Canadian copyright shines

As readers may know, each year the Office of the United States Trade Representative (USTR) compiles assessments of intellectual property regimes around the world and places nations found lacking in their protection of (American) intellectual property on a ‘301’ list of varying degrees of disgrace. This process of judging nations is of questionable objectivity and has no international validity. Canada, having cemented free trade agreements with the United States decades earlier, can ignore its annual disgrace. Whereas those countries who sought trade agreements in recent years, or seek aid from the United States, have less independence with their domestic intellectual property laws. The USTR does not let niceties such as compassion enter discussion; as Michael Geist wrote last year:

…  Perhaps the most shameful inclusion in this year’s report are a series of countries whose primary fault is being poor.  For example, the list includes Guatemala, a small country the size of Tennessee with a per capita GDP of just  over $5,000. It is coming out of an economic depression that had a severe impact on rural income. … In response to past pressures and the conclusion of a trade agreement, Guatemala amended its copyright laws, toughened penalties, created a special IP prosecutor, and increased IP enforcement within the government. Yet the USTR included it with the following comment: ‘However, pirated and counterfeit goods continue to be widely available in Guatemala, and enforcement efforts are hampered by limited resources and the need for better coordination among all enforcement agencies.’  Indeed, there is no obvious reason for inclusion on the Special 301 list other than an attempt to lobby a country that ranks 123rd worldwide in per capita GDP to spend even more money enforcing US intellectual property rights rather than on education, health care or infrastructure, the sorts of expenditures that might improve the country’s overall economy and ultimately lead to reduced rates of infringement.

The Program on Information Justice and Intellectual Property (PIJIP) at American University’s Washington College of Law submitted comments upon the 2013 301 process, reminding the USTR that by their own language in the Trans-Pacific Partnership talks: “A robust copyright framework ensures that authors and creators are respected, investments (both intellectual and financial) are promoted, that limitations and exceptions provide an appropriate balance, and that enforcement measures are effective (p.4).”

PIJIP proposes, “the 301 Process should examine limitations and exceptions just as it does other aspects of foreign law. Again, as emphasized by the TPP: “An important part of the copyright ecosystem is the limitations or exceptions placed on the exercise of exclusive rights in certain circumstances. In the United States, for example, consumers and businesses rely on a range of exceptions and limitations, such as fair use, in their businesses and daily lives.” As such, the 301 report should also identify best practices which “reflect the U.S. commitment to balance and describe the benefits of flexible limitations and exceptions similar to U.S. fair use (p.5).”

Enter Canada. Of the ten practices identified under Copyright in the Digital Age and  Remedies and Enforcement (pages 6 and 7), with reference to the amendments implemented in Bill C-11, Canada serves as an example for six practices:

Copyright in the Digital Environment

• Adoption of “notice and notice” systems for limiting ISP liability that do not rely on censorship of online material without a court order, including in Chile and Canada.
  
• Implementing open ended, flexible exceptions that can adapt to technology and use changes, including in Korea, Israel, Philippines, and Malaysia, and are under consideration in countries including Australia.
  
• Offering flexible and open ended limitations and exceptions to liability [such as in Canada].
  
• Protecting free expression by promoting exceptions to copyright for non-commercial user-generated content, such as in Canada.
  
• Promoting exceptions to copyright for temporary reproductions for technological purposes (e.g. cache and RAM copies on internet), such as in Canada.
  
• Encouraging protections for cross border sharing of copyrighted works created under an exception for visually impaired, as proposed by the World Blind Union.

Remedies and Enforcement

• Limiting criminal remedies to infringing conduct that is both willful, for profit and on a commercial scale as is proposed for the U.S. under the Aaron Swartz Act and as exist in Canada.
• Promoting restrictions on damages to ensure proportionality to harm to rights owner, such as in Canada.
  
• Promoting safeguards on internet enforcement policies to avoid threats to free expression, business innovation and free trade. 
• Promoting explicit human rights checks and balances on intellectual property enforcement measures, such as would be required under the U.S. due process guarantees.

PIJIP took the novel step of citing countries lacking in due attention to limitations and exceptions, and proposed that the USTR should do the same. Canada made an appearance on this list as well; fortunately, we do not have too much to fix:

The United States should be concerned that Canada’s exception for the incidental inclusion of a work in other work does not protect deliberate incidental inclusion. Canada should be applauded for its recent court decisions that have made the interpretation of their fair dealing clause much more flexible and also for its new and innovative copyright reform that has expanded users rights and protections (p.12).

PIJIPs comments are supported by a number of individuals and organizations including Electronic Frontier Foundation and Public Knowledge.

sleep no more

Bill C11 passed third reading on Monday and Senate approval is underway. Michael Geist took the sting out of the loss on the issue of digital locks by reminding us how far Canada has come in terms of civic engagement with copyright. A fitting backdrop is Geist’s 2006 Hart House Lecture, Our Own Creative Land – Cultural Monopoly & The Trouble With Copyright. In that lecture, Geist pointed to the rising interest in copyright. “It is a story about how technology and the Internet are providing new opportunities for creativity, public participation, and individual expression.” Events made all the more exciting, given the stark contrast to past copyright policy-making which took place, as Geist wrote, “while Canadians slept.”

In his post of June 18 Geist lays out in detail how much better our Copyright Act is because of the widespread engagement by Canadians from all walks of life. Creators, consumers, educators, students, librarians, industry members …, all provided thoughtful commentary from the opening days of the 2009 public consultation through to the closing days of C11. While Geist could not have known it then, C11 lives up to his 2006 pronouncement that “Canadian policy makers must rethink policies grounded in ‘the way it was’ and instead chart a new vision in the broader public interest.” Canadians awoke and there is reason to be confident that sleep is a thing of the past. This is comforting, as our newly-modernized Copyright Act seems already poised for change.

It came as no surprise that within two days of third reading, Canada received its much desired invitation to the Trans Pacific Partnership. Writing for the Globe and Mail, Steven Chase and Bill Curry identified what had been a principal impediment to the invitation:

Mr. Harper has repeatedly touted joining the TPP as a key element of his government’s push to expand trade with fast-growing Asia but has faced difficulty persuading the Americans that Canada can be considered a major defender of digital intellectual property such as movies, TV shows and music.

Yet the invitation is less an offer of partnership, and more a directive issued to a branch-plant subsidiary. Writing for the Toronto Star, Thomas Walkom wryly observed that Canada’s begging has worked: “This week, Pacific Partnership members agreed to let Canada and Mexico join — on the understanding that they would have to abide by whatever the original nine had already decided (all of which is secret).”

Walkom also describes how the Trans Pacific Partnership trade agreement serves as a means to circumvent involvement in matters of trade by the World Trade Organization. Historically, the size of that world body meant a more level trading playing field – a levelling that did not always serve American interests. Canada’s eagerness to join TPP must come with some costs; he asks: “What did Canada give up to get inside this particular door?”

Some months ago Geist provided his submission to the TPP consultation process; available from his post of June 19. A prospect I found quite disturbing was the longer copyright term demanded by TPP; my submission is here. Unfortunately, the government has not yet provided the results of that consultation so the wider story of Canadian opinion remains unknown.

But sleep reigns no more.

 Afterword

This entry was to close with some poetry on the theme of sleep.  I had a few poets in mind but let Google weigh in on the selection. And that led to Sleep by Eric Whitacre – a story of musical creativity denied widespread enjoyment because of a copyright term. The bittersweet ending is a beautiful new work and a vow to shun a classic even when it becomes public domain material in 2038.

a new chapter

Michael Geist’s column in the Toronto Star signals the start of a new chapter for Canada and copyright. He reminds us that C11 has some features that bode well for creativity and innovation. But the mood of the article is sombre as Geist also provides a record of how much better the law could have been.

This was an opportunity for Canada to shine on the international copyright stage – Canada could have been seen as looking forward in the digital age. Albeit purely due to three consecutive minority governments, Canadians enjoyed the wider range of copyright analysis that only time could offer. To bring into law language that might have been crafted in 1998 seems at best illogical, at worst absurd. But behind the seeming lack of logic are the usual explanations: a Canadian government’s desire to please the United States, the power of collective organizations to ensure the primacy of their views, and the continued feint that copyright is the means to ensure success for individual Canadian creators.

The fact is: the presence of the mechanism of copyright does not guarantee income to any creator. A work must be desired before it might be transacted. And the outcome of a transaction is not always evenly distributed between all parties; creators must contend with publishers, homegrown companies must compete with multi-national firms, and new artists must always face the establishment. Success is contingent on many factors including education, opportunity, stature, industry and sheer luck.

Fortunately, some comfort can be had by considering past Canadian cultural policy development. Ryan Edwardson’s Canadian Content: Culture and Quest for Nationhood is good reading – he details the various missteps through the twentieth century that affected the development of Canadian cultural industries. While those engaged in contemporary industries will remind me that challenges abound today, from the vantage point of 2012 we can point to many twentieth century Canadian success stories in literature, music, film and art. Support could have been better, but Canada soldiers on.

Last week I had the pleasure of attending an IP Scholars Workshop, hosted by the University of Ottawa’s Centre for Law, Technology and Society. The theme was Multidisciplinary Approaches to Intellectual Property Law –  it provided a much needed clearing of cobwebs for me. My thanks to the organizers Mistrale Goudreau, Madelaine Saginur and Teresa Scassa – the conference spilled over with good conversation, exciting ideas and wonderful food. All in all, the event reminded me that copyright in Canada is much bigger than C11 and Access Copyright.

My contribution to the workshop was based on Harold Innis and his exploration of law, rooted as that was in political economy and communication. Among Innis’ writings is a remark that cries out to fair dealing: Law was found, not made. We find fair dealing, we do not make it. That the law is not yet designed to protect existing creative and fair practices is a disappointment but that does not refute the fairness of those practices. Likewise, despite the exhortations of Access Copyright to a blanket licensing plan that effectively removes fair dealing by contract, fair dealing is practiced in post-secondary institutions on a daily basis. The work ahead is to ensure that people know it.

more American than America itself

On Tuesday Michael Geist described a list of nations that chose a more lenient approach to digital locks than our current government has proposed with Bill C-11. On Wednesday he followed with a description of the wishlist of the Canadian Independent Music Association (CIMA) with regards to that same bill. Geist writes: “the music industry demands make SOPA look like some minor tinkering with the law.”

Perhaps not surprisingly, CIMA is not pleased with the proposed expansion of fair dealing to include parody and satire. In their submission concerning Bill C-11, they write: “It is unclear how ‘parody or satire’ made for commercial purposes will be treated under this exception, nor is it clear who would retain ownership for this material.”

Commercial undertakings have legitimate recourse to fair dealing. Success or failure will rest upon the outcome of the multi-facetted framework of inquiry set by the Supreme Court of Canada in 2004, via CCH Canadian. That this may be ‘unclear’ is simply a consequence of the fact that parody and satire are not yet exceptions in Canadian law and thus there are no past cases to refer to. This is hardly a good reason to deny the introduction of the exceptions themselves. With respect to CIMA’s second point, fair dealing is not a mandated transfer of copyright. The creator who brings a parody or satire to fruition, through the use of existing protected material, has copyright in the new creation. The copyright holder of the source material continues to enjoy the original privilege.

CIMA’s vision of what Canadian copyright law should look like far exceeds American demands. Even the original content of Bill C-11 was in excess of American treatment of digital locks. Together they conjure up a dreary reminder of Canada’s first Prime Minister’s efforts to create in Canada something more than just an extension of Britain on this side of the Atlantic. Sir John A. Macdonald envisioned a nation “more British than Britain itself.” Macdonald’s protectionist policies were in aid of promoting trade with Britain and protecting the institutions that had developed in the wake of the fur trade.* Then, as perhaps now, the focus was on exploiting Canada’s natural resources.

Yet, in this millennium, there is another dimension of American policy that is worth emulating. In Geist’s listing of countries, he also reminds us that Israel has avoided the issue of digital locks entirely. This may not seem a nod to American policy. But, contemporary Israeli policy decisions bear a striking resemblance to American intellectual property policies of its antebellum days. Via a concerted effort to democratize creativity, the United States made a remarkable journey from a predominantly agrarian society to a world leader in intellectual development in less than one century. Israel seems bent on a similar journey; in 2007 it not only avoided introducing protection of digital locks into domestic law but expanded the rigidity of fair dealing into the elasticity of fair use.  What struck me was the willingness of Israeli legislators to take the best that American law can offer and avoid the worst.

Canadian and Israeli copyright development make for intriguing comparison. In part because of a common history between the two countries; each stemmed from a British antecedent, came under the closer influence of the United States, and kept a bi-jural ancestry of copyright law. And both countries had a “fair use moment” where their Supreme Courts introduced a multi-facetted inquiry for fair dealing, similar to that followed in American law for fair use.  And, under the circumstances of each case, the Justices sought to limit the influence of commercial concern. Notably, the Israeli Supreme Court stated:

The use may be found to be fair in light of its purpose and character, even if those are commercially oriented, given that the use is found to promote important social values.… This is a product of our modern world, in which most of the activities that promote social values cannot be disconnected from financial motives. Prohibiting any commercial use of a protected work will discourage activities that society would have liked to encourage.**

With multiple Supreme Court decisions due this spring, perhaps Canada will see further development of fair dealing, to the benefit of commercial use of protected work.

I am enjoying comparing Canadian and Israeli developments in copyright; a  working paper is available through the Program on Information Justice and Intellectual Property at the Washington College of Law at American University. Comments on the paper would be most welcome.

* David Ralph Spencer, “Rhymes and Reasons: Canadian Victorian Labour Journalism and the Oral Tradition,” in Journal of Communication Inquiry (1992).

** CA 2687/92 Geva v. Walt Disney Company 48(1) PD 251 [1993]

correction to the Honourable Member

During the current debate concerning C-11 (the Copyright Modernization Act), the Honourable Member Scott Armstrong (CPC) sought to bolster the merits of C-11 by invoking the presumed support of Canadian students:

That is why the Canadian Alliance of Student Associations is in support of this bill. It states that “the government has demonstrated a commitment to…Canada’s education community”. It goes on to state that students across Canada are greatly encouraged. It goes on to state that “the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers”.

The Honourable Member omitted some details. Following the announcement of Bill C-32 (the predecessor of C-11), the Canadian Alliance of Student Associations (CASA) expressed favour at the expansion of fair dealing, but also expressed concern. From the CASA statement dated to 3 June 2010:

By expanding fair dealing as proposed in Bill C-32, the government has demonstrated a commitment to creating new, supportive measures in our copyright law for Canada’s education community … CASA members are concerned that this excellent education right may be lost in the debate around digital rights management, but we will continue to review the legislation and provide feedback to Minister Clement and Minister Moore to ensure that the federal government has a clear understanding of how this bill will impact Canada’s students, educators and researchers (emphasis mine).

CASA members are not the only Canadians concerned about the capacity of C-11 to give with one hand, and to take with the other. As Michael Geist has repeatedly documented (ex. here and here), thousands have expressed their wishes, to the Government of Canada, that the legality or illegality of circumvention of digital locks be determined by the purpose of the circumvention. Said another way, circumventing a lock for a legitimate purpose should not be infringement. Such an approach is consistent with the World Intellectual Property Organization (WIPO) Treaties of 1996.  (These treaties appear to be among the principal reasons for amending Canadian copyright law, despite the fact that the treaties were highly contested.*)

Even more curious about the Honourable Member’s remarks is his keen awareness of the industries that have come of age and repute, under our existing copyright law:

The Copyright Act was changed in 1988 and then again in 1997. Many of the technologies we enjoy today were not invented by then and many of the students who I used to teach, who enjoy these devices today, were not even born the last time the Copyright Act was changed. The current act does not respond to the opportunities and challenges provided by Web 2.0 and social media. It does not answer the needs of the multi-billion dollar industries of today that were in their infancy the last time Parliament amended the Copyright Act. For these reasons, we need to modernize Canada’s copyright laws and bring them in line with the demands of the digital age. (emphasis mine).

There is an absence of logic with the Honourable Member’s conclusion. If multi-billion dollar industries grow in the shadows of copyright, Canada would do best to keep those shadows as broad as possible.

* See Michael Geist, The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti-Circumvention Requirements in Michael Geist, ed., From ‘Radical Extremism’ to ‘Balanced Copyright’: Canadian Copyright and the Digital Agenda 204 (Irwin Law, 2010).

hanging out with librarians

Collective licensing is as deserving of a place in modern markets as any other business model, but our current situation is troubling.

Access Copyright describes its purpose as “to protect the value of intellectual property” owned by authors and publishers, “by ensuring fair compensation when their works are copied.” Value is an interesting concept – value can increase by market-demand. Value can also be artificially elevated by restricting the supply. What concerns me is that Access Copyright is able to control both axes.

And that leads to one plaguing question: How did we get into this mess? The situation now is almost surreal. How did a single organization manage to monopolize both their supply chain (the authors and publishers who produce the works) and an entire market (the educational community of English Canada)?* I decided to look for an answer to this question. Understanding how we arrived at this moment doesn’t make the situation better, but there’s comfort in knowledge.

These were my opening remarks from a panel discussion “Out of the Shadows” hosted by the BC Library Association on November 2, 2011. Fellow panelists were Paul Jones (CAUT) and Dan Burnett (Owen Bird Law Corporation). We addressed a variety of issues affecting the post-secondary community including Access Copyright licenses (or lack thereof), Bill C11 (previously Bill C32) and the political atmosphere.

The answer to my question lies in the pre-history of Access Copyright and the years that followed. Aiding my understanding were the works of Martin Friedland, Howard Knopf and Margaret Ann Wilkinson. Material was also drawn from the current annual reports of the Copyright Board of Canada and Access Copyright. My notes are available here.

It was a very enjoyable evening; my thanks to the BCLA for inviting me to participate.

* The province of Quebec operates with a different collective, Copibec, and relations there seem to be less contentious.

last week

Debate, a ruling, and two very good speakers made for an interesting week…

Tuesday, October 18, 2011

Debate has begun in the House of Commons with respect to Bill C11, the Copyright Modernization Act. The opposition parties voiced their concerns about the measures to protect digital locks and the government insisted such measures were necessary because: (a) copyright holders requested them; and (b) “digital locks are important for encouraging innovation” (see the opening remarks of Hon. Christian Paradis, Minister of Industry). Concurrent with his regular posts, Michael Geist is running a series titled The Daily Digital Locks Dissenter highlighting the submissions from other stakeholders who question the wisdom of absolute protection for digital locks.

In terms of the actual debate, it is disappointing that the government did not emphasize that the inclusion of education to fair dealing does not sanction rampant copying of copyrighted works in schools, as persistent misinformation has given currency. The ministers involved could have mitigated the situation by taking a clear stance at the outset. Instead, the field was left wide open for damaging allegations, such as these remarks from opposition MP Mr. Pierre Dionne Labelle:

What about lost royalties in Quebec because of the broadening of the concept of fair dealing? In fact, what is fair dealing? The law does not specify what is meant by fair dealing. This will result in the loss of $11 million annually for creators and copyright owners. Every year schools, CEGEPs and universities make 175 million copies of excerpts from protected works.  Let us remember that fair dealing is a loose concept that will put an end to the right to grant or deny authorization to use a work and the right to receive remuneration for the use of a work, thus affecting the rights of 23,000 authors and 1,000 publishers in Quebec.

What is so disturbing is the avowed determination that copyright is already a grant of absolute control and fair dealing an impertinent upstart that interferes with those rights. Mr. Mike Lake, Parliamentary Secretary for the Minister of Industry, attempted to clarify the inclusion of education but did not clearly stipulate that copyright has always functioned as a set of limited rights.

Wednesday, October 19, 2011

The Supreme Court handed down a landmark ruling: that linking to content on the Internet is not the same as publication of that material and thus poses no liability to the site who creates the link. The ruling in Crookes v. Newton was set upon the issue of defamation but has broader implications. John Barber, writing for the Globe and Mail, identifies the two dimensions of this case. It can be seen as a continued thrust to protect freedom of expression, or, a practical response to the modus operandi of the Internet.

Interestingly, the ruling contains three opinions in total.  The majority opinion, written by Justice Abella stipulates:

Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content.  And they both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers (para. 30).

Abella emphasizes the role of the Charter of Rights and Freedoms and the functioning of our communications’ environment:

This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law.  This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression (para 31) … Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications (para 33).

But, as should be expected, the range of that environment invites further thought. There were two additional opinions. Chief Justice McLachlin and Justice Fish write:

While we agree in large part with the reasons of Abella J., we respectfully propose a different formulation of the test for when a hyperlink reference in a text constitutes publication of defamatory matter to which it links (para. 46)…In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances.  Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text.  If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content (para. 48).

And, the final opinion came from Justice Deschamps. He too agrees with the majority opinion that a hyperlink in and of itself is not defamatory but presents further information:

Proof of publication is necessary in order to establish liability for defamation. “Publication” has an established meaning in the law of defamation. It refers to the communication of defamatory information in such a way that it is “made known to a third party”…. Thus, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood (para.55).

To resolve the traditional meaning of publication against the practice of hyperlinking, Justice Deschamps proposes:

A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation (para 57).

Thursday, October 20, 2011

Professor Adrian Johns spoke at the University of British Columbia on “The Intellectual Property Defense Industry and the Crisis of Information.” (I could not attend but am enjoying the audio coverage available here.) Prof. Johns posits that intellectual property is a consequence of how the actions of the IP Defense Industry have played out over time. He says, “… going back centuries, the IP police or their predecessors have pioneered practices, that at that point were at best alegal [sic] , or maybe even illegal, but over the years the law has expanded to embrace them.”

Adrian Johns is a professor in the Department of History at the University of Chicago and author of Piracy – the Intellectual Property Wars from Gutenberg to Gates.

Friday, October 21, 2011.

Against the turmoil of contemporary controversy it was a relief to take refuge in a different century and listen to Professor Geoff Turnovksy speak at Simon Fraser University. His talk “Worldly Writers and Worldly Readers in 17th-Century France” was part of the 2011-2012  Print Culture Series. Prof. Turnovsky gave an intriguing look at the relationships embedded to authorship in  the era of the French salon.  He spoke of the authorial modesty of the day and the worldly society made up of a community of readers. His 2009 work, The Literary Market–Authorship and Modernity in the Ancient Regime looks very interesting but I will have to wait (the SFU library copy is already out.)

Geoff Turnovsky is an Associate Professor in the Department of French Studies for the University of Washington.

throwing away opportunity

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.