The CBC¹ article (23 June 2010) quotes CSIS director, Richard Fadden talking about the danger of the situation

“The individual becomes in a position to make decisions that affect the country or the province or a municipality. All of a sudden, decisions aren’t taken on the basis of the public good but on the basis of another country’s preoccupations.”

We recently saw that the chief of staff of former Conservative Industry Minister, Maxime Bernier, admitted that the Conservatives were pushing through copyright legislation purely to satisfy the preoccupations of the US.

This news is visible from a number of sites (NDP) such as the Speak Out on Copyright site. But its source is an analysis of digital copyright reforms called North American Digital Copyright, Regional Governance and the Persistence of Variation² (PDF – 1 June 2010), which covers Canada, the USA, and Mexico, and was written by Carleton doctoral student, Blayne Haggart. The document includes the following information about the Conservatives last (failed) attempt at revising Canadian copyright law.

“The 2007/2008 bill and its delay demonstrate the complex role of the United States and civil society in the Canadian copyright debate, especially in the context of a minority Parliament, and the supreme role of the Prime Minister’s Office and Privy Council Office as the final arbiter of legislation in the Canadian parliamentary regime. The decision to pursue DMCA-style TPM rules was purely political, the result of pressure from a Prime Minister’s Office intent on passing a U.S.-friendly law. As Michele Austin, then-Industry Minister Maxime Bernier’s (2006-2007) chief of staff, recounts: “The Prime Minister’s Office’s position was, move quickly, satisfy the United States.” When the two ministers responsible protested for political and technical reasons, the PMO replied “We don’t care what you do, as long as the U.S. is satisfied” (Haggart forthcoming).” [emphasis mine]

It’s difficult to see how that comment could be interpreted as anything other than Conservative office holders operating in the interests of a foreign power while disregarding the public good.

It might be argued that the comments were taken out of context and perhaps the Conservatives involved had made other additional comments about ensuring Canadian interests are satisfied. But giving them the benefit of the doubt presents a logical problem. When the US interests are at odds with Canadian interests, one has to give, and the speaker of the quote above makes it clear that it’s the Canadian one, which can be discarded.

Additionally, a benefit-of-the-doubt argument doesn’t hold up to the evidence of the last few years. With respect to copyright and digital rights types of issues, the Conservatives have not acted inline with Canadian interests. They disregarded popular Canadian opinion with respect to copyright policy in favour of foreign commercial and political interests. Even their latest contentious attempt still includes the worst of the US DMCA.

This is a betrayal of Canadian trust.

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