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.