MPs demand to see legal opinion on private copying provided to departments

Parliamentarians responsible for shepherding through modernizing reforms to the Copyright Act say they’re outraged that the government is withholding crucial information from them. On March 9, members of the House of Commons Standing Committee on Canadian Heritage heard from Canadian Heritage minister Hélène Chalifour Scherrer that bureaucrats in her department and at Industry Canada have received a legal opinion on whether changes need to be made to the private copying regime before Canada can implement or ratify the World Intellectual Property Organization (WIPO) Internet treaties. Making any changes could delay the process, but that opinion is being kept secret until staff determine whether the information is a form of advice to Cabinet that must be protected. At issue is whether or not foreigners are entitled to a piece of the private copying pie. Depending how the treaties are interpreted, this country’s private copying legislation may have to be rewritten to extend national treatment to other treaty members. The issue of fixing the controversial regime was slated to be debated after the WIPO treaties and ISPs are dealt with in the first phase of digital copyright reform, but its appearance in the current round of discussions threatens to derail the process. Bureaucrats have been telling MPs that they are seeking advice on whether or not they can release an opinion on the matter penned by Department of Justice lawyers, frustrating committee members of all political stripes and recording industry officials who are fed up with the delay. At his own standing committee appearance on March 11, Canadian Recording Industry Association (CRIA) counsel Richard Pfohl expressed his exasperation with the process. "It’s sort of like approaching the horizon," he told MPs. "Every time we approach it, it recedes." He says putting the government opinion on the table is crucial for moving forward. CRIA has, on two occasions, submitted draft legislation to the committee that it says could be passed to implement the WIPO treaties, but that has so far not been put on the table for discussion. "We can’t have a debate when we don’t know what the problem is…Our dialog right now is taking place in a vacuum." MPs share Pfohl’s sentiments. Liberal member Paul Bonwick has led the charge demanding that bureaucrats provide the committee with all the information it has. Following the minister’s appearance last week, he told Canadian NEW MEDIA that the delay is unacceptable. "The fact of the matter is that Industry (Canada) officials seem to be using this as a tactic or as a tool to have an impact on ratification of the WIPO treaty. (The committee is) sitting there saying if (private copying) is what they are telling the minister the major hurdle or obstacle to overcome is before ratification can take place, we are telling them, the minister, to share that information with us, and we can assess the validity of that issue based on our experience. "The officials are telling her (private copying is an issue), and then in the same breath saying no, they won’t share that information with us. That’s unacceptable. One thing has to be clear: the officials take direction from government. The officials don’t give direction to government. So, they’d better have that information for us. As far as I’m concerned, this is one step away from contempt of Parliament if they’re not prepared to give us the information we’re requesting." Secret legal opinions aside, the committee has been encouraged that within a matter of days, now the Canadian Heritage minister will table a proposed timetable that would see draft legislation submitted to Cabinet and Parliament this fall that could be passed by the winter of 2005. The proposal will likely be spearheaded by Heritage, and it remains to be seen if Industry Canada will play ball. Bonwick, after listening to the minister, had positive words. "When we’re told we’re going to get some sort of draft report in the next 10 days, that fits nicely within our timeframe. The objective here has always been to sign (the treaties) either in the fall of this year or in the winter of 2005, have this thing ratified. If the minister can follow through on that 10-days timeframe, as she’s articulated today, then that will be fine with us. It’s just simply a matter of overcoming these hurdles that Industry seems to be putting in place." While CRIA has been pushing for ratification soon, however, ISPs continue to seek assurances that the issue of liability won’t be left off the table. On March 4, the Canadian Cable Television Association, which represents ISPs offering high-speed cable Internet service, sent a letter to the ministers of both departments again asking them to ensure ISP liability is part of the first round copyright reforms. It writes: "Amendments to the Copyright Act intended to reflect the realities of the new digital environment cannot proceed without also providing explicit and comprehensive limitations to the liability of ISPs. The United States, Europe, Japan, Australia, and New Zealand have all recognized that providing explicit limitations to the liability of ISPs is necessary for the orderly transition to a networked, digital environment and that this issue is an essential element of the process to implement the WIPO treaties. "Failure to adequately address the fundamental issue of limitations to ISP liability as a short-term priority will threaten the successful achievement of the Government’s Connectedness Agenda and frustrate Canada’s attempts to be among the world leaders in promoting cultural and economic interests on-line." But, dissent to implementation of the treaties - with or without national treatment for purposes of private copying and ISP liability - may not be brooked easily by the committee. Asked which stakeholders are putting up the greatest fight, Pfohl told MPs only that opposition was based on fear of change. Pfohl was reminded by former committee chair Clifford Lincoln that previous attempts to speed the process have been met with opposition. "It’s not quite clear that it’s a one-way street," Lincoln said. Pfohl responded by saying that reform is a "torturous process. Everyone is afraid change in the Act will disadvantage them…We’re being left by the wayside while the rest of the world moves on." Pfohl went on to assure the committee that a made-in-Canada approach to WIPO implementation would likely not be challenged by other treaty members. There is no court to which the Canadian government might be taken if, for example, other members objected to Canada’s interpretation of the national treatment issue for foreigners. "The short answer is, there wouldn’t be any consequences for Canada."

MPs demand to see legal opinion on private copying provided to departments

Broadcast | March 17, 2004

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