LibertyVoice

The Hill Times runs a special section on copyright in its upcoming issue.  I've contributed a piece on the lessons we can draw from the copyright consultation that I'll post shortly, but in the meantime there is an important interview with Industry Minister Tony Clement.  Of particular note is his perspective on the current state of copyright law in Canada. Notwithstanding the persistent fear mongering, Clement gets it absolutely right:

"Canada and its international trading partners each have distinct copyright policies, laws and approaches for addressing the challenges and opportunities of the internet. Canada's current framework provides strong intellectual property protections and our copyright laws apply in the digital context, including on the internet. Moreover, Canada's regime for the protection and enforcement of intellectual property rights is fully consistent with its international obligations."

This statement is correct and should be repeated again and again, particularly when the U.S. ambassador to Canada and copyright lobby groups try to persuade the Canadian public otherwise.

The government continues to play catch-up with the copyright consultation submissions (my submission appeared on Friday).  It has just posted two interesting contrasting submissions: the Canadian Music Creators Coalition, actual Canadian musicians who warn against DMCA-style reforms and Don Hogarth, CRIA's communication person, who warns against people who warn against DMCA-style reforms.

Last night's 22 Minutes on CBC had a must-see segment parodying some of the arguments for Canadian copyright reform.

Last night's 22 Minutes on CBC had a must-see segment parodying some of the arguments for Canadian copyright reform.

The Canadian Film and Television Production Association's copyright consultation submission includes the following comment that warns against targeting P2P as part of copyright reform:

The CFTPA submits that it is almost a truism to state that the success of new business models for audiovisual content on the Internet depends on it remaining an open-access platform that is an effective vehicle for the distribution of authorized content. Typically, Peer to Peer (P2P) file sharing has been, and remains, one of the primary vehicles for the distribution of unauthorized audiovisual content. It therefore could be argued that content providers, including Canadian independent producers, would benefit from measures that would have the effect of targeting P2P applications.

The CFTPA notes, however, that P2P file sharing is also being used for the distribution of authorized content on the Internet. Likely the most well-known such example is the CBC's attempted distribution of its Next Great Prime Minister program using Bit Torrent. In addition, a number of independent producers are also using Bit Torrent and similar P2P applications as the primary means for distributing original digital content to their audiences…

The Association therefore considers that amendments to the Copyright Act aimed at reducing the proliferation of unauthorized copyrighted material on the Internet must be fashioned in a manner that deters infringing behaviour without either choking off legitimate forms of content distribution and/or targeting specific applications or protocols.

The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.

The Government is still in the midst of posting copyright consultation submissions. Yesterday it posted a notable response from the CRTC yesterday.  While it was somewhat surprising for the Commission to participate in the consultation, it used the opportunity to focus on three issues – tariff setting for radio, streamlining Copyright Board proceedings, and expanding the Copyright Act to legalize copying for private use. The CRTC argues that using fair dealing to legalize issues such as time shifting and format shifting would not provide sufficient certainty.  Instead, it favours several new rights for consumers distinct from fair dealing.  These include:

• time-shift radio and television programs;
• format-shift copyright material they own from one device to another for private use; and,
• make copies of copyright material they own for private use.

The CRTC did not recommend any compensation systems for these new copying rights.

I spoke earlier today with an official at Industry Canada regarding the thousands of missing copyright consultation submissions.  I was advised that there was a huge spike of submissions toward the very end of the consultation period.  There were slightly over 8,100 submissions, a huge number in comparison with virtually any other government consultation in recent memory (consultations typically draw 50 to 100 responses). The government is committed to posting all submissions in HTML format due to access concerns.  Since many submissions arrived in PDF form, there is considerable coding work underway.  Their current plan is to continue to post submissions with the hope of completing the job over the next few weeks.  For those seeking to search the posted submissions, CCER has just launched a search engine of consultation submissions.

For the past week, I've been receiving daily emails from Canadians asking if I know why their copyight consultation submission has not been posted.  The website currently includes some submissions for every day the consultation was open (September 15th), yet there are thousands of submissions that are still not up.  My last update accounted for just over 4,000 submissions and there are rumours that the final number topped 7,000 (10 times the number of submissions in the 2001 consultation).  While some delay in processing and posting all of those submissions is reasonable, the lack of information about the situation is not.  The government opened the consultation with a strong commitment to openness and transparency.  That should continue to the end of the consultation with a full update on status of the missing submissions, the reasons for the delays, and the anticipated date for the posting of all submissions.

The Canadian Independent Record Production Association has posted its submission to the copyright consultation.  Notwithstanding the industry's repeated assurances that it does not plan to file lawsuits in Canada, CIRPA calls on the government to establish "the retention of data by users for a sufficient period to allow for effective law suits to be launched and brought to completion."