Meera Nair

Posts Tagged ‘Stephen Harper’

privacy in Canada – part two

In Posts on June 1, 2014 at 7:23 pm

The current legislative situation regarding privacy confounds many Canadians, given that Prime Minister Harper and key players in his coterie have staunchly argued on the principles of privacy to dismantle past measures of data collection, even when those measures were supported by Conservative allies. Specifically, the long-form census and the long-gun registry were discarded despite opposition from prominent experts in the areas of finance and law enforcement.

In 2010, amidst a firestorm of criticism, the Prime Minister cancelled the mandatory long-form census and replaced it with an optional household survey. Objections poured forth from the provinces, municipalities, communities, businesses, educators, social advocates, health organizations, and more, including a former Bank of Canada governor.

Most telling, Munir Sheikh resigned his position as Chief Statistician of Statistics Canada, rather than acquiesce to a decision that could only damage Canadian wellbeing. Effective policy cannot be made without reliable data. (Indeed, Prime Minister Harper is likely feeling that headache now, as he tries to combat the problems of the temporary foreign worker visa program, without accurate information concerning where needs can be filled without placing Canadians at a disadvantage.)

The Prime Minister viewed the census as an intrusion into Canadian privacy, despite the rigorous controls enforced by Statistics Canada with respect to disclosure of the data. (Individual information was never revealed; only aggregate information was provided through a controlled request system.) Writing for the Progressive Economics Forum at that time, Armine Yalnizyan explored the Canadian system in detail and in comparison to other systems, and made plain that while personal data is gathered, the results are never personal. No privacy commissioner had ever seen fit to question the operations of Statistics Canada. Yet discarding the census was clearly a matter of principle, or so it must be seen. Tony Clement, then-Minister of Industry, made these remarks to the Standing Committee for Industry, Science and Technology:

Our government’s reason for replacing the mandatory census with a voluntary national survey on the long form is clear. We do not believe it is appropriate to compel Canadians to divulge extensive private and personal information.

So despite compromising effective decision making in his own government, Prime Minister Harper stood resolutely on the issue of privacy.

For those who might still have doubts, the demise of the long-gun registry offers further illustration of our Prime Minister’s formerly adamant views on privacy. A dogged six year battle (from 2006-2012) was needed to remove the registry from use. And, not content to merely end the requirement of registration, Prime Minister Harper sought to ensure that all existing data be destroyed. According to Jason Kenney, then-Minister for Citizenship and Immigration:

… we can protect the privacy rights of Canadians, and there are hundreds of thousands of law-abiding Canadians who are legitimate firearms owners who believe that database undermines their privacy rights, and our commitment was, for that reason, to get rid of that data.

When the registry was eliminated in 2012, it was over and above the objections of Canadian law enforcement agencies. For instance, an RCMP evaluation of the registry argued that it served a vital function towards public safety:

The program is often misperceived by the media and the public as being solely a registry. The administration of this national public safety program might better be compared with a provincial Motor Vehicles Branch, which is also involved in safety training, licensing and registration and is an important resource to law enforcement. …  There continues to be public safety threats in Canada caused by both the deliberate and accidental misuse of firearms, mostly through non-restricted firearms (long guns). … Regulation of firearms provides for greater accountability for the firearm (p.17)

The Canadian Association of Chiefs of Police also came out forcefully in favour of the registry. Bill Blair, then head of the association, indicated that “officers use the registry up to 11,000 times a day, both to investigate and prevent crime.”

With the Prime Minister favouring a law-and-order agenda in Canada, it is more than odd that he chose to ignore the opinions of those involved in law-and-order. One can only infer that privacy reigned supreme among Prime Minister Harper’s principles and was not to be compromised, even for political gain.

Returning to current events, perhaps knowing that she would not be permitted to speak to the Standing Committee, Ontario Privacy Commissioner Dr. Ann Cavoukian does not mince words in a letter to the Committee Chair, dated to 16 May 2014. Calling for revision of the pending legislation, she concludes with:

Canadians have a constitutional right to be secure from unreasonable search and seizure, including with respect to personal information held by third parties. The expansive surveillance proposals and entrenchment of sweeping immunity for digital service providers brings this right into question.

Cavoukian, along with the Canadian Bar Association and others, have encouraged the Government to separate Bill C-13 into separate pieces of legislation, one to address cyberbullying and the other for lawful access. Minister MacKay has refused such proposals; perhaps Prime Minister Harper may yet see wisdom in such a move.

Update – June 3  Jill Clayton, Elizabeth Denham and Ann Cavoukian (privacy commissioners of Alberta, BC and Ontario, respectively) ask the Standing Committee to “… postpone hearings on Bill C-13 until such a time as the Privacy Commissioner of Canada can appear and speak to this Bill …” ; their letter (dated 2 June 2014)  is available here.

Update – June 13 — a tumultuous ten days  

The contested appointment of a new privacy commissioner, with a somewhat surprising outcome, the unwillingness of the government to amend either C-13 or S-4, and a timely reminder from the Supreme Court of Canada that Canadians have an expectation of privacy, means that there will be continued pressure upon the government to reconsider its actions. With unanimity, the Justices declared: “The two circumstances relevant to determining the reasonableness of … expectation of privacy in this case are the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.”

Josh Wingrove, writing for the Globe and Mail, solicited opinion from privacy expert David Fraser; he emphasizes that this alone does not “throw out” parts of S-4 and C-13, but “… adds to the ammunition critics have had with respect to a number of the provisions.” Fraser provides ongoing analysis at his blog; among his preliminary remarks was this gem: “Contrary to the views of most police agencies and the government of Canada, this information is not innocuous phone book information but, ‘rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage.'”


An open letter to the Right Honourable Stephen Harper

In Posts on June 2, 2011 at 5:55 am

June 2, 2011

Prime Minister’s Office
House of Commons
Ottawa, Ontario
K1A 0A6

Re: Bill C-32, An Act to amend the Copyright Act

Dear Mr. Prime Minister,

With Parliament set to resume under a majority government many Canadians expect legislative matters to move ahead quickly. Judging by your campaign platform, and recent remarks made by the Minister of Industry, Christian Paradis, amendments to the Copyright Act are imminent. I ask that Canadians be permitted a measure like American fair use. Despite strenuous opposition during the public consultation of 2009, the principles of fair use are viable in Canada. And such a measure is a vital component of the structure necessary to promote innovation in a digital economy. Canada is well-placed to carry out this change; the same cannot be said for all nations.

One of your peers, the Right Honourable David Cameron, bore the humiliation of hearing the founders of Google describe the unfitness of the U.K. copyright regime in terms of promoting innovation. The executives explained to Prime Minister Cameron that it would not have been possible to create Google in the U.K. as the application involves taking unauthorized snapshots of content from the internet at any given point in time. It was the latitude available within American law to capture these snapshots that lay at the foundation of the development of a world-leader in search engine technology. To his credit, Prime Minster Cameron ordered a review of copyright, culminating in the release of the Hargreaves Report last month. The report makes many recommendations but indicates that the U.K. cannot realistically implement fair use, not because of shortcomings in fair use, but because of the restrictions posed by EU law.

As Canada is not subject to such restraints, it would be a pity to neglect this opportunity. Fair use operates under a very simple principle; that copyright is not absolute. The limit of copyright’s ambit is to ensure that individuals may use the past to add to the future. Given that it is not possible to foresee precisely what combination of talent and input materials are needed to foster prize-wining literature, groundbreaking research, innovative digital technologies, or thought-provoking art, the best the law can do is to maintain its flexibility in what could be considered a legitimate, unauthorized use of copyrighted material.

Canadian copyright law includes an individual exception known as fair dealing. But this measure is very specific in purpose; at this time Canadians may consider unauthorized use of copyrighted material only if the intent is for research, private study, criticism, review or news reporting. Conditions are attached. One cannot randomly claim fair dealing; a case-by-case, multi-facetted inquiry is necessary to justify one’s actions. In 2004, the Supreme Court of Canada offered a framework to guide our use of fair dealing and Canadians are becoming familiar with this approach. You may be interested to know that this framework shows much similarity to the American model of fair use, together with some important improvements. Perhaps the most critical being that the framework itself is to be kept flexible as not even our Justices can predict what Canada will need in the future.

To that extent, Canadians are already on a path to fair use. However, a Canadian entrepreneur is constrained in a way that her American counterpart is not. While American fair use provides a similar set of categories, the list is prefaced with the words, “for purposes such as.” Herein lies the critical difference; creative and entrepreneurial-minded people can proceed with their ideas unshackled by premature regulation. A point best stated by Fred von Lohmann, a prominent American attorney, who observed that the United States tended to “innovate broadly first, and regulate narrowly later.”

Detractors of fair use insist that this measure is untenable even in the United States – they claim that fair use is fraught with uncertainty. Academic scrutiny does not support that claim, in fact there is compelling counter-evidence. Recent works by Pamela Samuelson and Barton Beebe (leading scholars in the United States) illustrate the predictability of fair use, particularly if one looks at similar applications of the measure. By that I mean consider the setting of each use – be it in art, or technology, or research etc.

Granted, if we look at American case history, fair use has not had an easy ride. But one could not expect that of any legal doctrine. The law grows with society and will be shaped by the promise and peril inherent to society itself. Instead of American history prejudicing Canada against fair use, the history illustrates the merit of the doctrine: interpretation of fair use adjusts over time and can correct for past misjudgment. Moreover, given the prescience of the Supreme Court of Canada, we are likely to be spared many of the growing pains our neighbors endured. There is every reason to be optimistic that flexible exceptions can serve Canada with distinction.

Unfortunately, the distrust between Canadian education and Canadian copyright collectives is limiting opportunity for everyone. While moderate voices can be found among educators and creators alike, their messages do not penetrate the institutional positions of the two sides. Indeed, I am tempted to wish a pox on the houses of Montague and Capulet alike. At issue is Bill C-32’s proposed inclusion of “education” among the categories of fair dealing. Copyright collectives insist this will lead to the wholesale appropriation of Canadian works by educational institutions. A perception that gains currency when set against the years of delay on the part of most educational institutions to actively educate personnel on legitimate use of fair dealing. Yet copyright collectives have wielded their monopoly power to absurd lengths, resulting in a proposed license that recast the very definition of copyright and sought compensation without considering the actual consumption of educational material. And caught in the middle, as always, are the writers, musicians and artists who feel short-changed by all parties.

My suggestion is that you remove the measure of “education” from Bill C-32’s proposed amendments. This will hold at bay those individuals who blithely assume education means free access. Yet it will not impede those individuals who understand fair dealing and choose to legitimately apply it. As was noted by the Federal Court of Appeal in 2010, the existing categories of fair dealing already support many activities that take place in educational settings.

There are teachers, librarians and students who have not waited for their institutions and have successfully educated themselves about the nuance of copyright and fair dealing. Those individuals make conscientious decisions of when fair dealing applies and when a creator has a legitimate claim to compensation. What has been lacking are effective means to directly negotiate with creators. However, that may be changing as the limitations of collective licensing led by third parties are increasingly evident. Messy as it may be to introduce different business models into the educational marketplace, such is the nature of markets. Competition is good, both in terms of content and business models.

In the meantime, if the controversial category of education is taken off the table, the larger needs of Canada can be served. Returning to where my story began, with Google and the U.K., the company’s submission to the copyright review emphasized that:

Fair use is regularly referred to as the key tool by which the U.S. fosters innovation … no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded

Thus, borrowing and modifying contemporary American and Israeli law*, I propose the following text for an amended Bill C-32:
… unauthorized use of a copyrighted work is permitted for purposes such as: research, private study, criticism, review, parody, satire, journalistic reporting, and quotation.

And as per our current Copyright Act, the appropriate requirements of attribution would be added. Whether we call this fair dealing, or fair use, is immaterial. What will matter is its flexible language. Taken together with the guidance provided by the Supreme Court of Canada in 2004, Canada’s innovative future would stand on promising ground.

Thank you for your time.


Meera Nair, PhD.
Burnaby, BC

cc: Honourable Kennedy Stewart, MP Burnaby—Douglas
cc: Honourable James Moore, MP Port Moody—Westwood—Port Coquitlam, Minister of Canadian Heritage and Official Languages

* When Israel amended its copyright law in 2007, they moved from narrow language under fair dealing to a fair use provision instead. This is quite in keeping with the Israeli effort to maintain a growth-oriented economy, under a guiding principle that innovation leads to more social welfare.