The 2009 Copyright Consultation: Setting the Record Straight
Toronto IP lawyer Richard Owens has posted an analysis of last summer's national copyright consultation in which he concludes that "if the aim of the Consultation was to canvass public opinion and discern trends, it failed." Given that the copyright consultation attracted greater participation than virtually any government consultation effort in recent memory, it is hard to see how it can be deemed a failure from a participation and public opinion perspective. In fact, the government itself clearly recognizes the exceptional participation last summer. Last week in the House of Commons, Conservative MP Cheryl Gallant noted:
The participation was unprecedented and we welcomed the comments of rights holders, users, intermediaries and everyday Canadians. We know that Canadians are concerned with copyright and its implications in our increasingly digital environment. This was demonstrated by the thousands of Canadians who took the time to participate in one way or another.
Owens arguments centre on the following four issues:
- The majority of the responses were form letters and those should be discounted.
- The majority of form letters were generated from a single website – CCER – that had the potential to "game" the system.
- Many of the submissions were not well-informed.
- The demographics of the consultation participants was not sufficiently representative of the Canadian public.
Form Letters
It is true that the majority of the 8,300 submissions were form letters. While a form letter requires less effort than a detailed original submission (though not much less than some of the two sentence Access Copyright inspired submissions that simply say creators deserve to be paid), they still represent a canvassing of the public and the desire of someone to ensure that their voice is heard on the issue. In fact, groups on both sides of the copyright debate offered form letters to their members or people they thought might be willing to participate. The recording industry had a form letter (only 8 people took the time to submit it), the publishing industry had a form letter (17 submitted it), and supporters of the private copying levy had a form letter (22 submitted it). Meanwhile, Access Copyright warned its members that "there is a danger your voices as Canadian creators and publishers will be drowned out by the chatter." It urged members to post their comments that creators deserve to paid. By far the most popular form letter came through the CCER site – by my count 5,025 submissions.
We could group all the form letters as their own category (the government essentially did that by giving each letter a single post followed by the names of the signatories). In that case, the "battle of forms" has a pretty clear outcome. Thousands took the time to express their concern with C-61-style reforms, while a surprisingly small number of people employed or working in the music and publishing industries did so. Contrary to Owens' contention, form letters provide a solid gauge of the public mood on an issue, particularly those with familiarity but not expertise.
CCER
Owens is also troubled by the fact that the single largest source of submissions came from a site operated by the Canadian Coalition of Electronic Rights, a group that represents modchip makers, as well as the involvement of the Torrent Freak site, which featured several posts on the consultation (including one of mine). The concern with Torrent Freak is certainly misplaced as it is widely used as a source of original reporting on digital issues. Indeed, Barry Sookman regularly references their articles in his Twitter postings (recent examples here and here).
As for CCER, Owens suggests that the site may have helped "game" the results by allowing anyone – including non-Canadians – to submit. Yet according to site operators, forms were only submitted by those who included a valid Canadian address. While it is certainly possible that a few people might submit using a fake Canadian address, it seems very unlikely that this would be a large number. In fact, there is little reason for non-Canadians to take an active interest in Canadian copyright reform and suggestions that they hope to benefit from the ongoing existence of Canadian-based torrent trackers ignores the reality that Europe is home to far more torrent tracker sites than Canada.
Lack of Expertise
Owens raises concerns about the lack of expertise of many of the submissions, arguing that many are "poorly informed." As examples, he points to submissions that express concern about lawsuits or U.S. pressure. While he might have pointed instead to submissions or articles claiming Canada is a piracy haven (such as this week's Canadian Business article), the claim that the broader public just does not understand copyright has been made before, chiefly by IP lawyers from large law firms. It formed the gist of Barry Sookman's critique of the Fair Copyright for Canada Facebook group and lies at the heart of claims that "endless consultation is useless."
It is true that there are varying degrees of legal expertise within the Canadian public. Yet surely someone should not require a law degree in order to participate in public policy. The responses from those only passively familiar with the specifics of copyright yet concerned enough to participate in the consultation, speaks volumes about the interest the issue has generated among Canadians. Not everyone may be an expert on the issue, but many know enough to know that they are troubled by the implications previous bills or the pressures for certain reforms.
With respect to the value of online activism, we will have to agree to disagree. Evgeny Morozov (who is a he, not a she) is a colleague of mine on the Open Society Institute Information Program Sub-Board and I respect his views. However, the Canadian experience – whether on copyright or protests against prorogation – is that the Internet can be a critically important tool in ensuring that more voices are heard in the policy or political process.
Demographics
Owens final concern involves the lack of women and francophones participating in the consultation. The gender imbalance within the copyright reform issue has been considered in greater detail by Laura Murray and is a real issue. As for the lack of francophones, perhaps it reflects the fact that francophones are not nearly as concerned with creator-focused copyright as some suggest (or perhaps many decided they wanted to do something else with their summer).
Regardless, there is no reason to suggest that these demographics somehow invalidate the voices of those who did participate. As Woody Allen says, "eighty percent of success is showing up." Thousands of Canadians did show up this past summer to speak out on copyright and attempts to paint that participation as an abuse of the system or invalid are not only disrespectful to the many people who actively and in good faith engaged in a government-sponsored policy process, they are simply wrong.
Canwest on Canadian Copyright Reform Plans
Canwest has a feature on the government's plans for copyright reform. The piece confirms that a bill is coming this spring. It also quotes an industry source as saying that plans to adopt a more liberal system have been dropped after lobbying from music, movie, and copyright collectives.
Clement on Canadian Broadband
The Globe reports that Industry Minister Tony Clement has acknowledged that Canada's broadband leadership has "vanished."
The Final Copyright Consultation Numbers: No Repeat Of Bill C-61
The copyright consultation concluded last fall and it seems worth reminding Canadian Heritage Minister James Moore and Industry Minister Tony Clement what Canadians had to say when they asked for their opinion on copyright reform. It has taken some time to calculate the final numbers as the government conducted a review to ensure that all were properly posted. There were ultimately more than 8,300 submissions – more than any government consultation in recent memory – with the overwhelming majority rejecting Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.
| Position | Number of Supporters |
| Submissions against another Bill C-61 | 6138 |
| Submissions in favour of shorter Copyright terms or against extending Copyright terms | 5520 |
| Submissions against anti-circumvention or in favour of limiting DRM/Digital locks | 6641 |
| Submissions in favour of stronger personal use/copying and backup protections including format shifting and time shifting rights | 6242 |
| Submissions in favour of an “open copyright” system | 16 |
| Submissions advocating abolishing or reforming Crown Copyright | 209 |
| Submissions opposed to adopting an American-styled DMCA | 262 |
| Submissions in favour of stronger fair use/fair dealing protections | 5962 |
| Submissions opposed to implementing WIPO | 19 |
| Submissions in favour of eliminating all copyright | 14 |
| Submissions against a three-strikes rule | 170 |
| Submissions that favour a “notice and notice” approach | 6027 |
| Submissions in favour of instituting a levy for file-sharing/monetizing P2P | 104 |
| Submissions in favour of greater exemptions for education/research | 74 |
| Submissions in favour of establish a good-faith defence that the user believed their use of a work was fair and non-infringing | 5958 |
| Submissions in favour of laws that are technologically neutral | 5617 |
| Submissions that argue individuals should be protected from liability as long as their use was private and non-commercial | 5987 |
| Submissions in favour of a parody/satire exemption | 80 |
| Submissions in favour of ISP neutrality | 76 |
| Submissions satisfied with current laws | 29 |
| Submissions calling for a stronger/updated public domain | 133 |
| Submissions against media levies | 45 |
| Submissions that favour low caps on statutory damages for non-commercial infringement | 47 |
| Submissions in favour of digital access to archival holdings | 29 |
| Submissions concerned about maintaining privacy | 23 |
| Submissions in favour of stronger penalties for copyright infringement | 11 |
| Submissions in favour of turning copyright into a crime | 5 |
| Submissions arguing for more protections/reforms for photographers | 21 |
| Submissions against works being available in digital or other forms for free and that argue creators need to be fairly compensated | 256 |
| Submissions arguing for stronger protection for writers and other artists | 79 |
| Submissions opposed to creating new/expanding exceptions | 108 |
| Submissions opposed to an expansion of fair dealing | 107 |
| Submissions in favour of notice and takedown | 24 |
| Submissions in favour of implementing WIPO | 187 |
| Submissions promoting a collective licensing scheme | 97 |
| Submissions in favour of high statutory fines | 9 |
| Submissions promoting longer copyright terms/opposed to shortening copyright terms | 5 |
| Submissions in favour of fining those who violate copyright laws | 1 |
| Submissions in favour of limiting/halting unauthorized file sharing | 153 |
| Submissions endorsing Bill C-61 | 54 |
| Submissions proposing the expansion of the private copying levy | 73 |
| Submissions supporting anti-circumvention measures | 46 |
| Submissions proposing a re-sale right | 25 |
| Submissions calling for broader Moral Rights protections | 24 |
| Submissions calling for ISPs to play a bigger gatekeeping role in stopping online piracy | 19 |
| Submissions proposing a graduated response penalty system | 5 |
| Total Submissions | 8306 |
Clement: Sticking to the Digital Transition Deadline
The Canadian Press reports that Industry Minister Tony Clement remains committed to meeting the digital transition deadline of August 2011. The change will affect hundreds of thousands of Canadians that access over-the-air television signals.
Government Plans National Digital Economy Consultation
The Canadian Press reports that the government plans to launch a national digital economy strategy consultation, with a discussion paper inviting public comment to be announced shortly.
Clement and Moore on C-61, Copyright Reform and Innovation
As Industry Minister Tony Clement and Canadian Heritage Minister James Moore continue to work on a copyright reform package, it is worth reviewing comments from both Ministers over the past year about C-61, copyright reform, and innovation. The vision presented is that the world has changed since C-61, Canada has flexibility in how it implements digital reforms, and that technology and the Internet should be embraced as a great opportunity.
Clement on C-61 in July 2009 at the Calgary roundtable:
"C-61 doesn't exist anymore, it obviously died with the last Parliament, and if you think that there are other ways that we should frame new legislation, by all means please bring that to our attention as well. Don't feel constrained by the formulation in C-61. James and I are of the view that already some aspects of that Bill are out of date such as the movement of technology."
Moore on the lack of consultation with C-61 in August 2009 at the Montreal town hall:
"Often politicians in the past, we know that around Bill C-61, the, I think the principal concern that people outlined with C-61 is that there wasn't enough consultation, that that legislation came forward and that people didn't have a chance to speak in the front end of the legislation before the cabinet had an opportunity to discuss and develop the legislation and that's what we're doing here."
Clement in July 2009 on change since C-61 at the Vancouver roundtable:
"It's no surprise I'm sure to people who've been following this issue that things have changed a great deal since that original piece of copyright legislation was passed by a previous parliament, and indeed things have changed since the last attempt at copyright reform occurred a year ago under Bill C-61."
Moore at the Digital Economy conference in June 2009:
"The old way of doing things is over. These things are all now one. And it's great. And it's never been better. And we need to be enthusiastic and embrace these things. I point out the average age of a member of parliament because don't assume that those who are making the decisions and who are driving the debate understand all the dynamics that are at play here. Don't assume that everybody understands the opportunities that are at play here and how great this can be for Canada. Tony is doing his job and I'm going to do my job and be a cheerleader and push this and to fight for the right balance as we go forward. The opportunities are unbelievable and unparalleled in human history."
Clement on the commitment to copyright reform following the Speech from the Throne in March 2010:
"I’ve been pretty clear to the Americans and in my public statements that we are moving ahead with copyright reform. The key is, from the American perspective, they want us to be part of WIPO, which is an international treaty on protecting intellectual property. We don’t have a problem with that, but we’re going to do it in a made-in-Canada way. We’re not just going to take what the Americans are doing or what the Europeans are doing. We are going to fit it to the Canadian context and I think that is the right thing to do."
Moore on time shifting in March 2009:
"New media isn't frankly new media anymore. I watch more television on my iPod than I do on an actual conventional television set or through my PVR. I think if you ask the average Canadian under the age of 20 how do they consume their media, you'll hear a very different story than you'll hear from Canadians over the age of 40."
Fair is Fair: Fix Fair Dealing Say Library, Education, Creator, and Consumer Groups
More than 25 library, education, creator, and consumer groups have issued a public letter calling on Industry Minister Tony Clement and Canadian Heritage Minister James Moore to adopt a flexible fair dealing approach. The letter argues for a "such as" approach to fair dealing by making the current list of fair dealing categories illustrative rather than exhaustive. The group points to three arguments – flexible fair dealing advances the balanced objectives of the Copyright Act, is consistent with Canadian values of fairness, and is consistent with international law. It concludes:
We ask that you amend fair dealing to embrace Canadian values of fairness so that fair dealing applies to all dealings that are fair. No single change to Canada’s Copyright Act could do more to address its long-recognized short-comings in a technologically neutral way. The change we ask for is simple and equitable: what’s fair is fair, and should also be legal.
Among the more than two dozen signatories include the Alliance for Equality of Blind Canadians, Appropriation Art, Canadian Alliance of Student Associations, Canadian Association of University Teachers, Canadian Federation for the Humanities and Social Sciences, Canadian Federation of Students, Canadian Library Association, Canadian Museums Association, Documentary Organization of Canada, Public Interest Advocacy Centre, and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.
Angus Shakes Up Copyright Landscape
Charlie Angus, the NDP Member of Parliament and musician, has a reputation for speaking his mind. As my weekly technology law column (Toronto Star version, homepage version) notes, last week, he did more than just speak out. Angus single-handedly shook up the Canadian copyright landscape by promoting two reforms – an extension of the private copying levy to audio recording devices such as iPods and greater flexibility in the fair dealing provision, the Canadian equivalent of fair use.
The iPod levy proposal sparked immediate controversy. Canada slapped a private copying levy on blank media such as CDs more than ten years ago. It has generated hundreds of millions of dollars, but previous attempts to extend the levy to devices were struck down by the courts as outside the scope of the law.
The Angus bill would amend the law by expressly bringing devices within the levy scheme. The problem is that few devices these days are limited to audio. In a world dominated by multipurpose devices that play audio and video, run applications, and provide phone service, it is next to impossible to separate the audio functionality. In other words, the levy ends up potentially covering everything – iPods, iPhones, BlackBerrys, Androids, iPads, and even personal computers.
Creator groups were quick to express their support for the proposal, but the Conservative government made it clear it is a non-starter from their perspective. Industry Minister Tony Clement labelled the plan "non-sensical," while Canadian Heritage Minister James Moore dubbed it the iTax, arguing "consumer deserve lower, not higher taxes."
Private members' bills rarely become law, but the levy issue seems destined to percolate for the foreseeable future. On the same day Angus tabled his bill, Bloc MP Carole Lavallée introduced a Standing Committee on Canadian Heritage Committee motion expressing support for the levy extension. It was supported by NDP and Liberal MPs (as well as the Conservative committee chair), which will send the issue to the House of Commons for discussion.
While the iPod levy proposal garnered the lion's share of attention, Angus' fair dealing motion may ultimately have a bigger impact. Under Canadian law, fair dealing permits the use of copyright works without permission for a limited set of purposes, including research, private study, news reporting, criticism, and review.
Fair dealing is regularly relied upon by the public – by students when they quote from texts, journalists in their reporting, authors writing books or book reviews, and scientists engaged in research. Yet because the fair dealing categories are limited, the provision does not currently apply to consumers recording television shows, artists creating parodies or satires, or businesses introducing innovative new goods or services.
Rather than adopting an exception-by-exception approach vulnerable to changing technologies, the Angus proposal merely opens to the door to other possible categories of fair dealing. In many respects, it is a made-in-Canada version of the U.S. fair use provision, since it shares similar flexibility, but is grounded in Canadian rules for determining what qualifies as fair dealing.
The approach is precisely what thousands of Canadians supported during last summer's copyright consultation since it seeks to strike a balance by ensuring that uses are fair, not necessarily free. Interestingly, while Moore and Clement were outspoken in their criticism of the levy proposal, they kept mum on the fair dealing motion, perhaps recognizing that it is consistent with their stated desire for a technology-neutral, forward looking approach to copyright.
Clement: Copyright Bill Before the Summer
The Wire Report reports that Industry Minister Tony Clement has confirmed that the government plans to introduce a new copyright bill before the summer recess. Clement also commented on ACTA, stating that it is his position that "whatever comes out of ACTA has to be compliant with our laws."
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