Industry Canada responds to consultation criticism, says process was a ‘tremendous success’

OTTAWA—Responding to criticism that the federal government’s national copyright consultations “failed” last year, the Industry Department says online consultation is an “excellent method that allows for broad engagement” and that the 2009 consultation process was a “tremendous success.” In a controversial commentary released this week, called “Noises heard: Canada’s recent online copyright consultation process,” technology and intellectual property lawyer Richard Owens, counsel with Stikeman Elliott in Toronto, analyzed the government’s national, online consultation in 2009, and concluded that it “failed.” Owens wrote that the process did not verify the identity and citizenship of people making submissions, arguing that many comments came from foreigners and that a majority originated from a form letter orchestrated by an interest group. But as the government prepares to launch another national consultation this spring toward the creation of a digital economy strategy, the Industry Department has issued a defence of last year’s copyright consultations, which drew more than 8,000 online submissions. “Given the unprecedented level of participation, and the many important views and opinions received, the copyright consultations are considered a tremendous success. As Industry Canada considers future consultation processes, we will draw on the success and lessons we learned during the copyright consultations,” department spokeswoman Lauren Ehrenworth wrote to The Wire Report by email. “The Government welcomes all contributions from Canadians on issues relating to Canadian public policy. Engaging Canadians using online tools is an excellent method that allows for broad engagement.” Owens’ commentary said that a majority of submissions for the consultation came through a single IP address linked to a “letter-writing wizard” on the website of Canadian Coalition for Electronic Rights (CCER)—a lobby group he says represents companies in the business of circumventing copy controls on video game consoles and handheld devices. Owens wrote that, in his analysis, the CCER form letter accounted for 5,805 letters, or 70.23 per cent of all comments, and that consultation submissions cannot be relied upon for general trends. “If the aim of the Consultation was to canvass public opinion and discern trends, it failed,” he wrote. But in Industry Canada’s analysis, Ehrenworth said that “65 percent of the submissions are ‘form letters.’ Collectively, these submissions were based on eight different source letters.” Owens also wrote that he believes many of the submissions were non-Canadian, and that it is unclear how many of the form letters were duplicate submissions using “bogus names since they all were sent using the same IP address.” In an interview, Owens told The Wire Report that the consultation showed the limitations and risks relating to online consultation. “They create opportunities for misinformation and for going off the rails in ways that previous consultations haven’t,” he said. In a statement posted this week on its website, the CCER wrote that Owens’ “criticisms and accusations represent a direct attempt to discredit and silence the voice of thousands of Canadians who made submissions to the 2009 public consultations on copyright using a form letter made available by the CCER ubmissions that may be the contrary view of Mr. Owens’ clients.” The CCER said its letter-writing wizard was intended to encourage citizens with like opinions to participate in the consultation, and that the letters could be edited to express personal views. The CCER said its “position runs parallel with that of many Canadian consumers,” and that the organization has “evolved from acting solely as a peer industry coalition to informally include the role of consumer advocate.” The coalition added that submissions made through the wizard required a Canadian address and postal code, and that foreign mailing addresses were not accepted. Owens acknowledged that he represents clients who have an interest in producing the report, but said he prepared it on his own behalf and on his own time. “It’s a personal comment, but I don’t think anybody should be under the illusion that I don’t have any duties or affiliations, because I clearly do,” he said. Owens said his concerns about the consultation could be addressed by requiring validation from people who submit comments. He said geo-location technology could be used to locate IP addresses. The government could also issue certificates to those who wish to take part in consultations—without requiring participants to release their information publicly. Owens suggested that foreigners could also participate in the consultations, but if they do they should be identified as such. Michael Geist, a digital rights advocate and the Canada research chair in Internet and e-commerce law at the University of Ottawa, said in an interview that Owens did not provide enough evidence to conclude there is a problem with foreigners contributing submissions. He said there would be little reason for non-Canadians to want to participate. “This notion that the consultation was gamed is put forward with absolutely no hard evidence to suggest that was the case. In fact I think it was the opposite,” Geist said. Geist added that other groups across the policy spectrum, including those representing copyright holders, also offered form letters, and that collectively, they should not be discounted. “If you’re trying to gauge public views on this issue, even a form letter represents something,” he said. According to Geist’s analysis of the consultation submissions, which he posted on his blog, the CCER form letter accounted for 5,025 submissions. sdoyle@thewirereport.ca

Industry Canada responds to consultation criticism, says process was a ‘tremendous success’

Broadcast | April 23, 2010

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