience can get however the device manufacturers manage how. Together these manufacturers and copyright holders control everything the audience is allowed to experience. And that’s to be codified in law. No wonder major music and movie industries push so hard for these new copyright laws, they stand to control so much.

Look, it’s fine to try to appeal to everyone’s tangible pleasures with the points about not controlling your own “property”. But our very rights to interact and share our own culture are on the line. Our rights for freedom of expression are at risk of being restricted and that is going to hurt in unimaginable ways.

Why do these old industries need laws to coerce everyone into accepting their control. The control they want is contrary to the digital medium where information flows infinitely and effortlessly reproduces itself. The control they want is wrenched–flawed–from a physical realm in which control was tangible and nothing really could be reproduced infinitely or effortlessly.

Canada needs to evolve and build its economy, especially as we move out of a recession and face a huge opportunity with digital media. The way many old media companies (those pushing for DMCA-style restrictive, unbalanced copyright reforms) used to make money is irrelevant in the digital realm. This is the greatest bone of contention that I have with the push for DMCA-like copyright reform. It’s biased toward ways of thinking that simply don’t pertain to our modern culture, economy, and way of living. It’s biased toward industries that need to evolve or be put out of their misery. Helping irrelevant non-evolving industries to struggle along just puts Canada at the very back of an emerging world economy. And it will do it at the cost of enslaving our culture making criminals out of innocent citizens.

This post is not so much about what the Conservatives have done, but rather what they’re about to do. It’s time to once again get up in arms, protest, write letters, and spread the word about the impending shortsightedness of an upcoming Conservative copyright bill. And in case copyright still sounds like a dull and arcane issue, please understand that the way these copyright bills have been going (under the Conservatives and in certain other countries’ sorry legislations) they will have profound, deep-reaching impacts on your life.

Geist recommends writing (physical) letters to your MP as well as the ministers and PM responsible, “No stamp is required – be sure to include your home address and send it to the House of Commons, Ottawa, ON, K1A 0A6″. There’s some more information from the Canadian Coalition for Electronic Rights

Charlie Angus is performing a valuable job, pressing for answers on behalf of the Canadian public. I’d like to paraphrase a few of the points he raises, but first, he introduces the broad problem as follows

“On December 12th in the House of Commons, I pressed Industry Minister Tony Clement for an explanation as to why the government was engaged in public consultation on copyright reform when, simultaneously, the government was negotiating a treaty that would undermine a Canadian solution to digital copyright issues.

At that time, the Minister informed the House that the ACTA agreement would be subservient to Canadian copyright reform legislation. But what he failed to explain is that if Canada agrees to ACTA before new legislation is introduced, the government will have given away to the United States Trade Representative (USTR), the right of the House to shape the substance of any copyright reform legislation.”

The public consultation he’s referring to in the first paragraph was the Canadian Consultation on Copyright in 2009. This consultation, through town hall meetings, online fora, and a large-scale open call for responses to pertinent issues facing modern copyright (my submission), brought Canadians (roughly 8000 of us) from all areas and interests together to debate and voice a (hopefully) positive future for Canadian copyright policy.

Angus points out that the treaty has strayed into commercial waters. That’s opposed to simply addressing counterfeiting issues likes its name falsely suggests. In fact, it’s so deep in the waters of private commercial interests that the CBC² (26 January 2010), reporting on a number of consumer rights and civil liberties groups, described their stance thus:

“ACTA, which they say threatens the fundamental freedoms of the people living in member countries. The treaty is being motivated by U.S. entertainment lobbies, and would allow internet providers to spy on customers and criminalize the everyday behaviour of millions of people, they said.”

Radio-Canada³ (26 January 2010) quoted Anthony Hémond, avocat à l’Union des consommateurs

“Ils ne peuvent pas négocier comme ça, en secret, un accord d’une telle importance et qui a des répercussions si grandes sur nos libertés fondamentales.”

Angus wastes no time asking about the role Van Loan’s dept plays in this. It’s poignant especially since during this period of prorogue, when the Conservatives have prevented the wider representation of Canadian interests from being acted upon through parliament. Yet Van Loan’s department of International Trade continues to engage in negotiations on ACTA.

The letter continues to ask why the secrecy, requesting it be remedied. It asks for sections of the draft agreement to be produced. Angus raises a number of concerns about the lengths Canadian officials have been instructed to go in their negotiations and how this impacts Canadian privacy and legal concerns. The letter also points out that both India and China have not been party to this agreement. Their growing economies coupled with their treatment of copyright and “intellectual property” regulations make them a competitive force that should not be disregarded when legislating our own policy.

Angus’s letter lists specifics too. He asks about the degree to which ACTA provisions could allow corporate interests to bar individuals’ access to the Internet. One method that has seen problematic results in a few countries already, is the three strikes model. That model coupled with US-style “notice-and-take-down” (as opposed to Canada’s notice-and-notice) enforcement means many would likely lose their access to the Internet or worse; without necessarily being proven guilty of anything.

In a Toronto Star article⁴ (25 January 2010), Michael Geist points out a cost issue as well:

“Much of the three-strikes debate has focused on its impact on Internet users, yet the price of establishing such systems has scarcely been discussed.. . . Initial government estimates peg the expense to Internet providers alone at as much as £500 million ($850 million Canadian) over 10 years.. . . the U.K. estimates are consistent with a 2006 Industry Canada commissioned study on the costs of Internet provider notification schemes. The study concluded that the cost of a single notification was $11.73 for larger Internet providers (more than 100,000 subscribers) and $32.73 for smaller Internet providers. Considering the sheer number of notifications – last summer Bell Canada acknowledged receiving 15,000 notifications each month – the costs quickly run into the millions of dollars.”

Those costs would certainly be a burden on Canadian providers and likely get pushed onto consumers.

When Angus talks about the US-established tradition in the courts with respect to people that are not directly responsible for infringement, secondary liability, he calls it a “litigator’s dream” and “nightmare for the general public”. Thinking about technology, copyright, and ISPs, he says

“What instructions have you given your negotiators regarding the USTR’s push to initiate a secondary liability regime? In leaked official ACTA documents from the EU, it is clear provisions would use treaty obligations as a means of superceding Canadian case law and imposing the U.S. Supreme Court’s Grokster opinion upon Canadians.”

The Conservatives already failed to push through two bills changing copyright law. These bills were shown to have been heavily influenced by ailing industries seeking to maintain their outmoded business models. They showed little regard to the well-being of the Canadian public, nor long-term savvy for garnering a competitive Canadian economic edge on the world stage. Yet what we’ve all learned so far of ACTA and CETA imply that these treaties will force laws here at home, in exactly the direction we don’t want.

The former bills were loudly shot down through public outcry. However, it appears that now the Conservatives are taking advantage of public distraction with other issues to push ahead in spite of the public’s desires. Peter Van Loan ought to show that his party can mean what it says when it claims to be accountable. The Conservatives need to be transparent and answer to the public’s concerns, especially when it’s already asked what those concerns are in a broad public consultation.

(Note: Michael Geist has published a detailed timeline of the ACTA events and three part backgrounder on the topic).

Remember how the Conservatives got their first two attempts at copyright change wrong? Later the government set up a consultation with the Canadian public. The consultation ought to be applauded for opening lines of communication so that everyone in our shared culture had a chance to speak out on what we’d like to see in terms of reform (if at all).

That consultation however, feels increasingly like little more than a publicity ruse to keep concerned citizens occupied while the Conservatives work their way through the secret negotiations with foreign interests.

The copyright consultation Web site¹ says:

“It is important that any new legislation that is tabled not only reflect the current technological reality, but is also forward-looking and can withstand the test of time. The government is taking this opportunity to listen to Canadians about what is important to them on copyright. …the government will take stock of the submissions that Canadians have made and the discussions that took place. With these in mind, the government will draft and table new legislation.”

Why does the Conservative minority government pay lip-service to caring about Canadians’ voices on the subject? Why is it proceeding on the international stage without respect to what Canadians want (sometimes even contrary to what many Canadians have expressed)? And why does it have the gall to keep its foreign talks secret and not release the information to the public?

Canada is involved in the ACTA treaty, which has been widely criticized for its potential to bring in regulations on Canadian content, “intellectual property”, and other copyright issues that interfere with the ideas and values Canadians expressed during our public copyright consultation. Consider this Wired News² (4 December 2009) article

“According to leaked documents, the European Union expressed alarm that the Obama administration is lobbying on behalf of the entertainment industry as part of the negotiations for the new international copyright accord.

The document, “European Union’s Comments to the U.S. Proposal,” notes that the “most important provision” of the U.S.-proposed copyright section includes language noting that the United States’ “overarching objective” is to “facilitate the continued development of industry.”"

The US has great interest in controlling “intellectual property”, implementing strategies to secure this domain of economic empire, so it’s not surprising that the sentiment expressed above would exist. But how does that fit with Canada’s participation? The Financial Times³ (26 May 2008) reported

“OTTAWA — The federal government is secretly negotiating an agreement to revamp international copyright laws … Called the Anti-Counterfeiting Trade Agreement (ACTA), the new plan would see Canada join other countries, including the United States and members of the European Union, to form an international coalition against copyright infringement. … Federal trade agreements do not require parliamentary approval.”

Interestingly, so long as it’s a trade agreement, the minority Conservative government essentially seems to have free rein. Our government gets to bow to outside interests (industry and foreign governments) discarding Canadian desires. Indeed, no governments have fully released the ACTA documents to the public, it’s only through occasional partial leaks that the public discovers what is happening without broad consent, behind closed doors.

Michael Geist has posted a nice timeline⁴ (31 March 2009) of ACTA events. But things got worse recently, as noted on Geist’s site⁵ (16 December 2009). Geist brought up that current Canada/EU talks on a trade agreement, separate from ACTA, have a segment addressing “intellectual property”. He says:

“the EU proposal for the IP chapter has just leaked online^[6] and the document is incredibly troubling.  When combined with ACTA, the two agreements would render Canadian copyright law virtually unrecognizable as Canada would be required to undertake a significant rewrite of its law.  The notion of a “made-in-Canada” approach – already under threat from ACTA – would be lost entirely, replaced by a made-in-Washington-and-Brussels law.”

So Conservatives, what are you really doing? You set up two rounds of failed copyright reforms, which were embarrasing in their short-sighted, industry-controlled direction, then set up a sham public consultation, and finally are engaged in not one, but two secret trade agreements involving “intellectual property” restrictions that are contrary to the best interests of the Canadian public.