Meera Nair

throwing away opportunity

In Posts on October 1, 2011 at 11:29 am

With twenty-twenty hindsight, it is only too easy to look back on policy choices and sigh over missed opportunities.

What if, in 1959, the federal government under John Diefenbaker (1895-1979) had not scrapped development of the A.V. Roe (Avro) Arrow? To be sure it was a complex decision, but in that process, a great deal of Canadian expertise in the aerospace industry was thrown away. I am not speaking metaphorically: valuable documents, schematics and prototypes were destroyed; some of the greatest Canadian talent summarily dismissed. (Fortunately for them, many of those scientists and engineers received a warm welcome from NASA.)

What if, in 1932, a federal Combines Investigation (anti-competition) into the behaviour of the American film industry, had been tried in a federal court, instead of a provincial court? Commissioner Peter White had decisive evidence that American studios operated as a cartel in Canada. With the public increasingly aware that independent Canadian filmmakers were being denied exposure in Canadian theaters, opinion was favourable to introducing some manner of a quota to encourage domestic creative effort, as other countries had done. But confusion over constitutional authority ultimately saw the case tried in Ontario, where American studios had their branch-plant distribution offices in residence. The charges were dropped.

And what if Prime Minister Mackenzie Bowell (1823-1917) had carried on the work of his predecessor Prime Minister John Thompson (1845-1894) who fought long and hard to develop a Canadian publishing industry? Thompson had worked tirelessly for years to gain the right of Canadian book printers to supply their own market, through legitimate licensing agreements with U.K. publishers. Such an agreement would have developed a Canadian publishing sector with the potential, as even English officials noted, to command the entire North American market. (Imagine an alternate universe where Toronto, not New York, had been the centre of publishing for North America.) But Thompson’s untimely death left Canada without a champion and the publishing industry duly took form as a branch-plant operation.

[sigh]

But nothing cuts quite so sharply as watching your current government throw away an opportunity.

The Federal Government of Canada has reintroduced Bill C32, now under the name of Bill C11. The amendments remain unchanged. While there are some good elements (i.e., parody, satire and education can become legitimate categories of fair dealing, persons with print-disabilities have a somewhat broader allowance for works to be converted into an amenable format, and an exception for noncommercial mash-ups could facilitate individual creative effort) those measures pale beside the mandated obedience to technological protection measures (digital locks). No circumvention is permitted, even for the legitimate exceptions brought in by the same bill.

Music, film, publishing, software and gaming industries have members who use locks. Those same industries also have members who do not. It is a matter of choice; vendors will decide for themselves whether the use of locks supports the growth of revenue or not. Honourable James Moore, Minister for Canadian Heritage, declares this a market situation, in which the Conservatives are unwilling to intervene:

The movie industry has digital locks on some films and not others … An informed consumer makes the right choices. If people don’t want to buy a piece of software or a movie that has a digital lock, they don’t have to.

If Minister Moore is correct, and there is no reason to think otherwise, then there is no need to drag protection of locks into the Copyright Act. If a copyright holder wishes to prosecute an individual for copyright infringement, it makes no difference whether the individual picked a lock or not to commit that infringement. But since the Copyright Act governs not just consumer behavior but also creative adventurism, embedding protection for digital locks into the Act removes any balance in the system of copyright. If a work is locked, and there is no allowance for legitimate lock-picking, all exceptions become null and void. It is painful to watch Canada adopt American maiden ideas of 1998, namely their Digital Millennium Copyright Act (DMCA), instead of the subsequent international awareness, as of 2011.

By sheer luck (three minority governments) Canada avoided embedding protection for digital locks into law. Over the last 13 years we have had the luxury of watching how creativity and markets adjusted to digital technology set upon world-wide networks. Now there is a more measured awareness that new media technologies offer a promise that is greater than any of the earlier conceived perils. It is also well known that, the efforts of RIAA notwithstanding, the U.S’s own protection for digital locks did not ensure the growth of their music industry. At a conference at McGill University held in 2007, Bruce Lehman, architect of American efforts to protect digital locks at home and abroad, said: “… attempts at copyright control have not been successful, at least with regards to music.”

One official reason for embracing digital locks lies within the WIPO Internet Treaties. Christine Dobby writing for the Financial Post says:

The bill’s passage will also allow Canada to ratify the World Intellectual Property Organization internet treaties it signed in 1997. Canada is one of only a handful of the 89 signatory countries that has yet to implement the treaties

The number of countries that have implemented the treaty is irrelevant. The larger question is: what is the substance of the treaties? These treaties were conceived of by the sound-recording industry in the mid-90s (the height of digital angst) expressly to protect their assets upon a digital landscape. But it was by no means a unanimous international exercise — the language of the treaties was hotly disputed; Michael Geist gives the fuller story in From “Radical Extremism” to “Balanced Copyright” — Canadian Copyright and the Digital Agenda.  And, as he has also revealed, the Federal Government is aware that Bill C32/C11 goes far beyond what is required to comply with these treaties.

Which leaves only one other reason: to placate the United States. Steven Chase, writing for the Globe and Mail, does not mince words:

The Harper government is using its new majority to remove a long-standing trade irritant with the U.S. government by passing a law that will crack down on digital piracy and expand protection for copyrighted materials in Canada.

The salt in the Canadian wound is that the United States itself has softened its stand on digital locks. Under the guidance of the U.S. Librarian of Congress educational uses of some locked copyright material is permitted. So too is use of those materials for documentary films and noncommercial videos.

And, above all, the United States has the flexible language of fair use, with all the innovative potential that exception yields.  If we must look to American law for inspiration, there are better aspects to draw from.

Canada is one of only a handful of countries that has some autonomy in setting its own intellectual property agenda.  Our framework of trade with the United States was established through the Canada-US Free Trade Agreement (1988) and broadened through the North American Free Trade Agreement (1994). Arguably, newer trade issues have arisen since then – border flow and access-to-competition are important. But giving away the store now does not secure Canadian well-being in the future.* Whereas if Canada set priority on fostering creativity and innovation at home, the United States would not be our only significant market.

* Blayne Haggart has written about Canada’s domestic copyright autonomy in From “Radical Extremism” to “Balanced Copyright” — Canadian Copyright and the Digital Agenda. Commentary about Canada-U.S. trading issues can be found at his blog.

  1. Whose Arrow was it?

    From a 1959 Flight Global magazine, “Sir Roy Dobson, managing director of the Hawker Siddeley Group and chairman of A. V. Roe (Canada) Ltd…”

    See http://www.flightglobal.com/pdfarchive/view/1959/1959%20-%200654.html

    All records seem to indicate that all Arrow related IP was owned by British Hawker Siddeley Group and there is nothing to indicate they were going to sell it to anyone else.

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